Date of Filing : 02.12.2019
Date of Disposal: 14.07.2022
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
CC. No.47/2019
THIS THURSDAY, THE 14th DAY OF JULY 2022
Dr.V.Supriya, D/o.Velraja,
No.1/3, Pothigai Plots,
Bajanai Koil 7th Street, Cholaimade,
Chennai -600 094. ……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 30.06.2022 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 a sum of Rs.10,75,000/-with interest of Rs.1,61,738/- and to pay sum of Rs.4,80,000/-as compensation for mental agony caused to the complainant due to the deficiency in service on the part of the opposite party with cost of Rs.15,000/-.
Summary of facts culminating into complaint:-
It was submitted by the complainant that she entered into an agreement with the opposite party on 19.02.2018 for purchase of a flat F3 (Duplex) with an extent of 1075 square feet for a total consideration of Rs.49,75,000/-. The advance amount of Rs.25,000/- was paid on 15.02.2018 and on 08.03.2018 a sum of Rs.4,00,000/- were paid to the opposite party. It is agreed between the parties that the construction would be completed and the flat would be delivered within six months from the date of agreement. However on 12.04.2018 the opposite party prepared another agreement in which the time was extended to 12 months. Further payments were made and the complainant had paid totalling a sum of Rs.10,75,000/- to the opposite party. Thereafter there was no response from the opposite party either over phone, in person or through email. Thus alleging deficiency in service on the part of the opposite party in not delivering the flat within 12 months from the date of second agreement i.e.12.04.2018 aggrieved the present complaint was filed for the relief as mentioned above.
On the side of complainant proof affidavit was filed and documents were submitted marked as Ex.A1 to A12. In spite of sufficient notice and opportunities the opposite party did not appear and he was called absent and set ex-parte on 04.03.2020 for non appearance and for non filing written version.
Point for consideration:
Whether the complainant is successful in proving the alleged deficiency in service on the part of the opposite party in not delivering the flat as agreed by him in the agreement dated 12.04.2018 and if so to what relief the complainant is entitled?
Point:
The following documents were filed on the side of complainant as evidence in support of his contentions;
The letter of allotment issued by the opposite party allotting a F3 (DUPLEX) house with super built up area of 1475 square feet for a total consideration of Rs.49,75,000/- was marked as Ex.A1;
The construction agreement entered between the parties was marked as Ex.A2;
The construction agreement dated 12.04.2018 entered between the parties in which under the terms and conditions in condition No.4 the opposite party has agreed to complete the construction within 12 months. The agreement for purchase of vacant land i.e. UDS was also filed along with the said agreement which was marked as Ex.A3;
The Bank Statement for the period from 01.08.2017 from ORIENTAL BANK OF COMMERCE till 26.02.2018 along with the Bank Statement of Indian Overseas Bank was marked as Ex.A4. The Bank Statement shows that the amount has been debited in favour of the opposite party;
The proposed residential flats to be purchased by the complainant was marked as Ex.A5;
The receipt vouchers issued by the opposite party was marked as Ex.A6;
The letter dated 16.07.2019 issued by the complainant to the opposite party requesting the opposite party to handover the possession was marked as Ex.A7;
The reminder letter dated 13.09.2019 forwarded by the complainant in favour of the opposite party was marked as Ex.A8;
The track statement in proof of delivery of the notice was marked as Ex.A9;
The picture showing that the building is only at the basement level was marked as Ex.A10;
The receipt issued by the Registration Department for registering the document was marked as Ex.A11;
The e-mail communication between the parties was marked as Ex.A12;
We have perused the oral arguments and written arguments adduced by the complainant. The main grievance of the complainant is that though she had paid a sum of Rs.10.75,000/- towards payment of the flat, the same was never handed over to the complainant even after expiry of the agreed period in the agreement dated 12.04.2018 duly entered between the parties. It is also fairly submitted by the complainant that out of the total amount paid Rs.10,75,000/- as the construction was not progressed, the opposite party had refunded a sum of Rs.3,50,000/-to her.
On perusal of all the documents and evidences we find that the opposite party in Ex.A3 i.e. Construction Agreement dated 12.04.2018 under the terms and conditions had agreed as follows;
“CEE has agreed to arrange the registration of this construction and deliver the flat ready for occupation within twelve months with proper three phase electricity connection, drainage facilities, drinking water facilities etc.,”
But no construction was made till today and no flat was handed over till this date. In such scenario it is amply evident that the opposite party had miserably failed to comply his commitment of completing the construction and handing over the possession of the flat within the agreed period as per the agreement dated 12.04.2018. The photographs submitted by the complainant shows that the construction was not even started and it is only at the basement level. The opposite party also did not appear before this Commission to rebut the contentions raised by the complainant. The complainant had also submitted sufficient proof for payment of the amount. In such circumstances this Commission has no other option but to hold that the complainant had successfully proved the deficiency in service committed by the opposite party in not delivering the flat as agreed by him.
When we come to the relief to be granted to the complainant, we could see that the complainant had asked for refund of Rs.10,75,000/- with interest of Rs.1,61,738/- apart from compensation of Rs.4,80,000/-. But the complainant herself had agreed that she had got refund of Rs.3,50,000/- from the opposite party and we found that there is no purpose in directing the opposite party to hand over the possession to the complainant, we order for refund of the balance amount of Rs.7,25,000/- by the opposite party to the complainant. No explanation was given by the complainant for the amount prayed towards the interest. Hence, we are of the view that the refund of Rs.7,25,000/- with 9% interest from the date of complaint till realization would be proper in the facts and circumstances of the case. For hardship and mental agony suffered by the complainant we order Rs.50,000/- as proper compensation to be paid by the opposite party to the complainant. Hence point is answered accordingly.
In the result, the complaint is partly allowed directing the Opposite Party
a)to repay a sum of Rs.7,25,000/- (Rupees seven lakhs only) with 9% interest from the date of complaint till realization;
b) to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for mental agony caused to the complainant;
c) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.
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 15th day of July 2022.
Sd- Sd-
MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 16.02.2018 The letter of allotment issued by the opposite party allowing a F3 (DUPLEX) house with super build up area 1475 square feet for a totalling consideration of Rs.49,75,000/- Xerox
Ex.A2 19.02.2018 The construction agreement entered between parties Xerox
Ex.A3 12.04.2018 The construction agreement dated 12.04.2019 entered between parties Xerox
Ex.A4 15.02.2018 The bank Statement for the period from 01.08.2017 from ORIENTAL BANK OF COMMERCE till 26.02.2018 along with the Bank Statement of Indian Overseas Bank Xerox
Ex.A5 .............. The proposed residential flats to be purchased by the complainant. Xerox
Ex.A6 15.02.2018 to 06.06.2018 The receipt vouchers issued by the opposite party Xerox
Ex.A7 16.07.2019 The letter dated 16.07.2019 issued by the complainant to the opposite party Xerox
Ex.A8 13.09.2019 The reminder letter dated 13.09.2019 forwarded by the complainant in favour of the opposite party Xerox
Ex.A9 16.11.2019 The track notice in proof of delivery of the notice Xerox
Ex.A10 .............. The picture showing that the building is only at the basement level Xerox
Ex.A11 .............. The receipt issued by the Registration Department for registering the document Xerox
Ex.A12 ............... The e-mail communication between the parties Xerox
List of documents filed by the opposite party;
Nil
Sd- Sd-
MEMBER I PRESIDENT
