Tamil Nadu

StateCommission

CC/83/2015

Dr.S.Jagatha W/o.Dr.P.V.Venkatraman - Complainant(s)

Versus

Jain Housing and Constructions Ltd., Rep by its Managing Director Sandeep Mehta, (Formerly Jain Hous - Opp.Party(s)

M/s. J.Saravanavel

20 Apr 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

BEFORE         Hon’ble Thiru. Justice R.SUBBIAH                        PRESIDENT

                      Thiru. R. VENKATESAPERUMAL                           MEMBER

 

C.C. No.83/2015

DATED, THE 20^th DAY OF APRIL 2022

Dr. S. Jagatha,

W/o. Dr. P.V. Venkatraman,

No.33, First Main Road,

Lake Area,

Nungambakkam,

Chennai – 600 034.                                                                                                                              .. Complainant.

                                                       - Versus -

1. Jain Housing and Constructions Ltd.,

Represented by its Managing Director

Mr. Sandeep Mehta,

(Formerly Jain Housing, A Partnership Concern,

Represented by its Partner Mr. Sandeep Mehta),

9^th Floor, HIGH GATES,

No.82, DGS Dinakaran Salai,

M.R.C. Nagar,

Chennai – 600 028.

 

2. Mr. Sandeep Mehta,

Managing Director,

Jain Housing and Constructions Ltd.,

9^th Floor, HIGH GATES,

No.82, DGS Dinakaran Salai,

M.R.C. Nagar,

Chennai – 600 028.                                                                                                                        .. Opposite parties.

 

Counsel for Complainants                        : M/s. J. Saravanavel

Counsel for Opposite party                      : M/s. K.R. Moorthy

 

This complaint having come up for final hearing before us on 12.04.2022  and on hearing the arguments of both parties and upon perusing the material records submitted by both parties this Commission made the following order in the open Court:-

ORDER

HON’BLE THIRU.  JUSTICE R. SUBBIAH, PRESIDENT

            Present complaint was filed by the complainant alleging deficiency in service on the part of the opposite parties along with a prayer to direct the opposite parties to refund the total amount paid towards the sale consideration amounting to Rs.24,51,259/- with interest at the rate of 24% p.a. and Rs.10,00,000/- towards compensation for the mental agony caused to the complainant with cost.

1.         Brief facts necessitating the filing of complaint:

            The 1^st opposite party is a company incorporated under the Indian Companies Act, 1956 and carrying on business in the field of construction and development in the name and style of Jain Housing.   The 2^nd opposite party is the Managing Director of the 1^st opposite party.   The complainant was allured by the news paper advertisements made by the opposite parties, in respect of their residential project at Padur situated on OMR named INSELI PARK.   The complainant had approached the opposite parties to book a flat in the proposed complex during the year January 2007.  It is pertinent to note that the opposite parties promised apartments in the area of about 11 acres on the IT corridor with several features like swimming pool, club house with gymnasium, children play area, security intercom, meditation hall, sports facility etc.  The opposite parties also promised premium specifications in the construction like high quality vitrified tiles, teakwood main door frame, wooden doors, windows with anodized aluminum, spacious kitchen with granite slab, high quality chromium plated fittings and high quality wall painting.  The complainants visited the site of the opposite parties and after believing the promises made by them had booked a flat in apartment named ‘INSELI PARK’, Flat No.7 in Block ‘G’ in the 11^th Floor measuring an extent of 1176 sq. ft. for total sale consideration of Rs.35,32,120/- as per the cash flow chart given by the opposite parties. Pursuant to which, the complainant had paid an advance amount of Rs.50,000/- on 28.02.2007.  Promoters Agreement was also executed between the 1^st opposite party and the complainant on 28.02.2007.  The opposite parties promised that the start of the project would be on 15^th March 2007 and the fully constructed apartment would be handed over to the complainant during December 2009. 

2.         As per the payment schedule, the complainant has paid by cheque has been 28.02.2009 to 15.12.2009 totaling to Rs.24,51,259/- and the opposite parties had issued valid receipts for the same.  Consequently, a Sale Deed dt.26.07.2007 was executed by the opposite parties in favour of the complainant with respect to the undivided share of land in the said project measuring to an extent of 354.49 sq. ft vide Document No.7649/2007 on the file of Sub-Registrar, Tiruporur.   It was promised by the opposite parties that the construction would be completed and possession would be handed over by December 2009 with 3 months grace period but the opposite parties failed to handover the flat in time which caused great mental agony to the complainant.  On 10.12.2009, the opposite parties intimated the revised schedule thereby extending the completion date to December 2010 which is one year behind the schedule.  In the mean time, the opposite parties by letter dt.30.01.2010 offered a discount of Rs.151/- per sq. ft. as a compensatory measure towards the delay in completion and extended the completion date to before April 2011.  Considering the delay in completion of the project repeatedly, the complainant issued legal notice dt.03.10.2011 to refund the amount of Rs.24,51,259/-, the opposite parties received the notice but did not reply to the same.   Hence, the complaint was filed for the reliefs as mentioned above.

3.         By the written version filed by the opposite parties, they had admitted the proposed construction of apartments in the name and style of JAINS INSELI PARK and also, admit the purchase by the complainant.   However, they contended that they never promised to complete the project within a specified time period as the delivery schedule is coupled with various parameters such as payment mile stones and force majeure condition.  However, it was contented that the complaint for cancellation of the Sale Agreement and refund of the amount was not maintainable before the Consumer Forum as their existed no jural relationship of consumer and service provider between the complainants and the opposite parties.  It was submitted that only the Civil Court has the Jurisdiction to try the above case.   Further, the opposite parties cited force majeure clause for the delay in completing the construction as to the non-availability of labour and raw materials.  The Promoter also agrees to compensate the Allottees @ Rs.9/- per sq. ft. in case of any delay in construction beyond the above stipulated period provided the Allottees makes the stage payments without any default.  The opposite parties have not committed any deficiency in service or unfair trade practice as they have invested a huge amount in purchase of the land and their sole intention was to complete the project at the earliest. Thus, they sought for dismissal of the complaint.

4.         The complainants filed his proof affidavit and submitted documents marked as Ex.A1 to Ex.A32.  The opposite parties filed their proof affidavit but no documents were marked on their side.

5.         Points for Consideration:

1. Whether the complaint is maintainable before the Consumer Commission?
2. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties as alleged by the complainants?
3. If so, for what relief the complainants are entitled to?

6.         Point No.1 :

Facts made out from the documents submitted by complainants:-

1. The complainants in response to the advertisements made by the 1^st opposite party had agreed to book a flat No.7 in Block ‘G’ in the 11^th Floor measuring an extent of 1176 sq. ft. super built up area for a total sale consideration of Rs. 35,32,120/-.
2. That the Jains Inselli Park Brochure was marked as Ex.A1;
3. That the Details, Plans, Brochure Cost and Specification given by the opposite parties was marked as Ex.A2;
4. That the Local Planning Authority Approval was marked as Ex.A3;
5. That the Panchayat Approval was marked as Ex.A4;
6. That the payment receipts were marked as Ex.A5, Ex.A8, Ex.A11, Ex.A16, Ex.A19 & Ex.A26;
7. That the copy of cash flow chart and fund details were marked as Ex.A6;
8. That copy of Promoters Agreement was marked as Ex.A7;
9. That the letter of the opposite parties to the complainant were marked as Ex.A9, Ex.A12, Ex.A15, Ex.A17 & Ex.A18, Ex.A20 to Ex.A22, Ex.A24, Ex.A27 & Ex.A28;
10. That the Customer Data Sheet was marked as Ex.A10;
11. That the Sale Deed was marked as Ex.A13;
12. That the Debit Notes (3 Nos.) was marked as Ex.14;
13. That the letter of the complainant to the opposite parties was marked as Ex.A23;
14. That the cost working chart was marked as Ex.A25;
15. That the legal notice of the complainant dt.03.10.2021 was marked as Ex.A29;
16. That the acknowledgement card was marked as Ex.A30;
17. That the materials, photos etc from the opposite parties website was marked as Ex.A31;
18. That the advertisement issued by the opposite parties was marked as Ex.A32;

That the complainants have filed the complaint for refund of the amount of Rs.24,51,259/- with interest at the rate of 24% from the date of payments and a compensation of Rs.10,00,000/- with cost to the complainant.

7.         Heard the learned Counsel for complainant.  Though the opposite parties had filed written version, proof affidavit and written arguments, the Counsel for the opposite parties did not adduce any oral arguments.  In the written version, the opposite parties had raised an issue with regard to the maintainability of the complaint.  It is contended by the opposite parties that the Consumer Commissions has no jurisdiction to try the case and that the appropriate forum would be the Civil Court and thus prays for the dismissal of the complaint on the issue of jurisdiction. We are unable to accept the above contention, for the reason that once the Sale and Construction Agreements were entered between the parties for the development of the project and sold out the apartment the Construction Agreement derives the colour of “Development Agreement” and the jural relationship of ‘the Developer’ and ‘the Purchaser’ comes into existence between the parties and the agreed total payment amount to be considered as ‘Consideration’.  Hence, the issue with regard to the non-maintainability of the complaint before the Consumer Commission does not arise.  Thus we answer point No.1 in favour of the complainants holding that the complaint is maintainable before the Consumer Commission.

8.         Point No.2 :-

From the admitted facts as mentioned above, we could see that the opposite parties had issued alluring advertisement inviting public to purchase the apartments, the residential project called “INSELI PARK”  to be constructed  by the  opposite parties who is the builder and the complainants after visiting the opposite parties and on seeing the model flat of the project had agreed to book a flat in project “INSELI PARK”, Flat No. 7, Block ‘G’, 11^th Floor measuring an extent of 1176 sq. ft. super built up area for at the cost of Rs. 35,32,120/- and both the opposite parties assured the complainants that the project would be completed by December 2009.   The complainants in pursuance of the agreement has made the total payment of Rs.24,51,259/- out of the total sale consideration of Rs. 35,32,120/-.

9.         The opposite parties for the delay in construction and handing over of the schedule of properties had cited the reason of ‘force majeur, i.e. due to global recession, labour problem, shortage of basic materials etc., which are beyond their control.  But they have not produced any materials in support of their contentions.  Hence, it is only a mere bald statements made by way of defence by the opposite parties without any proof for the same.   As per Ex.A7, Promoters Agreement entered between the parties, the flat was promised to be handed over to the complainant within 30 months from the date of Agreement.  As per Ex.A5, Ex.A8, Ex.A11, Ex.A16, Ex.A19 & Ex.A26, the opposite parties had given receipt for the total amount paid by the complainant.  Thus the opposite parties had not denied the receipt of the amount.   Hence, they are legally obliged to construct and handover the apartment to the complainants as per the agreed schedule found in the agreement.  Therefore failing to comply the terms as clearly found in the agreement after receipt of amount by citing irrelevant reasons clearly amounts to deficiency in service.  Thus we hold that the opposite parties had committed clear deficiency in service and unfair trade practice and we answer point No.2 in favour of the complainants and as against the opposite parties.

10.       Point No.3:-

As we have come to the conclusion that the opposite parties have committed deficiency in service and unfair trade practice the complainants should be compensated in terms of money. It is evident as per the payment receipts, Ex.A5, Ex.A8, Ex.A11, Ex.A16, Ex.A19 & Ex.A26 issued by the opposite parties that they have received Rs.24,51,259/- from the complainants.  Thus complainants are entitled for refund of the said amount with interest at the rate of 18% p.a. from the date of complaint till realization.  Further, they are also entitled for a compensation of Rs.5,00,000/- for the mental agony and hardship suffered by him.  Cost of Rs.10,000/- is awarded to the complainants.   Thus, we answer point No.3 in favour of the complainants.

In the result, this complaint is partly allowed as follows :-

1. The opposite parties shall refund the sum of Rs.25,51,259/- (Rupees Twenty five lakhs fifty one thousand two hundred and fifty nine only) with 18% interest from the date of complaint till realization to the complainants;
2. Compensation of Rs.5,00,000/- (Rupees Five lakhs only) for the mental agony & hardship;
3. Cost of Rs.10,000/- (Rupees Ten thousand only) towards litigation expenses. 
4. On compliance of the above directions, the complainant shall re-convey the undivided share of land to the opposite parties at the expenses of the opposite parties.

 

 

R.VENKATESAPERUMAL                                                                                                                    R.SUBBIAH                        

             MEMBER                                                                                                                                    PRESIDENT

                                                       

 

List of Documents filed by the complainants:-   

Ex.A1	16.01.2007	Copy of Jains Inseli Park Brochure
Ex.A2	16.01.2007	Copy of details, plans, brochure cost and specifications given by the opposite parties
Ex.A3	20.02.2007	Copy of local Planning Authority Approval
Ex.A4	27.02.2007	Copy of Panchayat Approval
Ex.A5	28.02.2007	Copy of receipt for payment by the complainant
Ex.A6	28.02.2007	Copy of flow chart and fund details
Ex.A7	28.02.2007	Copy of Promoters Agreement
Ex.A8	05.03.2007	Copy of receipt for payment by the complainant
Ex.A9	09.04.2007	Copy of opposite parties’ letter to the complainant
Ex.A10	12.04.2007	Copy of customer data sheet
Ex.A11	19.04.2007	Copy of receipt for payment by the complainant
Ex.A12	18.07.2007	Copy of opposite parties’ letter to the complainant
Ex.A13	26.07.2007	Copy of Sale Deed
Ex.A14	09.10.2008	Copy of Debit Notes (3 Nos.)
Ex.A15	09.10.2008	Copy of opposite parties’ letter to the complainant
Ex.A16	22.11.2008	Copy of receipt for payment by the complainant
Ex.A17	19.06.2009	Copy of opposite parties’ letter to the complainant
Ex.A18	10.12.209	Copy of opposite parties’ letter to the complainant
Ex.A19	15.12.2009	Copy of receipt for payment by the complainant
Ex.A20	06.02.2010	Copy of opposite parties’ letter to the complainant
Ex.A21	06.02.2010	Copy of opposite parties’ letter to the complainant
Ex.A22	22.02.2010	Copy of opposite parties’ letter to the complainant
Ex.A23	06.03.2010	Copy of complainant’s letter to the opposite parties
Ex.A24	10.03.2010	Copy of opposite parties’ letter to the complainant
Ex.A25	10.03.2010	Copy of Cost Working Chart
Ex.A26	30.11.2010	Copy of receipt for payment by the complainant
Ex.A27	14.07.2011	Copy of opposite parties’ letter to the complainant
Ex.A28	07.09.2011	Copy of opposite parties’ letter to the complainant
Ex.A29	03.10.2011	Copy of legal notice of the complainant to the opposite parties
Ex.A30	13.10.2011	Copy of acknowledgement
Ex.A31	29.01.2015	Copy of materials, photos etc downloaded from the opposite parties website
Ex.A32	31.01.2015	Copy of advertisement issued by the opposite parties

 

List of Documents filed by the opposite parties:-   

Nil

 

 

R.VENKATESAPERUMAL                                                                                                                       R.SUBBIAH                        

             MEMBER                                                                                                                                       PRESIDENT