Tamil Nadu

StateCommission

FA/489/2012

A.RAGHUNATHAN - Complainant(s)

Versus

JAIN HOUSING AND CONSTRUCTION LTD - Opp.Party(s)

K.R. SANKARAN

09 Apr 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,CHENNAI

BEFORE :  HON’BLE THIRU JUSTICE R.REGUPATHI                     PRESIDENT

                                                           THIRU.A.K.ANNAMALAI                                                JUDICIAL MEMBER

                                                                                               F.A.NO.489/2012

(Against the order in CC.No.44/2010, dated 30.05.2012 on the file of DCDRF, Coimbatore)

DATED THIS THE 9^th DAY OF APRIL 2015

A.Raghunathan,

S/o.Arumugam Pillai,

Rep.by father R.Arumugam Pillai,

69/25, Ayyanar Sannathi Street,                                    M/s.K.R.Sankaran

Muthupattinam, 4^th Street,                            Counsel for Appellant / Complainant

Karaikudi 630 001.

 

-vs-

1.Jain Housing and Construction Ltd,

   Rep. by MD Mr.Sandeep Mehta,

   11, Somasundaram Street,

   T.Nagar, Chennai 600 017                              M/s.K.Kumaran

   Branch At 28, Kamaraj Road,                    Counsel for Respondents 1 & 2 /

   Opp. To Circuit House,                                                  Opposite parties 1 & 2

   Coimbatore 18.

2. Mr.Sandeep Mehta,

    11, Somasundaram Street,

    T.Nagar, Chennai 600 017.

3. Mr.Johny,

    Sr.General Manager,

    Jain Housing and Construction Ltd,           3^rd Respondent /3^rd opposite party

    28, Kamaraj Road,                                           Served called absent

    Coimbatore 18

    Now having office at :Udayampalayam,

    Coimbatore 28.

          The appellant is the complainant filed a complaint before the District Forum against the opposite parties praying certain relief.  The District Forum allowed the complaint.  Against the said order, the appellant / complainant filed this appeal praying for to setaside the order of the District Forum in CC.No.44/2010, dated 30.05.2012.  

          This appeal coming before us for hearing finally on 25.03.2015, upon hearing the arguments on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.

A.K.ANNAMALAI,  JUDICIAL MEMBER

          The unsatisfied complainant is the appellant.

2.       The complainant entered into an agreement with the 1^st opposite party on 23.1.2007 for the purchase of flat No. (SN II floor Block II) measuring 1054 sq.ft in the Jains Cambrae East Apartment to be built by the 1^st opposite party at Coimbatore.  The agreed price of the flat including the space for car park is Rs.27,71,173/- apart from that he has to pay Rs.2,21,340/- towards registration and other charges  and Rs.1,22,095/- towards service and other statutory charges.  Out of the total amount of Rs.31,14,608/- a sum of Rs.68923/- has to be paid as construction advance and the balance should be paid in installments.  On completion of the project, the complainant has to pay maintenance charges at Rs.1.25 per sq.ft per month for a period of 24 months in additional to a sum of Rs.25,000/- towards corpus fund and for future amenities should be paid at the time of handing over of the flat after completion.  The entire construction to be completed within a period of 18 months from the date of commencement of construction with a grace period of 3 months for the delay in construction, a compensation should be paid at the rate of Rs.6.50 per sq.ft per month.  The project commenced during the month of September 2006, but it was delayed and the flat was handed over to the complainant for the month of June 2008 after a delay of 16 months.  The amounts are paid in installments as per stage by stage and 95% of the cost of the flat was paid in advance, though it is payable on completion of 4^th floor as per the approval plan the complainant is deprived of his right of access to the 30 feet road since which was not owned by the opposite parties at the time of approval of plan and not provided gates in the compound of eastern side and thereby adopted unfair trade practice and even for the operation of lift construction have been completed only after 18.06.2009 behind the schedule.  They have collected various charges towards taxes, water supply not made as agreed supplying only  through water tankers and in the construction door frames are all inferior in quality and not provided teak wood as per the agreement and thereby alleging deficiency in service claim compensation praying direction for payment of compensation towards delay in handing over , unfair trade practice, non provision of amenities and compensation for mental agony etc by filing consumer complaint before the District Forum, Coimbatore.

3.       The opposite parties denied the allegations in their written version except to admit entered into an agreement to construct the flat for the complainant and alleging out of 128 flat owners, only a very few purchasers filed frivolous complaint and accepted possession of flat by signing the declaration confirming the various terms and conditions and provisions of amenities as per the agreement and for the delay they cannot claim any compensation by taking into account of various problems in the execution of project.  The complainant did not come forward to take possession of flat even though it was ready for occupation since he was not ready to pay interest for the delayed payment and the opposite parties since handed over the flat without insisting for the interest dues he had taken possession.  Hence on the basis of declaration and taking possession the complainant is estopped from claiming otherwise.  The  approval of plan was already obtained by the previous owners for the construction of residential cum commercial complex in approval No.1844/04/LPA3 dated 10.1.2006 along with Approval Plan No.155/2005.  The opposite parties subsequently applied for revision of the plan and obtained revised approval abutting mainly 100feet wide Avinashi road and 30 feet wide side road with 4 gates on the eastern side of the property was shown for indicating purpose, as found in the site and in the papers furnished by the erstwhile owners.  The approval itself was only on the basis of the 100 feet road and not on the basis of 30 feet road.  The non-provision of gates, as shows in the complaint has not caused any disturbance or difficulties to the purchasers.  The LPA has stated in their letter that the 30 feet is not taken for the purpose of calculating the FSI and for provision any approval which is not relevant to the plan approval and will not be put any hardship.  The complainant has taken possession much later from the date of certificate issued by the Electrical Inspector and water supply is being made through lorry for dearth of drinking water.  The entire flat has been built in terms of construction agreement and has been handed over to the full satisfaction of the complainant.  The complainant cannot ask for refund of taxes already paid and there is no deficiency or unfair trade practice on their part.

4.       On the basis of both sides materials and after an enquiry the District Forum by taking into consideration of the materials and also on the basis of Advocate Commissioner report under Ex.C1 allowed the complaint in part by directing the opposite parties to pay a sum of Rs.10,000/- towards the difference in cost for replacement  of  the  entrance  door shutter of the Apartment as per specification mentioned in the agreement to the complainant and to pay a sum of Rs.5000/- as compensation for mental agony and to pay cost of Rs.1000/-.

5.       Not satisfied with the award and aggrieved by the impugned order the complainant has come forward with this appeal contending that the District Forum erroneously rejected the genuine claims of the complainant on the basis of declaration affidavit for the above construction, amenities and specification of the building which is nothing to do with the delay in handing over the possession.  The affidavit has not been attested by anybody, and not attested by a Notary Public and also wrongly held due to claim and counter claim between the parties, the amounts were denied and the judgment relied upon by the District Forum is not relevant in the case regarding the non provision of access road as per the approved plan, the District Forum disallowed the claim for compensation by citing a civil suit filed by the Flat Owners Association which is nothing to do with the complaint which completely over looked and thereby the appeal is to be allowed and set aside the order by grating the relief as prayed for in the complaint.

6.       We have heard both sides contentions, arguments and carefully considered the written submissions and materials placed before us in this regard.  It is the admitted case of both sides that the complainant was entrusted with a flat by entering into an agreement with the opposite party as per document under Ex.A2, dated 23.1.2007 and further payments of entire costs of the flat and alleged certain defects regarding the defects in construction, non providing of amenities adopting an unfair trade practice filed complaint against the opposite parties for which the District Forum after an enquiry granted only a relief of compensation for a sum of Rs.10,000/- towards the difference in cost for replacement of the entrance door shutter of the apartment as per specification mentioned in the agreement to the complainant and also to pay a sum of Rs.5000/- towards compensation for mental agony due to the deficiency in service and to Rs.1000/- as costs.  On perusal of the prayer of the complainant in his complaint that he has prayed for the directions to pay compensation for the delay of 16 months at the rate of Rs.6.50 per sq.ft works out Rs.1,09,618 with 18% interest in handing over the flat and to pay Rs.2414/- towards VLT and pay back Rs.5000/- collected towards incidental charges and to pay compensation for Rs.6,00,000/- for the unfair trade practice for non providing access for 30’ feet road and to pay Rs.2,00,000/- for mental agony and expenses suffered by the complainant in providing amenities and the District Forum has not taken into consideration of such prayer except to consider regarding the delay in handing over the flat and for non providing of 30 feet road which was discussed but relief was not granted on the ground that there was a civil suit already filed by the Flat Owners Association and as far as the delay in compensation is concerned since the complainants are also payment for delayed interest as claimed by the opposite parties in paying their installments dues and thereby which was not granted.  The opposite parties relied upon Ex.B1 the declaration affidavit dated 18.9.2009 executed by the complainant and taken possession of the flat and the opposite parties in the above affidavit declaration he has solemnly affirmed as follows :

          “..This is to confirm that it I have taken possession of flat No.SI, II floor in Block No.02, measuring 1076 sft. at Jains Cambrae East, Sowripalayam village, Coimbatore South TK, Coimbatore District.  I am satisfied with the construction and provisions of amenities in the abovesaid Flat and Plot as per the agreement dt.18.09.2006 and I have no claims as regards the construction and amenities and specifications of the building, Plot and aforesaid flat…”

Since because of the affidavit the complainant is estopped from acting or claiming any relief inspite of defects and deficiency alleged which is not correct.  It is quite obvious that any anxious purchaser of the building / flat would always ready to occupy as soon as it is completed and handed over under various circumstances like want of place for occupation to avoid unnecessary payments towards loan, EMI, Rent etc and in those circumstances if the declaration is not given he would not be given possession and in those circumstances the owner purchaser has no option except to accept the declaration as dictated by the opposite parties.  In this case it is admitted by the opposite parties it was executed, without prejudice to the rights of the complainant and the District Forum simply because of the declaration Ex.B1 denied the reliefs when the complainant having materials to prove the allegations against the opposite parties as per the agreement dated 18.09.2006.  It is also admitted that the possession was taken as per the declaration affidavit under Ex.B1, dated 18.9.2009 16 months and as per the agreement the possession has to be given within a period ie., 18months + 3 months grace period and thereby there was a delay of more than 16 months.  It is admittedly there was a delay and the opposite parties contended that since the complainant has also caused delay in payment and thereby they demanded a sum of Rs.45,214/- towards delay interest without insisting  the  same  given possession and thereby the District Forum observed since there are claim and counter claim which is to be decided by the Civil Court and denied the relief which is not correct, because the complainant alleged that the opposite parties have already collected substantial amount of total costs and  thereby the opposite parties cannot claim any delay interest when they themselves have collected the money against the agreement and thereby we are of view that the complainant is entitled for the delay compensation which is claimed at the rate of 6.50 sq.ft for 16 months. By considering the facts and circumstances of the case instead of granting at the rate of 6.50 per sq.ft we are inclined to grant a sum of Rs.1,00,000/- in all as a compensation for the same in handing over the possession of flat with the delay of more than 16 months from the agreed date of handing over of possession.  As far as the claim for unfair trade practice in not providing 30 feet road which is agreed upon in the approved plan, the District Forum regarding the same in its order in Point No.3 of the order in para-20 and 21 observed

          “According to the complainant that the opposite parties have indulged in unfair trade practice by showing 30” road on the eastern side of the apartment and approved site plan of the project whereas they are purchased only 1/3 of the property on the eastern side for 30” road and have not provided access to the flat owners like him on the above 30” on the eastern side of the apartment.”  Para-20

          “Resisting the above claim, the opposite parties contents that the property is abutting mainly the 100” wide Avainasi road, and the 30” wide road with four gates on the eastern side of the property was shown for indicative purpose.”  Para-21

by which by accepting the contentions of the opposite parties and on the basis of Ex.B1 affidavit it was denied as we have already pointed out Ex.B1 cannot be cause for denying the deficiency for such relief even though as per Ex.B1 for Flat Owners Association filed a Civil suit against the opposite parties and Local Planning Authority relates to permanent injunction from encumbrancing the property since the opposite parties have denied the provision of 30” road agreed by them as per their own facts and admitted in their written arguments that the approval for this was only on the basis of 100” road not on the basis of 30” road and thereby the entire access is only through 100feet road and when the complainant obtained the clarification regarding the FSI even though the Local body had given reply in their letter dated 13.5.2010 stating that the 30feet road is not taken for the purpose of calculating the FSI and for providing any approval and the complainant contended that even at the time of the approval the 30 feet road was not acquired by way of ownership by the opposite parties they have shown as access road in their plan and got the approval by making false representation and as if owner of 30’ road land and got in the project approved by the Local Planning Authority shows 30 feet road on the eastern side of the apartment with four gates of 7.2.mtrs wide each in the compound wall leading to the 30 feet road.  But there are no gates in the compound on the eastern side and thereby the complainant is deprived of his right of access to the 30 feet road and thereby the opposite parties failed to comply with the directions of the Local Planning Authority included the piece land for 30 feet road in the site plan before purchasing it as if their own on 20.2.2006 itself and the purchase was made only on 9.6.2006 thereby committed unfair trade practice.  These contentions are not disputed or denied by the opposite parties but simply contended only for the purpose for access road in the 100 feet road they were shown and no defect or loss was caused to the complainant.  This would itself established the unfair trade practice by luring the consumer  / complaint without actually provided the same and thereby we are of the view that the complainant is deprived of his right to access for ever as agreed to provide by the opposite parties in purchasing the flat for which he is suitably compensated and accordingly we are inclined to grant a sum of Rs. 50,000/- as compensation for adopting unfair trade practice and the opposite parties are to be restrained from this practice in future on their projects.

7.       Further the learned counsel for appellant /complainant relied upon various rulings in their favour reported in

1.Vinoth Kumar –vs- Punjab State Electricity Board and others reported

   in I (2011) CPJ 194 (NC),

2.H.N.Shankara Shastri –vs- Assistant Director of Agriculture, Karnataka reported (2004) 6 SCC 230

3.2004 (5) SCC 65 in the case of Ghaziabad Development Authority –vs- Balbir Singh

4.II (2009) CPJ 191 (NC) in the case of Delhi Development Authority –vs- R.K. Meena

5.AIR 2005 Supreme Court 1397 in the case of Haryana Urban Development Authority –vs- Jeewan Asha Garg

6.AIR 2005 SC 1487 Hariyana Urban Develoment Authority –vs- Smt.Dropadi Devi,

7.II (2009) CPJ 337 (NC) Delhi Development Authority –vs- Ashok VIJ

8.II (2003) CPJ 77 (NC) Dr.Poornima Advani & Ors –vs- India Builders Corporation and Ors

9.II (2003) CPJ 25 (NC) Binduvikas Erectors Pvt.Ltd –vs- Nand Kumar Dattajirao Patil

10. IV (2009) CPJ 138 (NC) in the case of Madhya Pradesh Housing Board  & Anr –vs- G.S.Daheria

11.III (1998) CPJ 698 (NC) in the case of S.N.Arunagiri –vs- PL.Sundaram

12.I (2011) CPJ 109 (NC) in the case of D.S.Yadav –vs- Indian Railway Welfare Organization and ANR

13.I (2007) CPJ 234 (NC) in the case of Manoj Khurana –vs- Rajender Banchor & Anr

14.III (2014) CPJ 124 (CAL) in the case of L & T Finance Limited –vs-Anup Kumar Bera & Anr

15.and also relied upon the recent judgment reported in I (2015) CPJ 731 (NC) related to the negligence and deficiency  and unfair trade practice  it is observed as follows:

                 “If builders, for his own reasons, is not able to construct flat of agreed size and constructs a bigger flat, he cannot, in absence of a contract to the contrary, ask purchaser to pay for excess construction.”

         “In a given case, the purchaser may have financial capacity to purchase the flat of a particular size only.  He may not have the means to pay for a large flat.  Therefore, it would be unreasonable if he is asked to pay for a large flat when the area of the flat has not increased on his instructions and he is under no contractual obligation to pay for the excess area constructed by the builder.  If the builder, for his own reasons, is not able to construct a flat of the agreed size, and constructs a bigger flat, he cannot, in the absence of a contract to the contrary, ask the purchaser to pay for the excess construction.”

From these precedents also we are of the view that the complainant is entitled for the above reliefs apart from the relief granted by the District Forum against which no appeal was filed by the respondents / opposite parties by allowing the appeal for the same.

          In the result, the appeal is allowed in part apart from the reliefs already granted by the District Forum in this case in addition 

1. it is further directed the opposite parties are jointly and severally directed to pay a sum of Rs.1,00,000/- to the complainant towards for the delay compensation in handing over the
2. completed flat mentioned in the complaint with delay against the agreed period
3. The opposite parties are directed to pay a sum of Rs.50,000/- to the complainant towards for the deficiency of service in adopting unfair trade practice by failing to provide 30” access road and other facilities connected with it as agreed upon and also desist  from such practice in their future projects
4. These directions shall be complied within a period of six weeks from the date of this order.
5. There will be no order as to costs in the appeal.

 

A.K.ANNAMALAI                                                          R.REGUPATHI

   (J) MEMBER                                                                PRESIDENT

 

INDEX; YES /NO

VL/D;/PJM/CONSTRUCTION