Tamil Nadu

South Chennai

CC/71/2005

Vasanth Apartment - Complainant(s)

Versus

M.S. Rajamanickam - Opp.Party(s)

C.Regurajan

05 Dec 2017

ORDER

                                                                        Date of Filing :  24.09.2004

                                                                        Date of Order :   05.12.2017

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.71/2005

TUESDAY THIS 5^th DAY OF DECEMBER 2017

Vasanth Apartments C-Block,

Owners Association

(Regn.No.160/2003),

No.10, Maduraisamy Madam Street,

Perambur, Chennai 600 011.

Rep. by its President,

S.Arunachalam.                                                       Complainant

 

                                         Vs 

 

Mr. M.S.Rajamanickam,

Proprietor,

Vasanth Builders,

No.40, C.P. Ramasamy Salai,

Alwarpet,

Chennai 600 018.                                            Opposite party

 

Counsel for Complainant              :   M/s. S. Selvaraj         

Counsel for opposite party           :   M/s. K.R.Neelambar     

 

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 rectify the deficiency by constructing and completing the unconstructed portion of compound wall on the southern side of the complainant’s apartment of “C” blockand to pay a sum of Rs.1,00,000/- as compensation for hardship and financial loss and to pay cost of the complaint.

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

         The complainants submit that the member of the complainant’s association purchased the flats from the opposite party individually at different points of time especially while the scheme of Vasanth Apartments “C” block was an ongoing project and the constructions were partly completed.    Further the complainant contended that even after the entire payment of the cost of flats was received by the builder he failed to complete the construction as per the plan approved by the CMDA.    The complainant representatives were given on different dates 26.11.2002, 28.11.2003, 1.12.2002, 31.12.2002, 17.3.2003, 16.5.2003, and 28.7.2003. But the opposite party builder did not respondent positively though he did sent of some reply notices dated 30.11.2002, 8.12.2002, 25.12.2002, 8.4.1003, 20.7.2003 19.8.2003 wherein he contended that there cannot be a new compound wall get constructed s it is not in the terms and conditions of the contract.    Accordingly the complainant causes a legal notice dated 4.3.2004 demanding the construction of wall but the builder sent a reply letter dated 29.3.2004 stating that the agreement does not contemplate construction of any compound wall.     As such the act of  the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.    The brief averments in the Written Version filed by the opposite party are  as follows:

      The opposite party deny each and every allegations except those that are specifically admitted herein.   The opposite party state that  there is no privity of contract as between the complainant and the opposite party, the complainant is not a consumer as defined in section 2 (de) of the Consumer Protection Act, 1986.   The complaint is thus not maintainable in law and on facts and is liable to be dismissed in limini.   The opposite party submit that the flat owners in Vasanth apartments C block had entered into separate agreements with the opposite party where under in consideration of a lump sum amount of Rs.30,000/- being paid by the prospective flat owner, the opposite party agreed to render service of supervision and management of construction of the flat.   The said agreements did not relate to any service of supervision and management of the construction of compound wall.    The construction of the compound wall is not subject matter of any agreement as between the flat owners and the opposite party.   Hence there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A25 marked.  Proof affidavit of opposite party filed and no documents marked on the side of the  opposite party and also Ex.C1 marked. 

4.   The points for the consideration is: 

1.  Whether the opposite party is liable to rectify deficiency by  constructing and completing the unconstructed portion of compound wall in the C block as prayed for?

2. Whether the complainant is entitled to a sum of Rs.1,00,000/- as compensation for mental agony with cost as prayed for?

 

5. POINTS 1 & 2:

          Heard both parties.  Perused the records (viz) complaint, written version, proof affidavit and documents etc.    The contention of the complainant is that the member of the complainant’s association purchased the flats from the opposite party individually at different points of time especially while the scheme of Vasanth Apartments “C” block was an ongoing project and the constructions were partly completed.   But on a careful perusal of the document and proof affidavit it is very clear that the opposite party is a power of attorney of the owners of the land and the complainant purchased the undivided share from the owners and entered into the agreement of construction with the specific Clause 12 & 13 agreement  that

12. As the owner of the building materials the client shall insure the building materials against fire, theft etc.

13.  The Engineer / Manager is having a collective responsibility of organizing the construction of the composite scheme of flats, the client shall not dispense with the services of the Engineer / Manager order any circumstances.

6.     Further the learned counsel for the complainant contended that the portion of the compound wall to the C Block was not completed by the opposite party who is a builder is not acceptable; because as per exclusion  clause.  

7.     The learned counsel for the opposite party contended that the opposite party is the Power of  Attorney agent of the land owners.   As per instructions of the land owners he executed the sale deed.   Further the contention of the opposite party is that  the opposite party is merely an Engineer / Manager to supervise the construction of the building including making the plan and getting is approval and supervising the construction.   Further the contention of the opposite party is that he is an engineer and renders service of supervision and management of construction of apartments.  The flat owners entered into agreements with the opposite party for consideration amount of Rs.30,000/- being paid by the prospective flat owner.   After due completion of the building and delivered of the building also given to the respective owner on 31.1.2002. without supplying any material.   The opposite party as a builder and filing the case claiming to rectify the defects is unsustainable in law.   Further the contention of the opposite party is that the alleged compound wall to the “c” block is coming under the exclusion clause of the Agreement.   Considering the facts and circumstances of the case this forum is of the considered view that the complainant is not entitled for any relief as prayed for in the complaint and the points 1 & 2 are answered accordingly.

        In the result, the complaint is dismissed.No cost.  

  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 5^th day  of  December  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainants’ side documents:

Ex.A1-                 - Copy of Brochure.

Ex.A2-                 - Copy of Advertisement of Builders scheme.

Ex.A3-                 - Copy of Sketch of Approved plan.

Ex.A4                 - Copy sketch of approved plan. (Ground floor).

Ex.A5- 5.11.2001  - Copy of sale deed of the flat.

Ex.A6-                 - Copy of Agreement of supervision and management

                              services.

Ex.A7- 26.11.2002         - Copy of Representation from the complainant  to opposite

                              party builder.

Ex.A8- 28.11.2002         - Copy of representation from the complainant to opp. party.

Ex.A9- 30.11.2002         - Copy of reply from opposite party builder to complainant.

Ex.A10- 1.12.2002         - Copy of representation from the complainant to opp. party.

Ex.A11- 8.12.2002         - copy of reply from opp. party builder to complainant.

Ex.A12- 11.12.2002-Copy of representation from the Block-A Associations

Ex.A13- 25.12.2002-Copy of reply from the opp. party.

Ex.A14- 31.12.2002- Copy of representation from the complainant.

Ex.A15- 7.3.2003  - Copy of representation from the complainant.

Ex.A16- 8.4.2003  - Copy of reply from the opposite party.

Ex.A17- 16.5.2003         - Copy of representation from the A-Block

Ex.A18- 20.7.2003 – Copy of reply from the opp. party.

Ex.A19- 28.7.2003         - Copy of representation from the complainant.

Ex.A20- 19.8.2003         - Copy of reply from opposite party

Ex.A21- 29.3.2004         - Copy of legal notice.

Ex.A22. 29.3.2004          - Copy of reply  notice.

Ex.A23- 21.7.2004         - Copy of rejoinder sent by the advocate.

Ex.A24- 30.8.2004         - Copy of representation from the complainant to opp. party.

Ex.A25-               - Copy of CMDA approved plan

Opposite party side document:      Nil 

Ex.C1   8.8.2006  - Copy of Advocate Commissioner Report.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.