Tamil Nadu

South Chennai

27/2012

R.Sathish Raman - Complainant(s)

Versus

Le Royal Construction Pvt Ltd - Opp.Party(s)

R.Kishna Moorthy

01 Jun 2016

ORDER

                                                                        Date of Filing :   03.02.2012

                                                                        Date of Order :   01.06.2016.

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

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

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

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

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

 

C.C.NO.27/2012

WEDNESDAY THIS  1^ST  DAY OF JUNE 2016

 

Mr. R.Sathish Raman,

S/o. Mr.Ramaswamy,

Le Royals Laurendeau,

Flat No.6/B-3, 1^st Floor,

1^st Cross Street,

Bharathi Nagar,

Thiruvanmiyur,

Chennai 600 041.                                                 ..Complainant

 

                                         ..Vs..

 

LE ROYAL CONSTRUCTION PVT LTD.,

Rep. by its Managing Director,

No.60/34, II Floor,

South Usman Road,

T.Nagar,

Chennai 600 017.                                              ..Opposite party   

 

 

For the Complainant                    :   M/s. J.Justin & another      

For the opposite party                 :   M/s. Veeraraghavan & another   

 

Complaint under section 12 of the Consumer Protection Act 1986.  The  complaint is filed seeking direction against the opposite party  to handover the metro water connection deposit and card and to allow to car park in the basement and to refund a sum of Rs.1,50,000/- and also to pay a sum of Rs.5  lakhs towards the physical strain and mentral stress and Rs.400/- as cost of the complaint to the complainant

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that the opposite party is a promoter from whom the complainant has entered with an agreement for the purchase of  a flat No.6 in the schedule B-3 for a lump sum amount of Rs.60,50,000/- towards the cost of construction and the undivided share of the schedule land.  The construction cost of the said flat is Rs.54,20,800/- excluding the charges for obtaining the electricity, a sum of Rs.1,50,000/- for car parking and payment of sale tax if any which are to be paid separately by the complainant to the opposite party.  The  opposite party has no right to sell silt car parking space as these are neither flat not appurtenant or attachment to the flat”.  The silt car parking space is part of the common amenities and it cannot be treated as a separate space.   The complainant further submit that as per the construction agreement the complainant has paid metro water connection deposit  to the opposite party but till date the opposite party has not deposited to the metro water department.    As such the act of the opposite party  amounts to deficiency in service which caused mental agony and hardship to the complainant.    As such the complainant sought for claim  to handover the metro water connection deposit card and to allow to car park in the basement and to refund a sum of Rs.1,50,000/- and also to pay a sum of Rs.5  lakhs towards the physical strain and mental stress and Rs.400/- as cost of the complaint to the complainant.

2.      Written version of opposite party in briefly is as follows:

  The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.  The above complaint filed by the complainant is not maintainable both in law and in facts for the reason that the entire complaint is based on the construction agreement entered into between the complainant and the opposite party and for breach of any such contractual terms of non fulfillment of any of the terms and conditions of such agreements, the remedy open to the aggrieved party is by way of initiating legal proceedings before the competent Civil court and defiantly not before the Forum.   The opposite party submit that the complainant has not paid  the above said total of Rs.63,73,420/- but paid the amount less of Rs.50,000/- i.e. 62,23,420/- only, as such the complainant has not paid a sum of Rs.1,50,000/- towards the car parking as agreed by him, but paid a sum of Rs.1,00,000/- alone and the balance of Rs.50,000/- has not paid by him, despite of the several demands made by the opposite party, as such he was not provided car parking, hence,  the proposed car parking agreed for the complainant was allotted to  another flat owner.  The opposite party further submit that the averment made by the complainant that the opposite party sending some third person to collect the monthly maintenance and also the opposite party is not giving any receipt till date towards the monthly maintenance charges is false.    On 23.7.2011 itself, the complainant had received the Metro water and sewerage book and receipt.   The opposite party further submit that except the complainant there are no other complaints from other flat owners and this itself will prove the fact that there is no deficiency in service on the part of the opposite party as falsely alleged by the complainant and the complaint is liable to be dismissed.

3.     The complainant has filed his proof affidavit and Ex.A1 to Ex.9 were marked on the side of the complainant.   Proof affidavit of opposite party filed and no document was marked on the side of the opposite party. 

 

4.     The  points that arise for consideration are as follows:

             1.  Whether Rs.1,50,000/-   charged  towards  car parking  by the

              opposite party is illegal?

 

          2. Whether the complainants has paid a sum of Rs.150,000/- 

              towards car parking and the complainant is entitled for refund of

              the same from the opposite party?

 

          3. Whether the  opposite party is liable to provide car parking as

              claimed by the complainant? 

 

4.   Whether the opposite party has committed deficiency of service, whether the complainant is entitled for the  reliefs sought for in the complainant against the opposite party?  

                    

5. POINTS 1 to 3: -

             Perused the complaint filed by the complainants, the  written version filed by the  opposite party, proof affidavits filed by  the complainant  and the documents Ex.A1 to Ex.A9 filed on the side of complainant  and considered the arguments of the both sides.

6.     Considering the both side pleadings on the record, there is no dispute  between the parties that the opposite party is a promoter from whom the complainant has entered with an agreement for the purchase of  a flat No.6 in the schedule B/3 for a lump sum amount of Rs.60,50,000/- towards the cost of construction and the undivided share of the schedule land.  The construction cost of the said flat is Rs.54,20,800/- excluding the charges for obtaining the electricity, a sum of Rs.1,50,000/- for car parking and payment of sale tax if any which are to be paid separately by the complainant to the opposite party.   The Ex.A1 is the sale deed for the purchase of UDS and Ex.A2 is the construction agreement  are all  proves the same. 

7.     Whereas complainant has contended that he has paid a sum of Rs.63,73,420/- to the opposite party towards the above said construction cost of the flat as mentioned above, i.e Rs.65,000/-  towards charges for metro water and sewerage connection,  Rs.1,50,000/- as charges towards car parking and Rs.1,08,420/- towards the payment of sale tax. 

8.     Whereas the opposite party has  raised objection stating that the complainant has not paid  the above said total of Rs.63,73,420/- but paid the amount less of Rs.50,000/- i.e. 62,23,420/- only, as such the complainant has not paid a sum of Rs.1,50,000/- towards the car parking as agreed by him, but paid a sum of Rs.1,00,000/- alone and the balance of Rs.50,000/- has not paid by him despite of the  demand made by the opposite party, as such he was not provided car parking, hence,  the proposed car parking agreed for the complainant was allotted to  another flat owner.  Contrary to the said flat the allegation made by the complainant in respect of claim of car parking are all  not  sustainable   as   not  valid. 

9.     In order to prove the alleged payment said to have been paid by the complainant to the opposite party, the complainant has filed document bank statement Ex.A5 series and the home loan sanctioned and paid to the opposite party is Ex.A6.    According  to the said entries found in Ex.A5 and Ex.A6 the complainant has paid to the opposite party only Rs.62,23,420/-.  Therefore as contended by the opposite party he has received the same amount of Rs.62,23,420/- only from the complainant as per the construction agreement is acceptable.  Contrary to this the complainant during the time of argument has filed calculation memo prepared by his own, in which stating  a sum of Rs.50,000/- was paid  by  cash  towards  EB, water and other expenses, without mentioning the date on which the said cash payment was made.  Further the complainant   has also not averred in his complaint that he has paid a sum of Rs.50,000/- by cash to the opposite party and the particulars of the date and the purpose for which it has been paid towards.   (As mentioned in the calculation memo)  Therefore as contended by the opposite party the complainant has not proved the disputed balance amount of Rs.50,000/- mentioned above, as there is no pleading and proof of evidence on the side of complainant. 

10.    Further the opposite party has not denied that he has received a sum of Rs.1,00,000/- towards the car parking paid by the complainant  instead of Rs.1,50,000/- as agreed by him in the construction agreement in Ex.A2.  The complainant has disputing for the payment of  car parking mentioned in the agreement by contending that which is illegal as per the decisions of the Supreme Court as the promoter / opposite party is not entitled to charge separately for allotting the car parking for the flat owner.  Whereas the contention of the opposite party that complainant having been agreed in the construction agreement to pay a sum of Rs.1,50,000/- as car parking charges, has not paid the said amount fully, despite of demand made by the opposite party, the opposite party was in the position to allot the said car parking to another flat owner on the payment of car parking charges is acceptable.  The opposite party has also contended that he is ready to refund the said Rs.1,00,000/- received from the complainant  as part payment towards the car parking.  Therefore we are of the considered view that the complainant if really interested in getting car parking, as agreed in the construction agreement Ex.A2, the complainant ought to have paid a sum of Rs.1,50,000/- to the opposite party and to demand the claim of providing car parking.  Contrary to this without willing to pay the agreed charge for the car parking, complainant raising dispute with regard to charging for car parking by the opposite party and claiming the refund of Rs.1,50,000/- and also claiming / providing car parking against the opposite party is not sustainable.  Therefore we are of the considered view that as far as in this issues are concerned, the complainant is only entitled for a refund of Rs.1,00,000/- from the opposite party with interest at the rate of 12% p.a. from the  date of delivery of possession of the flat i.e  23.07.2011 to till the date of payment. 

11.    POINT NO.4: -

        The complainant has further claimed in the complaint that the opposite party has not handed over the metro water connection deposit and metro water card to the complainant and to give copy of the approved plan of the B Block.  By saying those are all the document the opposite party despite of his demand has not delivered to him.  However the opposite party has contended that in the written version, he has completed the construction of the said flat and handed over the same to the complainant on 23.07.2011,  on the same day  the complainant has received the original assessment order  property tax book and receipt, water and sewerage book, EB card and  acknowledged  the same  by  making endorsement.  Though for the said contention of the opposite party mentioned in the written version, the opposite party neither produced supporting document nor filed proof affidavit in this proceeding, however considering the facts and circumstances of the case, the alleged  document relating to metro water connection is of the common document for the entire flats of the apartment and the copy of the approved plan of B block claimed by the complainant is also relating to the entire B Block consider to be a common documents.   Further there is no pleading in the complaint or an evidence or document that he has demanded the same from the opposite party before or during the filing of this complaint, but the said prayers subsequent to the filing of the complaint while pending proceedings was added as prayer by way of amendment only.  Considering these facts and circumstances, further it is also pertinent to mention that the complainant has also availed a home loan  of Rs.30,00,000/- from the Nationalized Bank, without the production of  approved plan copy the loan would not be accorded.   We are in the considered view that these claims made by the complainant are all mere for the purpose of the claim not on a genuine reason.  Therefore, we are of the considered view that the complainant is not entitled for the claims made by the complainant in respect of this issue.  Further we are not inclined to grant compensation for the complainant since the refund amount of Rs.1,00,000/- was ordered with interest. 

12.    As discussed above we are of the considered view that the opposite party is directed to refund a sum of Rs.1,00,000/- with interest at the rate of 12% p.a.  from   23.07.2011 to the till the date of payment, and also to pay a sum of Rs.5000/- towards litigation charges to the complainant.   Accordingly the points 1 to 4 are answered.

        In the result this complaint is partly allowed.  The opposite party is directed to refund  a sum of Rs.1,00,000/- (Rupees one lakh only)  with interest at the rate of 12% p.a. from 23.07.2011 to till the date of payment, and also to pay a sum of Rs.5000/- (Rupees five thousand only) as litigation charges to the complainant within six weeks from the date of this order.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 1^st   day  of  June   2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 6.5.2011    - Copy of Sale deed.

Ex.A2- 30.3.2011  - Copy of Construction agreement.

Ex.A3-         -       - Copy of Property tax demand card.

Ex.A4- 29.11.2011         - Copy of Legal notice to the opposite party.

Ex.A5-         -       - Copy bank pass book details.

Ex.A6- 15.4.2011  - Copy of Home loan sanction letter.

Ex.A7- 23.7.2011  - Copy of Receipt.

Ex.A8-         -       - Copy of E.B. Card.

Ex.A9-         -       - Copy of Detail of Enhancement / Reduction  of property tax.

 

Opposite party’s Exhibits:-      .. Nil ..

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.