Date of Filling : 10.09.2013.
Date of Disposal : 15.09.2016.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.
PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S. SUJATHA, B.Sc., … MEMBER - I
Consumer Complaint No.46/2013
(Dated this Thursday the 15th day of September 2016)
Mr. S. Pushparaj,
S/o. Mr. D. Subramaniyan,
No.XI, B, (S1) Samayapuram Mariamman Koil Street,
Royal Garden,
Gopurasanallur,
Kattupakkam,
Chennai - 600 056. … Complainant.
/ Versus /
Mr. M. Sairaj,
S/o. Mr. S. Munusamy,
Proprietor,
Nakshatra House Builders,
No.32A, Krishna Street, 1st Floor,
T. Nagar,
Chennai - 600 017. … Opposite party.
This complaint is coming upon before us finally on 30.08.2016 in the presence of M/s. A.R. Poovannan, Counsel for the complainant, Mr. K. Logaraj, Counsel for the opposite party and having perused the documents and evidences, written and oral arguments of both sides, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This complaint is filed by the complainant U/S 12 of the Consumer Protection Act, 1986 against the opposite party for seeking direction to finish all the pending works in the complainant’s Flat (F1) (Plot B) as per the construction agreement to pay a sum of Rs.5,00,000/-for the completion of the above said work and to pay a sum of Rs.5,00,000/- towards the compensation for the hardship, strain and mental agony caused to the complainant with cost.
2. The brief averments of the complaint is as follows:-
The opposite party is a Real estate promoter and has made an advertisement about his new project at Gopurasanallur, Kattupakkam, Chennai – 600 056. The complainant went to the opposite party’s office at T. Nagar for getting information about the project. The complainant and the opposite party then entered into a sale cum construction agreement on 06.10.2011 in respect of Flat F1 in the Apartment and all the cost of the Flats was fixed at a sum of Rs.17,76,000/- and the complainant has paid an advance of Rs.5,00,000/- to the opposite party on the same day. The complainant has paid the balance of Rs.12,76,000/- by way of bank loan to the opposite party. Thus the complainant has paid his total price as per the agreement.
3. The complainant’s house owner also insisted the complainant to vacate the house. Though the opposite party received the full amount from the complainant, he has not finished the construction work as promised and also has not even attend the phone calls of the complainant. The complainant was put to great mental agony and hardship. When the complainant approached the opposite party’s supervisor who also has not replied properly and informed the complainant to approach the Builder (Opposite party) and in turn the complainant approached the opposite party at his office at T. Nagar for the pending works in his flat and the other common works, but the opposite party has not given due respect and has not answered to the complainant. When the complainant has entered upon to the Flat and saw the following incomplete works:
- No electrical wiring was done inside the house.
- No Switch Boards were fixed.
- The bed room and kitchen lofts were not properly cleaned and painted.
- No primary polishing materials was affixed (Patti) and paint was directly applied.
- No tiles affixed in the bathroom.
- The varnish to the main door was coated only once.
- The cement mortar was not pasted properly at the windows and there were gaps at many places.
- There was no light facility outside the house
- Car parking and flooring work was not completed.
4. Further the opposite party has utilized the electricity and water for the next construction of Flat A from the complainant’s Flat i.e. from Flat B. Further the opposite party stored and placed all the construction materials in front of the complainant’s flat and caused great inconvenience to the complainant. When they opposed to take water from the sump, the opposite party will come there and threaten with Police to complete their work and initiate criminal action. Then the complainant along with other flat owners lodged a complaint about the illegal activities by the opposite party and the Sub-Inspector of Police, has inspected the Flats and called the opposite party over phone and instructed him to come to the Police Station but ended in vain. Moreover, the UDS was not properly apportioned to all the flat owners.
5. The following are the pending work in common area:
i . EB Board was not properly covered.
ii. No. on/off switch for each connection.
iii. Common water outlet was not provided properly.
iv. The Electric service was obtained in the name of the opposite party for all the flats, even without the consent of the flat owners.
v. The sewage water from all the four flats were taken out in a neighbours land near the master bed room of ground floor flat.
vi. Motor to the bore well not fixed.
vii. The alignment of the front gate is not properly fixed.
viii. The painting was not done as per the Elevation design.
ix. The finishing of the building was not done as per the elevation design.
x. Aluminum panel sheet cover was not removed for the past one year.
xi. Only single coat paint was done to the main gate, hand rails and water tank laden.
xii. Car parking was not registered to the complainant.
xiii. The works mentioned in the agreement of sale and construction was not completed properly.
xiv. The EB earth provision in the car parking place was not properly closed.
xv. Overhead water tank cover not provided.
xvi. No locks were provided at the open terrace.
xvii. Water pipeline not provided in the care parking and upstairs.
xviii. The provisions for Telephone and Television cable was not provided along with the switch board while wiring. The act of the opposite party by not completing the work even after the full payment as per the agreement is high handed and it amounts to gross deficiency in their service. Hence this complaint.
6. The contention of written version of the opposite party is briefly as follows:-
This complaint is not sustainable either in law or on facts, since the complainant approached this Honorable Tribunal with complete false, frivolous, untruth allegations and averments. It is true that the complainant approached the opposite party at his office for purchase of undivided share of land together with construction of Flat bearing No.F1, in the Project constructed by the opposite party at the Gopurasanallur, Kattupakkam. But it is false to allege by the complainant that the cost of the Flat is Rs.17,76,000/- instead of Rs.20,76,000/- and to allege he has made the entire sale consideration to the land and building conveyed to him. The complainant has made the sum of Rs.17,35,000/- on various dates, still the complainant owes to pay the sum of Rs.3,41,000/- to the opposite party.
7. After receiving a sum of Rs.5,00,000/- the opposite party entered into an agreement of sale dated 06.10.2011 with the complainant and also he entered the agreement for construction of Flat dated:06.10.2011 incorporating with detailed specifications purported to be made in the Flat. Accordingly, he had completed the entire works as agreed and conveyed to the complainant. Then only, the complainant has performed the house worming ceremony immediately he occupied the flat without making the balance payment to the opposite party. It is false to allege by the complainant that the opposite party has not completed any work before May 2012. The opposite party denies that he has not completed more than 30% of work in the Flat and 50% of work in common and failed to keep up his promise and also he has not attended the phone calls of the complainant. It is only for the purpose of this complaint and the said allegations are not supported by any documentary proof. The other averments that he stayed in a rental house and paid rent are all unaware and not concerned to this opposite party.
8. It is false to allege by the complainant that he had approached the supervisor and informed about the house warming ceremony and the work is yet to be completed and further denies that the supervisor not replied properly and informed to approach the opposite party and also the respected him properly. The opposite party is a qualified Engineer and also employed qualified educated persons in the civil line to supervise the construction work and whenever required he visits the premises personally all over the places wherever his projects under process including the project constructed for complainants. The opposite party is a reputed builder and is engaged in this business for more than 8 years and completed around 20 projects in and around Chennai and further states that so far there were no complaints against him from his customers/buyers. This particular complainant with an intention to cheat the balance money payable by him, he has preferred to file this vexatious complaint against this opposite party only.
9. The act of the complainant portraying such publication and thereby preventing the intending buyers of the opposite party for the construction made in the neighboring places and casting imputation to the image of the opposite party in General Public is high handed and condemnable. The opposite party has already obtained electricity connection and constructed a sump, sink and a separate borewell to the project under process in such fact making allegations by the complainant is without an iota of truth. The opposite party having good faith on the complaints and believing his words has agreed to sell the UDS and constructed the Flat as per the specifications. The complainant has filed the above complaint with a malafide intention to extract money from the opposite party. The police visited the site and made enquires since there was no commotion or occurrence as alleged by the complainant, the police warned the complainant not to file such false complaints and thereby wasting the time of the police.
10. The complainant is well known to him have allowed them to occupy the flats despite the pending payments. After occupation of the Flats, the above said complainant instigating the other Flat owners has started harassing the opposite party and as well as his men to do certain works which are not covered under the construction agreement in this specifications and has prevented the men of the opposite party from doing the construction work of the neighboring projects continuously, thereby rendering the opposite party to undergo a lot of mental agony and hardship and also indulging in tarnishing his image and reputation among the other builders and general public.
11. The proportionate undivided share has not been made to the complainant is farfetched and unfair. The UDS also shared among the complainants proportionately. The complainant is not entitled to have undivided shares as per his calculations. Further it is false to allege that the common electric connection has been obtained in the name of the opposite party. There was no cause of action to file the above complaint and also it is false to allege that the complainant is undergoing mental agony and hardship. There is no deficiency of service on the part of the opposite party. Hence this complaint is liable to be dismissed.
12. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A6 were marked. While so, on the side of the opposite party, the proof affidavit is filed and Ex.B1 to Ex.B4 were marked on his side.
13. At this juncture, the point for consideration before this Forum is:-
- Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?
- To what other reliefs, the complainant is entitled to?
14. Written arguments filed and oral arguments adduced on both sides.
15. Point no.1:-
According to the case of the complainant, the opposite party has failed to complete the work even after the full payment made as per the agreement and handover the Flat with all amenities within the stipulated time as per the agreement and thereby caused mental agony and hardship which clearly amounts to gross deficiency in service on the part of the opposite party. On the other hand, it is contended by the opposite party that all the allegations made in the complaint are all false and frivolous and infact the opposite party has fully completed the construction work of the alleged flat with the facilities as mentioned in the agreement and handed over within the stipulated time and on finishing the electricity connection, tax assessment, municipal water connection etc. in the name of the complainant even before this complainant has come forward this complaint. This complaint has been filed by the complainant only for the purpose of evading the balance payment to be paid by the complainant to the opposite party and therefore there is no cause of action in this complaint.
16. At this juncture, it goes without saying that the duty cast upon the complainant to prove the allegations made in the complaint by means of relevant and consistent evidence beyond all reasonable doubts. First of all, on careful perusal of the proof affidavit of the complainant, it is seen that the complainant and the opposite party entered into sale cum construction agreement on 06.10.2011 for the alleged Flat on payment of advance amount of Rs.5,00,000/-. The agreement for the sale and construction agreement are marked as Ex.A1 & Ex.A2 and subsequently, Ex.A3, the sale deed was registered on 21.10.2011 in this regard. It is further learnt that on full payment of the cost price of the flat by the complainant, as per the agreement, when the date of Grahapravesam was fixed by the complainant, the opposite party has not completed more than 30% of work in the flat and 50% of work in the common works and thereby, the opposite party failed to keep his promise and not finished the electrical, wiring and not fixed the tiles and non completion of car parking and flooring works etc. and thereby caused much hardship to the complainant and therefore, the complainant had approached the opposite party in several times. But the opposite party has not failed to comply the demands of the complainant. It is further stated by the complainant that he has preferred the complaint before the Inspector of Police, Poonamalle against the opposite party for the failure in completion of the flat and the CSRB was issued by the concerned Police Station to that effect which are marked as Ex.A4 & Ex.A5 respectively and it was advised by the S.I. of Police to both parties that they will proceed in Civil Court. In this connection, the complainant had sent a letter to the opposite party through Registered post which is marked as Ex.A6.
17. At the outset, on going through the evidence of the opposite party, it is learnt that the Ex.A1 to Ex.A3, Sale and construction agreement and Sale deed are all admitted by the opposite parties. But it is denied by the opposite party that the complainant has not paid the full amount as per the agreement and in fact the complainant has to pay a balance of Rs.3,41,000/- and also denied all other allegation which are of false and frivolous.
18. It is further narrated that the opposite party has fully completed the construction work and other works and handed over the flat to the complainant within the stipulated time as mentioned in the Ex.B1 & Ex.B2 which are as same with that of Ex.A1 & Ex.A2 and the photograph of the full completion of the alleged apartment is marked as Ex.B3. It is further stated that the UDS was properly apportioned to all the flat owners and the car parking also allotted and in fact the complainant with a malafide intention to extract money by illegal means and to avoid balance payment to be paid to the opposite party. This complaint has been filed without any cause of action and affixed Ex.B4, public notice purposely issued by the complainant to defame the reputation of the opposite party which clearly shows the actual intension of the complainant and therefore, this complaint is liable to be dismissed.
19. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that both parties have entered the construction and sale agreement for the purchase of a flat in the alleged address and in this connection, the sale deed was registered between them are all admitted facts. If it is so, the allegation made by the complainant is that the opposite party has not completed to the alleged flat in a full pledged manner and not handed over within the stipulated time as per the agreement. In such circumstances, this Forum has to consider whether the allegations have been proved by the complainant through acceptable evidence. On perusal of the evidence of the complainant, there is no concrete evidence to show about the non completion of specific works as mentioned in the complaint in para. no.5. Moreover, in order to prove the same, no expert opinion i.e. Qualified Engineer’s report has been filed by the complainant before this Forum. While so, the opposite party has produced Ex.B3, photograph for the completion of the alleged apartment. At this juncture, to disprove the same the complainant has not submitted any document on his side. In furtherance, it is noticed the written arguments submitted by the opposite party, the enclosed documents dated: 31.12.2014, the letter addressed to the Manager, Oriental Bank of Commerce, T. Nagar, Chennai though not marked, it clearly shows the completion of the alleged Plot of the complainant herein. Therefore, mere allegations made in the complaint is not sufficient to conclude that the opposite party has failed to complete the work as per the construction agreement, Ex.A2.
20. The next thing to be decided is as to whether the opposite party has not handed over the flat within the stipulated time as per Ex.A2. At the outset, on careful perusal of the Ex.A2, the construction agreement it is clearly mentioned as below:
“The builder hereby agreed to complete the construction and handed over / deliver of the flat to the Intended Purchaser within three months and two months will be grace time from the date of this agreement”.
As per the above clause, it is clear that the total period of completion is of five months from the date of Ex.A2 dated 17.03.2012 including the accepted grace period. In fact, nowhere either in the complaint or in the proof affidavit of the complainant, has not mentioned specifically the date of handover / delivery of the flat to the complainant which is clearly fatal to the allegations made by the complainant in this aspect. Similarly, the date of Grahapravesam also not mentioned in the complaint. Such being so, during the stage of written arguments, the opposite party has filed the documents relating to hand over the flat which already was marked as Ex.B3 and Electricity Board connection, tax assessment and municipal water connection receipt are consisted in the name of the complainant is very clear to sustain the averments of the opposite party. Such documents also are not at all disputed by the complainant which clearly reveals the facts that the above documents are all admitted one. From the above said documents, it is crystal clear that the alleged flat has been handed over to the complainant by the opposite party within the stipulated time as mentioned in the Ex.A2. So in this aspect also the complainant has not proved the deficiency of service on the part of the opposite party. Regarding the other allegation, nothing evidence produced by the complainant before this Forum.
21. In the light of above facts and circumstances, this Forum has come to conclusion that the complainant has not proved the allegation of deficiency of service on the part of the opposite party with consistent evidence and therefore the plea taken by the opposite party holds good. Thus point no.1 is answered accordingly.
22. Point no.2:-
As per the decision arrived in point no.1, the complainant is not at all entitled for any relief as prayed in the complaint. Thus, point no.2 is answered accordingly.
In the result, this complaint is dismissed. No cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 15th September 2016.
Sd/-**** Sd/-****
MEMBER - I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 07.10.2011 | Sale Agreement | Xerox copy |
Ex.A2 | 07.10.2011 | Construction Agreement | Xerox copy |
Ex.A3 | 07.05.2012 | Sale Deed | Xerox copy |
Ex.A4 | 21.11.2012 | Complaint by the complainant to the Inspector of Police, Poonamallee | Xerox copy |
Ex.A5 | 21.11.2012 | CSRB | Xerox copy |
Ex.A6 | 24.06.2013 | Letter of the complainant through Registered post to the opposite party | Xerox copy |
List of documents filed by the opposite party:-
Ex.B1 | 07.10.2011 | Sale Agreement | Xerox copy |
Ex.B2 | 07.10.2011 | Construction Agreement | Xerox copy |
Ex.B3 | | Photo of Venial Banner | Xerox copy |
Ex.B4 | | Public Notice | Xerox copy |
Sd/-**** Sd/-****
MEMBER - I PRESIDENT
