Tamil Nadu

South Chennai

311/2004

A.H.Balaji - Complainant(s)

Versus

Land Marvel Constructions, Proprietor & another - Opp.Party(s)

M/s. Swaraj Associates

02 Nov 2017

ORDER

                                                                        Date of Filing :   25.04.2003

                                                                        Date of Order :   02.11.2017

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.311/2004

THURSDAY THIS  2^ND DAY OF NOVEMBER 2017

 

A.H. Balaji,

S/o. Mr.A.R.Hariharan,

Rep. by POA

Mr.A.R.Hariharan,

Flat No.T4, III Floor,

Land Marvel Saivignesh Flats,

Old No.A-14, New No.20,

19^th Avenue, Ashok Nagar,

Chennai 600 083.                                          .. Complainant

 

                                        ..Vs..

 

1. Land Marvel Constructions,

Rep. by its Proprietor,

Mr.M.Veerashekar,

Old No.23, New No.39,

I Cross Street,

Kasturba Nagar,

Adyar, Chennai 600 020.

 

2. Mr. M.Veerashekar,

Old No.23, New No.39,

I Cross Street,

Kasturba Nagar,

Adyar, Chennai 600 020.                            .. Opposite parties.

 

Counsel for Complainant                :   M/s. Swaraj & Associates       

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

 

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking directionto rectify the defects i.e. checking seepage in the ceiling of both the attached and common bath rooms and both the bed rooms facing the road have developed running cracks on the wallsand cracks in the roof ceiling of the dining hall,poor quality of the main doorwhich is bent and could not be safely closedand also to pay a sum of Rs.75,000/- towards individual car parking slot and also to reimbursea sum of Rs.88,711/- incurred by the complainant towards additional interest paid to the HDFC due to the delayed in handed over possessionand also to refund a sum of Rs.17,370/- incurred by the complainant paid to the CMDA and also pay a sum of Rs.48,000/- towards the reimbursement of the amount and also to pay sum of Rs.1,00,000/- as compensation for mental agony and to pay cost of the complaint.

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

         The complainant submit that he entered into a construction agreement with the opposite parties on 1.8.1999  upon the terms and conditions and the opposite parties agreed to complete the construction of the flat at first floor later changed to II floor measuring about 1010 sq. ft. within the period of 11 months from the date of signing the construction agreement.  The complainant further state that  the completion of the construction work by the opposite parties as per the construction agreement  fell due and to be handed over by 31.8.2000 on completion of all the agreed terms.  Further the complainant state that  the opposite parties had not shown any development of stage in the construction and the opposite parties had failed to hand over vacant possession of the purchased flat to the complainant within the agreed period of 11 months as per the construction agreement.   When the delay has been questioned by the complainant the opposite parties assured to compensate the complainant by making payment of Rs.4,000/- p.m. 

2.     Further the complainant state that  the opposite parties had even failed to furnish the letter of confirmation of handing over possession of the flat to the complainant in spite of repeated reminders.   The opposite parties had failed to attend to the following defects as follows:

1. seepage in the ceiling of both the attached and common bath rooms as well as in both the bed rooms facing road side.
2. Both the bed rooms and balcony facing the road side have developed running cracks on the walls
3. Cracks in the roof ceiling of the dining Hall, master bedroom facing the road and wall joints of the other bed rooms.
4. Restricted movement of the sling windows in the master bed room facing the road often gets struck.
5. Poor quality of the main door which is bent and could not be safely closed  
6.  Individual car parking slot provided towards which Rs.75,000/- was separately paid by the complainant.

Further the complainant state that adding one another deficiency that the opposite party had constructed the flat comprising 1220 sq. ft. in the third floor,  Whereas adding one another difficulty the opposite party had constructed the flat comprising 1317 sq. ft. unwarrantedly on his own accord and thereby placed a demand to pay the differential amount of Rs.1,45,000/- for construction of that 97 sq. ft. @ 1500 per sq. ft.  The complainant also state that he had availed the loan facility from HDFC in order to purchase the flat from the opposite parties and due to the delay in giving possession of the flat; the complainant  had to pay  the additional interest upon the disbursed loan amount working out to Rs.88,711/-.     The complainant also state that the lift installation was also not performed by the opposite parties even after handing over the possession of the flat to the complainant.    The opposite parties had turned his deaf ears to the repeated requests of the complainant.  The lift was finally installed.  Even after repeated demand and requests to complete the unattended works immediately,  the opposite parties had failed to initiate any steps towards completion of the construction.     The complainant had paid the penalty of Rs.17,370/- to CMDA for regularization of the violation in construction solely committed by the opposite parties in construction of the apartment.    On 24.7.2001 the opposite parties handed over the physical possession of the purchased flat in an uncompleted stage.   As such the act of  the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

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

      The  opposite parties denies each and every allegations except those that are specifically admitted herein.    The opposite parties submit that even as per the construction agreement filed by the complainant it is clear that the opposite parties agreed to construct a flat only in the second floor and not in the first floor as alleged by the complainant.   The opposite party also state that  it is not correct to say that there was abnormal delay in the construction of the flat.  The complainant was suggesting every now and then alternations and additions beyond the scope of specifications.   Again the complainant did not pay stage payment inspite of repeated oral and written requests.   The opposite parties also state that  the complainant has not paid the amount due to the opposite parties in time.  

4.     Further the opposite parties submit that  it is not correct to state that the flat was handed over to the complainant in an incomplete stage; but the opposite parties have completed all the works in the said flat.    The opposite parties deny the averments of the complaint as not correct and in this regard it is submitted that the opposite parties have already handed over the letter of confirmation of handing over possession of the flat to the complainant and the legal ownership towards individual car parking slot to the complainant.    The opposite parties further state that  the delay in providing lift facility was not due to the fault of these opposite parties but only due to the fault of the complainant and other flat owners who had not paid the amount to the opposite parties towards provision for lift.   The complainant  on his own applied for regularization of the flat without approaching the opposite parties as admitted by him.    Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

5.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A23 marked.  Proof affidavit of opposite parties filed and no documents   marked on the side of the opposite parties.

 

6. The points for the consideration is:  

 

1. Whether the complainant is entitled to the relief of rectification of defects mentioned in the complaint as prayed for ?.
2. Whether the complainant is entitled to a sum of Rs.88,711/- incurred by the complainant towards additional interest paid to the HDCF due to delayed possession as prayed for?

 

3. Whether the complainant is entitled to a sum of Rs.17,495/- paid to the CMDA for regularization and another sum of Rs.4,000/- towards the reimbursement of rent as prayed for with compensation of Rs.1,00,000/- with cost as prayed for?

 

 

 

 

7.  POINTS 1 to 3: -

 

          Heard both sides.   Perused the records.  The learned counsel for the complainant contended that as per Ex.A1 the complainant entered into a construction agreement with the opposite party for construction in 4600 sq. ft of undivided share with constructed area of 1220 sq. ft. in the third  floor.  Since there is no apartment available in the first floor both the complainant and the opposite parties agreed for having an apartments in the second floor instead of 1^st floor.    In the 2^nd floor the opposite parties constructed 1035 sq. ft. and handed over possession on 11.6.2001 admitted.    The contention of the complainant is that as per  the agreement Ex.A1 the possession shall be delivered on or before 31.8.2000.   Equally the complainant has to pay the entire amount before handing over the possession of the apartment.  But it is seen that the complainant has paid a sum of Rs.1,50,000/- on 15.7.1999 and another sum of Rs.4,21,500/- on 1.8.1999; and Rs.1,60,500/- on 11.9.1999, and Rs.1,00,000/- on 13.10.1999, and Rs.1,80,500/- on 22.10.1999;  Rs.1,00,000/- on 8.1.2000; Rs.2,00,000/- on 16.2.2000; sum of Rs.2,00,000/- on 15.4.2000; a sum Rs.1,25,000/- on 16.8.2000;  a sum of Rs.50,000/- on 9.9.2000;  a sum of Rs.1,28,000/- on 13.9.2000;  a sum of Rs.25,000/- on 8.11.2000; a sum of Rs.75,000/-  on 21.11.2000;  a sum of Rs.30,000/- on 27.12.2000;  a sum of Rs.10,000/- on 6.1.2000; a sum of Rs.50,000/- on 29.3.2001;  a sum of Rs.20,000/- on 18.4.2001  a sum of Rs.15,000/- on 10.5.2001;  a sum of Rs.20,000/- on 26.6.2001; for a Rs.20,000/- on 12.7.2001 proves that the complainant has not paid the entire amount in proper time as per Ex.A20.   Further the contention of the complainant is that since the possession was handed over belatedly the complainant is entitled to recover a sum of Rs.48,000/- towards rent; is not acceptable;  since the complainant has not paid the amount for constructing the apartment periodically as per the terms and conditions of the agreement. 

8.     Further the contention of the complainant is that since the possession was handed over belatedly the complainant is entitled to reimburse  a sum of Rs.88,711/- incurred by the complainant towards additional interest paid to the HDFC  is also not acceptable; as the complainant has not filed any document to prove the said amount.

9.     The learned counsel for the opposite parties contended that there is no  delay in handing over the possession of the property; the delay is caused is only due to the non-payment by the complainant as per the agreement.    Further the opposite parties contended that as per the agreement within the stipulated time stage by stage constructions were completed.   Every time the complainant requested for some alternations; addition etc.  on payment of cost thereby the additional 97 sq. ft. was constructed @ 1500 per sq. ft.  the said amount also paid by the complainant belatedly.  Hence the complainant have no right to claim any amount towards rent for delay in handing over the possession. 

10.    The learned counsel for the complainant further contended that there are deviation in the construction all of a sudden surprising issued letters by  CMDA  for payment of fees towards regularization and penal charges; the complainant has paid a sum of Rs.17370/- on 27.6.2002 towards regularization in favour of CMDA as per Ex.A13.  As per the agreement Ex.A1 it is the duty of the opposite parties to construct an apartment without any deviation as per the specification of the CMDA plan and permission, since there is some violation the complainant was constrained to pay the amount.

11.    The contention of the opposite parties is that every time the complainant and other owners of the apartment requested for some deviation; hence the above said violation of CMDA plan arises.  The said contention cannot be accepted even if it is so it is the duty of the opposite parties to pay the amount claimed by the CMDA and to see that the building is constructed on the basis of duly approved plan and permission and the construction of the building should be regularized.   In this case; it is apparently seen that a sum of Rs.17,370/- has been paid by the complainant towards regularization.  The opposite parties shall refund the amount with interest to the complainant.

12.    The learned counsel for the complainant further contended that the construction of the building by the opposite parties with low quality of materials caused cracks on the walls, seepage in the balcony which caused great mental agony; but the complainant has not filed any document to prove the said defect.   Equally the complainant has not taken any steps to appoint Advocate Commissioner to find out such deficiency.   Further the learned counsel for the complainant contended that very low quality of electrical installation resulting cracks in the plastic cover exposing electric wires near the kitchen ceiling and the kitchen entrance and kitchen platform was not laid and suitable hole for gas cylinder;  not produced  are all not proved.  

13.    Further the contention of the complainant is that the opposite parties has not issued any letter to provide the legal ownership towards individual car parking slot even after the receipt of a sum of Rs.75,000/- and the bore-well for supply of watering is insufficient and the overhead tank were not properly covered.  Equally there is no cover of caste iron cover for septic tank.  But on a careful perusal of entire records the complainant has not taken  proper steps to prove such deficiency  and has not filed any document to prove payment of Rs.75,000/-.  On the other hand the opposite parties admitted in their written version itself that if at all any deficiency regarding cracks etc must it would  be rectified.  

13.    Further the learned counsel for the complainant contended that on 1.8.1999 the complainant entered into an agreement with the opposite parties.  Since the opposite parties committed deficiency in construction and unfair trade practice regarding the approval of plan and permission,   the complainant sustained great mental agony.   The complainant is claiming a sum of Rs.1,00,000/- towards compensation.  But the nature of mental agony has not been proved in such logical manner.  

14.    The learned counsel for the opposite parties contended that there is no deficiency committed by the opposite parties in construction.  The delay in handing over the possession is only due to the non-payment of construction costs.   There shall be no mental agony caused to the complainant, since they are occupying the apartment without any difficulty.  Considering the facts and circumstances of the case this forum is of the considered view that the opposite parties are jointly and severally liable to rectify the following defects if any found in the apartment i.e. 1) any seepage in the ceiling  of both the attached and common bath rooms; 2) Any cracks on the walls in both the bed rooms facing road side and cracks in the roof ceiling of the dining hall, master bed room facing the road and wall joints of the other bed rooms  in the rear bedroom  walls, and near the wash basin in dining hall and shall pay a sum of Rs.17,370/- paid to CMDA  with compensation of Rs.15,000/- towards mental agony and cost of Rs.5,000/- and points are answered accordingly.

 In the result the complaint is allowed in part.  The opposite parties are jointly and severally liable to rectify the following defects within one month if any found in the apartment i.e. 1) any seepage in the ceiling  of both the attached and common bath rooms; 2) Any cracks on the walls in both the bed rooms facing road side and cracks in the roof ceiling of the dining hall, master bed room facing the road and wall joints of the other bed rooms  in the rear bedroom  walls, and near the wash basin in dining hall and shall pay a sum of Rs.17,370/- (Rupees Seventeen thousand three hundred and seventy only)  with compensation of Rs.15,000/- (Rupees Fifteen thousand only) towards mental agony and Rs.5,000/- (Rupees Five thousand only) towards cost of the complaint to the complainant.

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this 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 the2^ndday  of November  2017. 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainant’s side documents:

Ex.A1-  1.8.1999   - Copy of construction agreement.

Ex.A2-  15.7.1999 - Copy of payment receipt.

Ex.A3-  4.5.2001   - Copy of letter from opposite party to HDFC.

Ex.A4- 6.8.2000    - Copy of letter from opp. party to complainant.

Ex.A5- 13.3.2002  - Copy of receipts.

Ex.A6-         -       - Copy of letters from Association to opposite  parties.

Ex.A7- 11.3.2002  - Copy of letter to opp. party by Association to payment

                               to the life company.

 

Ex.A8-         -       - Copy of letter from the CMDA.

Ex.A9-         -       - Copy of letter from the CMDA.

Ex.A10- 25.10.2002  - Copy of reply letter by the Sai vignesh owner Association.

Ex.A11- 27.6.2002    - Copy of  payment receipt issued by CMDA.

Ex.A12- 15.11.2002 - Copy of reply letter by the Sai Vignesh Owners association

Ex.A13-       -         -  Copy of intimation letter.

Ex.A14- 30.3.2002           -  Copy of legal notice.

Ex.A15- 23.11.2002 -  Copy of legal notice with Ack. Cards.

Ex.A16-       -         -  Copy of payment receipts. 

 

Opposite parties’ side document: -   .. Nil..    

 

MEMBER-I                        MEMBER-II                             PRESIDENT.