These first appeals No.815 of 2015 and 992 of 2015 have been filed by M/s. Managing Director, M/s. Mint Homes (P) Ltd.  and Managing Director/Executive Director, M/s. Sri Renga Property Developers Pvt. Ltd. respectively against the order dated 2.7.2015 passed by the State Consumer Disputes Redressal Commission, Tamilnadu, Chennai in C.C. No.09 of 2011.

2.      Brief facts of the case  are that the 1^st and 2^nd respondents who are the original complainants entered into an agreement of construction on 22.6.2008 with the appellant in F.A. No.992 who was OP NO.1 for a plot admeasuring 1926 sq. ft. bearing site No.59, and to deliver the possession of the unit on or before 31.12.2008 and in case of delay the OP No.1 had agreed  to pay a compensation of Re.1 per sq. ft. per month for the delayed period.  On 23.7.2008 a sale deed was executed by the OP No.1 in favour of the 1^st and 2^nd respondents for land admeasuring  1926 sq. ft. bearing site No.59, in the layout named as Renga’s Greenlands. The 1^st and 2^nd respondents had paid the entire amount of Rs.70,00,000/- plus the service tax of Rs.3,24,304/-  to 3^rd opposite party. On 24.6.2009, the appellant in F.A. 815 who was OP No.2 and the OP No.1 entered into Memorandum of Understanding (MoU) for the projects of Renga’s Green Lands, Renga’s Green Wood and Renga’s Cedar for marketing and construction of the projects. On 21.7.2009, the OP No.1 and OP No.2 entered into construction Management and Marketing Agreement and Investment Agreement.  OP No.1 sent a letter on 17.8.2009 to 1^st and 2^nd respondents/complainants that they had signed an agreement with the Mint Homes (P) Ltd./OP No.2 and that the project will be commenced as soon as possible hopefully by September, 2009. On 25.9.2009, OP No.1 and OP No.2 sent letters to the 1^st respondent that construction for the Villa no.59 will be restarting by the middle of October, 2009 and also stated that the construction of the Villa will be completed by 30.6.2010.  On 16.11.2009, 1^st and 2^nd respondents signed a  declaration cum undertaking for the construction of the Villa no.59 in respect of construction by OP No.2. When the construction did not proceed, the 1^st and 2^nd respondents filed complaint CC No.9 of 2011 before the State Commission, against the Ops.

3.      The complaint was resisted by both the Ops. However, the State Commission after considering the submissions of the parties allowed the complaint as under:-

“In the result, the complaint is allowed and the opposite parties 1 and 2 are directed to refund the money of Rs.73,24,304/- with 12 % interest P.A from the date of complaint till realization towards the purchase money paid by the complainant to the 1^st opposite party for the purchase of villa No.59, Rengas Greenlands at Coimbatore and on condition that the complainant shall re-convey the plot by way of sale executed in favour of the complainant by 1^st opposite party under Ex.A.3. For which the opposite parties may retain a sum of Rs.10 lakhs towards the cost of the land from the amount of Rs.73,24,304/- to be paid to the complainant and Rs.10 lakhs to be returned to the complainant on re-convey of the plot to the 1^st opposite party and also the 1^st and 2^nd opposite parties shall pay a sum of Rs. 1,00,000/- as compensation for mental agony, deficiency in service and other ordeal caused by the opposite parties and Rs.5000/- as cost to the complainant.

The directions shall be complied within six weeks from the date of copy of this order.”

4.      Against the above order of the State Commission, OP-1 has preferred Appeal No.992 of 2015, and OP-2, Managing Director, M/s. Mint Homes (P) Ltd.  has preferred Appeal No.815/2015 before this Commission.

5.      Heard the learned counsel for the parties and perused the record. Parties shall be mentioned as complainants and OPs as given in the order of the State Commission.

6.      The learned counsel for the appellant/OP-2 stated that though he entered into the shoes of OP-1 midway during the construction of the property in question, OP-2 was not paid any amount by either OP-1 or the complainants. It was expected that after the agreement of OP-2 with OP-1, the money will be paid by OP-1 to complete the remaining construction work of the said property. As no money was given to OP-2, so it was not possible for OP-2 to make any progress in the construction work.  Hence, no deficiency can be attributed to OP-2.

7.      The learned counsel for OP-1 stated that though the original agreement of the complainants was with OP-1, but at the mid stage of construction work when about 80% of the construction work was complete, there was an agreement between OP-2 and OP-1 for getting the remaining work competed by OP-2 only. This agreement was dated 21.7.2009. There was no condition in this agreement that the payment was to be made to OP-2 for completing the construction. In fact, OP-2 obtained a Declaration dated 10.3.2010 from the complainant that OP-2 shall henceforth be totally responsible to complete the construction and OP-1 shall not be liable for any shortcoming in the matter. Thus, it is clear that OP-2 was to complete the building from his own resources and the money spent would have been made good by OP-1 later on.  Though the complainant had paid all the money, the other allottees of the project had not paid the amounts due and therefore, OP-1 was not in a position to complete the construction work. Hence, the services of OP-2   were taken by the OP-1 as per the agreement dated 21.7.2009. As the OP-1 did not have enough money to complete the construction work itself, it was obvious that OP-2 was to complete the remaining construction work from its own resources first. Moreover, the learned counsel emphasized that the declaration dated 10.3.2010 given by the complainants clearly states that the complainant shall not make any claim or demand personally or through the court of law against OP-1. Thus, the complainant is bound by this Declaration and he was not entitled to file this complaint against OP-1. The learned counsel prayed that it is only OP-2 who was responsible for completion of the work and the order of the State Commission holding OP-1 also liable alongwith OP-2 is not tenable and should be set aside.

8.      The learned counsel for the complainants stated that the complainant had given full amount of about Rs.70,00,000/- for construction of the building on land purchased by the complainant. As per the original agreement between complainant and OP-1, the construction was to be completed and possession was to be given by 31.12.2008. However, the construction work was delayed and possession was consequently delayed. Meanwhile, OP-1 entered into an agreement with OP-2 on 21.7.2009 giving the responsibility for completion of work to OP-2.  However, there was still no progress in the construction work. As the complainant was interested in completion of work as early as possible, he signed a Declaration on 10.3.2010, wherein he accepted that the work may be completed by OP-2.  The complainant also agreed that no claim or demand or legal action will be taken against OP-1 if the building is completed before the stipulated time. But if the building is not completed within the stipulated time, the complainants are totally competent to initiate legal action against OP-1 also without violating the Declaration. The learned counsel further stated that complainant is not concerned about the mutual agreement between OP-1 and OP-2 and particularly in what way the money transaction takes place between them.  It was emphasized by the learned counsel that both OP-1 and OP-2 are hand-in-gloves and are trying to save their skin by shifting responsibility on each other. The complainants are the sufferers and therefore the order passed by the State Commission is totally justified. It was also pointed out by the learned counsel that the Appeal No.992 of 2015 has been filed with delay of 98 days and the reasons for such delay given in the application for condonation of delay are not justified. Thus, this appeal deserves to be dismissed on this ground also.

9.      I have given a thoughtful consideration to the arguments of the learned counsel for the parties and have examined the record. From the record it is clear that the complainants had given money to OP-1 for completion of the construction work in time. However, OP-1 could not complete the construction work and OP-1 entered into an agreement with OP-2 wherein the responsibility was shifted to OP-2 for construction of the remaining work. This clearly shows that OP-2 has entered the shoes of OP-1 so far as completion of construction work was concerned. Thus, the complainant has same relationship with OP-1 as with P-2 so far as his construction work is concerned. If the money was not transferred from OP-1 to OP-2, why did OP-2 take responsibility to complete the work within the stipulated period given in the Declaration. The agreement entered between OP-1 and OP-2  also does not clearly show anything about transfer of money. Thus, apart from this agreement, what was the understanding between them is not clear. As the construction was not completed by both of them in time, both of them would be treated as deficient qua the complainants. The total money was paid to OP-1, Therefore, OP-1 is clearly deficient in not providing the services and not completing the work. The mention in the Declaration of complainant not taking any legal action or making any demand against OP-1 does not absolve OP-1  because this Declaration of the complainant is qualified by the completion of construction work in time. This should be clear from the following portion of the Declaration:

“We declare and undertake that we will not make any claim or demand personally or through a court of law against M/s. Sri Renga Property Developers Private Ltd., as of now and hereinafter especially for the inordinate delay already caused in completion of the construction and in case I make any further claim from them in future, it would not be valid, provided that the construction of our Villa House is completed with basic amenities like Electricity, Senitation, Corporation water and RO treated water and handed over to me on or before 31-10-2010.”

10.    The Declaration signed by the complainants dated 10.3.2010 gives testimony to the fact that the complainants accepted OP-2 as their builder company which would complete the work in time i.e. 31.10.2010. The construction work remained pending from 21.7.2009 till 31.10.2010 due to OP-2 not doing any construction work. Thus, OP-2 is also deficient so far as construction of the said building is concerned.

11.  Thus, based on the above discussion, it becomes clear that both OP-1 and OP-2 have been deficient on their parts in so far as the construction of the building in question is concerned. The order of the  State Commission is, thus based on the correct appreciation of facts and the legal position in this regard. Accordingly, I do not find any merit in these appeals and the same are dismissed and the order dated 2.7.2015 of the State Commission is upheld. No order as to cost for these appeals.