Date of Filing      : 28.01.2020

                                                                                                                 Date of Disposal: 18.08.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                                  .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                            ..… MEMBER-I

                 THIRU.P.MURUGAN,  B.COM.,                                                                                 ......MEMBER-II

                

CC. No.14/2020

THIS THURSDAY, THE 18th DAY OF AUGUST 2022

 

Mrs.Sheela Pradeepkumar,

W/o.Pradeepkumar,

Plot No.20, 2/243, Balaji Avenue,

Oil Mill Road, Ayyappanthangal,

Chennai -600 056.                                                                                         ……Complainant.  

                                                                                 //Vs//

M.A.Saleem, 

Prop.Civil Engineering Enterprises,

Plot No.22A, K.K.Road,

Kauvery Rangan Nagar,

Saligramam, Chennai 600 093.                                                               …..opposite party.

 

Counsel for the complainant                                                                     :   Party in person

Counsel for the opposite parties                                                              :   exparte 

                         

This complaint is coming before us on various dates and finally on 25.07.2022 in the presence of complainant who appeared party in person and the opposite party was set exparte for non appearance and upon perusing the documents and evidences of the complainant this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer 

Protection Act, 1986 alleging deficiency in service against the opposite party with a prayer to refund Rs.6,25,000/- paid by the complainant as advance along with interest and compensation and also the cost of the proceedings in total 11,80,000/- Summary of facts culminating into complaint:-

The present case was filed alleging deficiency in service against the opposite party in not handing over the constructed flat agreed to be purchased by the complainant and also after receipt of Rs.6,25,000/- from the complainant.  On 12.04.2018 the complainant entered into an agreement with the opposite party for purchase of a flat with 602 square feet in the 2nd floor and also paid an advance amount of Rs.6,25,000/- by way of cheque.  It was agreed that from the date of agreement within 11 months the construction should be handed over to the complainant and the total cost of construction was fixed at Rs.14,62,567/- and the value of UDS was fixed at Rs.13,65,833/-.  However the flat was not handed over even after expiry of 11 months period as agreed by the opposite party.  Hence after issuance of notice dated 18.09.2019, the present complaint was filed for the reliefs to refund Rs.6,25,000/- paid by the complainant as advance along with interest and compensation and cost of  the proceedings and in total Rs. 11,80,000/- .

On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A10. In spite of sufficient opportunities the opposite party did not appear before this Commission and hence he was set ex-parte for non appearance on 11.12.2020 for non appearance and for non filing of written version.

Points for consideration:

  1. Where there is any deficiency in service on the part of the opposite party as alleged by the complainant?

2. If so to what relief the complainant is entitled? 

 Point:1

The following documents were filed on the side of complainant in support of his contentions;

The letter of allotment issued by the opposite party allotting flat No.S2, 2nd floor with super built up area 602 square feet for a total consideration of Rs.28,28,400/- was marked as Ex.A1;

The construction agreement entered between parties dated 12.04.2018 was marked as Ex.A2;

Statement of Accounts from 09.12.2017 to 15.12.2017 for the complainant’s account  and Receipt Vouchers were marked as Ex.A3;

 plan picture was marked as Ex.A4;

Legal notice issued by the complainant to the opposite party dated 18.09.2019 was marked as Ex.A5;

Acknowledgement card for proof of service was marked as Ex.A6;

Reminder letter sent by the complainant to the opposite party dated 23.12.2019 was marked as Ex.A7;

Acknowledgement card for proof of service was marked as Ex.A8;

Photos were marked as Ex.A9;

Rental Agreement dated 01.05.2019 was marked as Ex.A10;

 Heard the oral arguments adduced by the complainant/Party in Person and perused the written arguments filed by them.  It is the case of the complainant that inspite of allotment letter and receipt of an advance amount of Rs.6,25,000/- the opposite party failed to complete the construction of the flat and also did not hand over the possession even after expiry of 11 months as agreed in the construction agreement dated 12.04.2018.  It was argued by the complainant that when she visited the construction site she could found that the construction was only at the basement level even at the time of filing of the complaint for which photographs (Ex.A9) were filed.  When the complainant questioned the opposite party by way of notice they did not reply and hence the complainant/Party in person sought for refund of the amount paid as advance along with interest and compensation for the mental agony caused to the complainant.  

We perused the documents submitted by the complainant and appreciated the arguments made by her.  The opposite party/Builder remained absent inspite of sufficient opportunities and was made ex-parte for non appearance and therefore no pleadings or evidences were available to rebut the allegations put forth by the complainant.  The recent orders rendered by the Apex Court in wg.cdr. Arifur Rahman khan and Vs DIF Southern Homes private Limited Dated 24.08.2020 and also in Pioneer Urban Land and Infrastructure limited Vs Govindan Raghaven in Civil Appeal No.12238/2018 dated 02.04.2019 applies to the facts of the case and in Pioneer Urban Land and Infrastructure limited Vs Govindan Raghaven in Civil Appeal No.12238/2018  it has been held that the flat purchaser is entitled for refund of amount with interest when the builder commits delay in handing over the possession in their lordships words as follows;

“The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the  Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.”

The Apex court has also held that the delay in handing over the flat amounted to clear deficiency in service by the builder.  In such circumstances we hold that the opposite party had committed deficiency in service and that the complainant is entitled to refund of the advance amount along with compensation.  Thus we answer this point accordingly.

Point No.2:

The complainant fairly submitted a memo to the effect that the opposite party out of Rs.6,25,000/- has repaid a sum of Rs.2,25,000/- on 11.10.2021 by way of cheque No.620970, dated 06.10.2021 ,Punjob National Bank, Saligramam Branch.  Hence we are of the view that she is entitled for refund of the balance amount of Rs.4,00,000/-.  Further for the mental agony caused to the complainant we award Rs.25,000/- as compensation and we also award Rs.10,000/- towards cost of the litigation expenses to the complainant.  Thus we answer this point accordingly.

In the result, the complaint is partly allowed directing the Opposite Party 

a)to repay a sum of Rs.4,00,000/- (Rupees four lakhs only) within six weeks from the date of receipt of copy of this order; 

b) to pay a sum of Rs.25,000/- (Rupees twenty thousand only) towards compensation for mental agony caused to the complainant;

c) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.

d) Amount in clause (a) to be paid within six weeks from the date of receipt of copy of this order failing which an interest of 9% will be levied on the said amount from the date of complaint till realization. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 18th day of August 2022.

 

       Sd/-                                                           Sd/-                                                Sd/-

MEMBER-II                                              MEMBER I                                    PRESIDENT

 

 

List of document filed by the complainant:-

 

Ex.A1 13.12.2017 Allotment letter in the name of complainant. Xerox

Ex.A2 12.04.2018 Constuction Agreement. Xerox

Ex.A3 ........... Statement of account. Xerox

Ex.A4 ........... Plan picture. Xerox

Ex.A5 18.09.2019 Legal notice issued by the complainant to the opposite party. Xerox

Ex.A6 27.09.2019 Acknowedgement card. Xerox

Ex.A7 23.12.2019 Reminder letter sent by the complainant to the opposite party. Xerox

Ex.A8 24.12.2019 Acknowledgement card. Xerox

Ex.A9 ............... Photos Xerox

Ex.A10 2018-2019 Rental agreement. Xerox

 

 

List of documents filed by the opposite party;

 

 

Nil

 

 

       Sd/-                                                           Sd/-                                                Sd/-

MEMBER-II                                              MEMBER I                                    PRESIDENT