Tamil Nadu

South Chennai

CC/239/2012

R.Govindarajan, - Complainant(s)

Versus

Jain Housing, - Opp.Party(s)

07 Jun 2017

ORDER

                                                                        Date of Filing :   24.09.2012

                                                                        Date of Order :   07.06.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 239/2012

WEDNESDAY THIS  7^TH   DAY OF JUNE 2017

R. Govindarajan,

S/o. K.R. Ranganathan,

No.7,Nagarjuna Nagar,

1^st Street, Rangarajapuram,

Kodambakkam,

Chennai 600 024.                                       .. Complainant

 

                                        ..Vs..

Jain Housing,

A Partnership Firm,

Through its Partner Sandeep Mehta,

No.11,Somasundaram Street,

T.Nagar, Chennai – 600 017.                      .. Opposite party.

 

 

Counsel for Complainant         :    M/s. K.Sivasubramanian & another   

Counsel for opposite party      :    M/s. K. Kumaran   

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to reimburse a sum of Rs.2,03,929/- towards delayed interest and service tax and to pay Rs.3,00,000/- as compensation for mental agony and to restore the car park at Block No.10 in slot bearing No.13  and to pay cost of the complaint.

1. The averment of the complaint in brief are as follows:

         The complainant submit that he has purchased flat bearing No.FE of 1^st floor in Block No.10 measuring 1180 sq. ft. built up area with open terrace of 44 sq. ft. and covered car parking  and further agreed to allot a covered car park at Block No.9 in slot No.11 at a total cost of  Rs.38,39,800/-.   However there was a huge delay on the part of the opposite party in completing the construction work and handing over possession of the flat.   Further the opposite party charged the complainant with delayed interest Rs.75,000/- service tax Rs.1,28,929/- and the complainant had no option except to yield to the illegal demand as the opposite party declined to give possession of the flat.    The complainant further contended that the opposite party has not provided the receipt of receiving service tax of Rs.1,28,929/-. 

2.     Further the complainant state that he was allotted a car park at block No.9 in slot bearing No.11 vide Memorandum of agreement dated 3.10.2007 and the opposite party received a sum of Rs.1 lakh towards the same.   However the opposite party failed to allot the aforesaid car park.   Later the opposite party convinced the complainant and allotted a covered car park at Block No.10 in slot bearing No.13 and a letter dated 28.12.2011 to that effect was also issued by the opposite party.    When the complainant enquired the opposite party regarding the same his reply was evasive and irresponsible.  Now the opposite party is insisting the complainant to occupy the car park  at Block No.13 in slot bearing No.30.    Accordingly the complainant issued a legal notice dated 23.7.2012 to the opposite party calling upon him to restore the car park and there was no reply from the opposite party.   As such the act of the opposite party clearly amounts gross deficiency in service which caused mental agony  and hardship to the complainant.  Hence the complaint is filed.

3. The brief averments in the Written Version of  the opposite party    are as follows:

        The opposite party denies all the allegations contained in the complaint except those which are specifically admitted herein and this opposite party puts the complainant to strict proof of each and every allegation.    The opposite party submit that the complaint is liable to be rejected for want of pecuniary jurisdiction. It is clear from the complaint and the documents filed by the complainant, the value of goods / services availed by the complainant from the opposite party is more than 40 lakhs and as per Section 11 of the C.P. Act the value of the goods / services has to be taken into account for the purpose of pecuniary jurisdiction of the forum.    As such the proper remedy if any for the complainant is only to approach the State Commission since the pecuniary jurisdiction of this forum is only upto Rs.20,00,000/- and this forum has got no pecuniary jurisdiction to try the above complaint. 

4.     The opposite party further submit that  there was no huge delay in completing the construction work and handing over the flat by the opposite party as alleged by the complainant.    As per  the Memorandum of agreement dated 3.10.2007, the opposite party agreed to complete the entire construction of flat within a period of 30 months from the date of starting the construction with a grace time of three months.  It was further agreed to compensate the complainant at Rs.6/- per sq. ft. per month increase of any delay in construction beyond the above.    Further the opposite party state that the complainant is a defaulter by not making stage wise payments  due to the opposite party and was liable to be charged with Rs.2,66,337/- as delay charges and the same was accepted by the complainant.  It is agreed by the complainant in Clause 37 of the Memorandum of Agreement that the complainant will pay the service tax / vat / any other statutory charges to the opposite party.

5.     The complainant was initially allotted a car parking as per agreement in Block 9, slot No.11, but later the complainant orally requested the opposite party to allot a car park in the Block No.10  slot No.13 where the complainant’s flat is situated.   Hence only on the request of the complainant the opposite party made arrangements to allot a car park in Block No.10.   Whereas a typographical error was incurred in the letter dated 28.12.2011, wherein instead of slot No.30 it was wrongly mentioned as slot No.13 which was already allotted to another customer.      Hence there is no deficiency in service on the opposite party and therefore this complaint is liable to be dismissed.  

6.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A7 marked.  Proof affidavit of opposite party  filed and Ex.B1 to Ex.B10  marked on the side of the opposite party.  

7.   The point for the consideration is:  

 

1. Whether this forum have pecuniary jurisdiction to try the case as  alleged by the opposite party ?

 

2. Whether the complainant is entitled to get a sum of Rs.2,03,929/- collected by the opposite party towards delayed interest and service tax with  compensation of Rs.3,00,000/- for mental agony as prayed for ?

 

3.  Whether the complainant is entitled to restore the covered car parking  in slot No.13 in Block No.10 as prayed for ?

8.      POINT No. -1

         Heard both sides.  Perused the records.  Admittedly the complainant  had purchased undivided share of 737.66 sq. ft  and flat bearing No.FE of 1^st floor in Block No.10 measuring 1180 sq. ft. built up area with open terrace of 44 sq. ft. and covered car parking.    The learned counsel for the complainant would contend that this case is filed for claiming amenities of car parking area namely slot No.13 in Block No.10 and the amount wrongly collected by the opposite party with compensation for mental agony.  The learned counsel for complainant  further contended that as per Sec.11 (1) of Consumer Protection Act 1986 is as follow:

11. Jurisdiction of the District Forum – (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods of services and the compensation, if any claimed does not exceed rupees twenty lakhs. “

Hence this forum have jurisdiction, since the claim of car parking is admittedly purchased for a sum of Rs.1,00,000/- and the amount collected wrongly is coming under the pecuniary limit of this forum.  The learned counsel further contended that the jurisdiction of District Forum can be accessed on the basis “the value of the goods or services and the compensation”.   In this case, the services amounts to amenity extended by the opposite party is car parking purchased for the value of Rs.1,00,000/-.  The compensation and other amount claimed is also coming under the purview of this forum pecuniary jurisdiction.  The contention regarding pecuniary  jurisdiction by calculating the value of the property never arise, because the Act itself is very clear that “the value of goods or services and the compensation.  Since the value of car parking (i.e.) amount sold by the opposite party is Rs.1,00,000/-.   This forum have sufficient jurisdiction.  Further the value at property need not be taken into consideration.  

9.     The learned counsel for the opposite party would contend that admittedly the complainant entered into an agreement for purchasing a flat No.FE.   There is a delay in handing over the flat also.   At the time of entering into the agreement the complainant has allotted slot No.11 in Block No.9.   The complainant also paid the cost of Rs.1,00,000/- towards such car parking.    At the request of the complainant since the flat was allotted in Block No.10 the car parking slot was changed into slot bearing No.30 in block No.10.  But unfortunately in Ex.A5  it is wrongly typed as slot bearing No.13.  On careful perusal of the document filed in this case, it is very clear that the opposite party has not informed the complainant that the slot bearing No.13 in block No.10 was allotted mistakenly.    Equally the opposite party after issuing Ex.A5 letter of allotment, slot bearing No.13 in block No.10 car parking area was allotted to somebody.    Hence the complainant was constrained to file this case for such deficiency of service.  

10.    The learned counsel for the opposite party further contended that this forum have no jurisdiction to entertain this case as per Section 11 (1) of Consumer Protection Act.   This forum have jurisdiction to entertain the case of value Rs.20,00,000/-.  In this case as per Ex.A1 agreement the value of property of Rs.35,00,000/- and other amounts claimed is more than Rs.5,00,000/- the compensation claimed is also Rs.3,00,000/- with some amounts of Rs.2,00,000/- towards alleged wrong payment.   Hence this forum having no pecuniary jurisdiction.    The learned counsel for opposite party cited a decision reported in

NATONAL CONSUMER DISPTUES REDRESSAL COMMISSION, NEW DLEHI

       Consumer Case No.97 / 2016

AMBRISH KUMAR SHUKLA & 21 ORS.

1.  

FERROUS INFRASTRUCTURE PVT. LTD.

 

 

 

But on careful perusal of entire facts of the case in hand it is crystal clear that the claim in this case is only with regard to car parking area valuing of Rs.1,00,000/-. The provision is very clear that “ the value of goods or services and compensation.In this casethe value of services (i.e.) amenity of car parking i.e. Rs.1 lakh and otherclaims by way of compensation etc. coming under the pecuniary jurisdiction of the forum. Considering the facts and circumstances of the case, this forum is of the considered view that this forum having pecuniary jurisdiction to entertain the case and this point is answered accordingly.

 

11. :

The learned counsel for the complainant contended that as per Ex.A1 Memorandum of agreement the complainant had purchased an undivided share of 737.66 sq. ft. with Flat No.FE in Block No.10and covered car parking.The complainant paid the amount regularly there is an inordinate delay in handing over the apartment by the opposite party.But the opposite party charged a sum of Rs.75,000/- towards delayed interest and sum ofRs.1,28,929/- towards service tax illegally and obtained letter dated 17.6.2010 Ex.B7 suppressing all the real facts and threateningthe complainant from possession of the property.In real facts the opposite party compelled the complainant to pay the above said amount on 7.6.2010 itself.Further the learned counsel for the complainant contended that as per the agreement Ex.A1 the complainant was allotted slot bearing No.11 of Block No.9 as covered car parking.On request it was changed and the complainant was allotted the slot bearing No.13 in block No.10 as covered car parking. Since the complainant purchased flat No.FE in Block No.10.Later the opposite party without any information to the complainant slot bearing No.13 in block No.10 was allotted to somebody and allotted slot No.30 in Block No.10 to the complainant as the car parking area.Since the slot bearing No.30 in block No.10 is small area of car parking and is not convenient and immediately came to the knowledge of change the complainant requested the opposite party not to change the alleged car parking area of slot bearing No.13 in block No.10. The opposite party is a powerful person having both financial and muscle power.Hence the complainant is constrained to file this case claiming to refund the amount collected illegally from the complainantand to restore the car parking area slot No.13 in block No.10.

12.  

In the result, the complaint is allowed in part.  The opposite party is directed to restore the possession of car parking area in Slot bearing No.13 in Block No.10 within one month from the date of this order i.e. 7.6.2017 and also pay a sum of Rs.75,000/- (Rupees Seventy Five thousand only) collected towards delayed interest with compensation of  Rs.15,000/- (Rupees Fifteen thousand only) for mental agony and Rs.5,000/- (Rupees Five thousand only) towards cost of the complaint to the complainant.

         The above  amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.   

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  7^th   day  of  June 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

 

Complainants” side documents:

Ex.A1-  3.10.2007 - Copy of Memorandum of agreement.

Ex.A2- 3.10.2007  - Copy of Payment receipts.

Ex.A3- 13.12.2007         - Copy of sale deed.

Ex.A4- 30.10.2010         - Copy of sale deed.

Ex.A5- 28.12.2011         - Copy of sale deed.

Ex.A6- 23.7.2012  - Copy of legal notice.

Ex.A7          - 12.8.2012 - Copy of photos.

Opposite party’s side document: -   

Ex.B1- 21.12.2006         - Copy of Building permit.

Ex.B2- 27.3.2013  - Copy of B-interest statement.

Ex.B3- 15.9.2012  - Copy of reply letter sent by the opposite party along

                               With ack. card.

Ex.B4- 21.5.2012  - Copy of letter sent by the opposite party.

Ex.B5- 17.6.2010  - Copy of affidavit of declaration executed

                               by the complainant.

Ex.B6-         -       - Copy of taking over the possession letter issued by the

                              complainant.

Ex.B7- 17.6.2010  - Copy of letter issued by the complainant.

Ex.B8- 11.5.2010  - Copy of letter sent by the opposite party.

Ex.B19- 5.6.2010  - Copy of letter sent by the complainant.

Ex.B10-       -       - Copy of car parking slot bearing NO.30 FE photos.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.