Tamil Nadu

StateCommission

CC/97/2019

M/s.Yasodha Soundararajan, W/o D.Soundararajan, No.44-A, 14th Cross, Thirumagal Nagar, Peelamedu Pudur, Coimbatore-641 004.And Another - Complainant(s)

Versus

Managing Director, M/s.Puravankara Projects Ltd, 2247/48, Trichy Road, Singanallur, Coimbatore-641 0 - Opp.Party(s)

M/s.S.Gunalan

28 Nov 2022

ORDER

Date of filing : 21.05.2019

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

 

Present:       Hon’ble THIRU. JUSTICE R. SUBBIAH              :    PRESIDENT

                     THIRU. R VENKATESAPERUMAL                     :   MEMBER

 

C.C. No.97/2019

DATED THE 28^TH DAY OF NOVEMBER 2022

1. Mrs. Yasodha Soundararajan,

W/o. Mr. D. Soundarajan.

 

2. Mr. D. Soundararajan,

S/o. Mr. N. Damodaran,

Both are residing at:

No.44-A, 14^th Cross,

Thirumagal Nagar,

Peelamedu Pudur,

Coimbatore – 641 004.                                                                            .. Complainants.

                                                       - Versus –

 

The Managing Director,

M/s. Puravanakara Projects Limited,

No.2247/48, Trichy Road,

Singanallur,

Coimbatore – 641 005.                                                                           .. Opposite party.

 

Counsel for the Complainants                 : M/s. S. Gunalan

 

Counsel for the Opposite party             : M/s. R. Sathish Kumar

 

 

This complaint having come up for final hearing before us on 28.11.2022  and on hearing the arguments of both parties and upon perusing the material records submitted by both parties and this Commission made the following in the open Court:-

 

ORDER

Thiru. R VENKATESAPERUMAL, MEMBER

 

The present complaint was filed by the complainants against the opposite party for the following reliefs:

1. To refund a sum of Rs.33,17,212/- along with interest at the rate of 18% p.a. from May 2013 till the date of payment to the complainants;
2. To pay a sum of Rs.5,00,000/- towards compensation for financial loss, untold mental agony and physical hardship suffered by  the complainants;

3.  To pay a sum of Rs.10,000/- towards the litigation expenses.

 

2.         The case of the complainants in brief  is as follows:-

            It is the case of the complainants that he entered into a Construction Agreement and Agreement for Sale with the opposite party on 05.05.2012 for a residential unit of 3 BHK apartment bearing No.BL-A104 on the 1^st Floor in the ‘A’ Block/ Wing of the residential complex known as ‘PURVA BLUE MONT’ situated at Singanallur Village, Coimbatore Taluk & District.   The said residential unit is having a built up area of 1457 sq. ft. and proportionate common area of 437 sq. ft. together with covered car parking space.   The cost of the construction of the said apartment was fixed as Rs.40,88,000/-.   On 05.05.2012, the complainants paid a sum of Rs.30,000/- as advance to the  opposite party.   Based upon the said Agreements, the opposite party sold an undivided share of 608.91 sq. ft. comprised in the schedule ‘B’ property, morefully set out in the schedule ‘E’ property for a total sale consideration of Rs.23,75,840/- subject to terms and conditions and covenants contained in the agreement of sale dt.05.05.2012.  The complainants paid a sum of Rs.1,70,000/- towards the sale consideration for the undivided share of 608.91 sq. ft.  The opposite party agreed to handover the constructed apartment to the complainants on or before 31.12.2013 with a grace period of 6 months thereafter.  The complainants paid a total sum of Rs.33,17,212/- to the opposite party against the total cost of Rs.64,63,840/- for the purchase of the apartment.  As per the Agreement, the balance amount of Rs.31,46,628/- is to be paid at the time of occupation of the apartment.   The opposite party did not complete the construction works as per the agreement till June 2014. 
Even after several requests and demands of the complainants, the opposite party has not come forward to complete the construction works.   Finally on 25.09.2018, to the shock and surprise of the complainants, the opposite party has sent a cancellation letter to the complainants.    Thereafter on 02.01.2019, the opposite party sent a cheque dt.  21.12.2018 for an amount of Rs.17,10,378/- to the complainants as refund against the total payment of Rs.33,17,212/- but the said cheque was returned to the opposite party.  The opposite party committed breach of trust against the complainants who believed for the past 6½ years for allotment of the apartment. Hence on 15.02.2019, the complainants issued legal notice to the opposite party for the refund of Rs.33,17,212/- along with interest.  On 28.02.2019, the opposite party sent a reply with baseless and untenable allegations against the complainants.  The act of the opposite party caused great mental agony and hardship to the complainants.   Hence, the complaint is filed for the reliefs mentioned above.

 

2.         Resisting the said complaint, the opposite party has filed a version by stating that

there is no consumer relationship between the ‘purchaser’ and the ‘developer’.  The nature of the construction business is depending upon several factors like availability of raw materials, labour, governmental compliances and procedures, vagaries of nature and several unforeseen and uncertain events and the need for elaborate evidence regarding the rights and liabilities of the parties cannot be adjudicated by the summary nature of the consumer proceedings.  Hence, the complaint ought to be dismissed.   

 

3.         Further, the complainants are default in payment and it was intimated to them by email dt.21.02.2013.  It is stated in sub-clause 7 (a) of the Construction Agreement that

            “Any breach of the terms of the agreement or default by the second party in payment of consideration / cost of construction or installment thereof shall be construed as a breach of contract committed by the second party and without prejudice to any other rights, the First Party at its discretion may: either continue with the contract and claim the amounts in default / arrears with interest at 2% per month from the date of default till the date of payment and even if amounts are paid the First Party will be entitled to an extension of time delivery for delivery of the apartment”.  Hence, the complainants are liable to pay penalty for default in payment as compensation to the opposite party.  Therefore, the opposite party had to withhold handing over the apartment.  Furthermore, in order to complete the project despite the said defaults, the opposite party had incurred additional expenses and has completed the project.  The opposite party had granted sufficient time for making payments.   Finally on 24.08.2017, the opposite party had intimated termination of contract.   The opposite party is not liable to pay compensation to the complainants as there is no deficiency on the part of them as alleged in the complaint.  Hence, the complaint is liable to be dismissed.

 

4.         In order to prove the case, the complainants have filed proof affidavit and 15 documents were marked as Ex.A1 to A15.   On the side of the opposite party proof affidavit is filed but no document is marked.

 

5.         The points for consideration before this Commission is:-

1. Whether there is any deficiency in service on the part of the opposite party as prayed for?
2. Whether the complainants are entitled for the relief as prayed for?

6.         Point No.1:-

The complainants have filed their written arguments.  Heard the submissions of the counsel for both parties and carefully perused the materials available on record.   The complainants entered into a Construction Agreement and Agreement for Sale with the opposite party on 05.05.2012 for a residential unit of 3 BHK apartment bearing No.BL-A104 on the 1^st Floor in the ‘A’ Block/ Wing of the residential complex known as ‘PURVA BLUE MONT’ situated at Singanallur Village, Coimbatore Taluk & District.   Ex.A1 & Ex.A2 are the Construction Agreement and Agreement of Sale entered between the parties.  The said residential unit is having a built up area of 1457 sq. ft. and proportionate common area of 437 sq. ft. together with covered car parking space.   The cost of the construction of the said apartment was fixed as Rs.40,88,000/-.   On 05.05.2012, the complainants paid a sum of Rs.30,000/- as advance to the  opposite party.   Based upon the said Agreements, the opposite party sold an undivided share of 608.91 sq. ft. comprised in the schedule ‘B’ property, morefully set out in the schedule ‘E’ property for a total sale consideration of Rs.23,75,840/- subject to terms and conditions and covenants contained in the agreement of sale dt.05.05.2012.  The complainants paid a sum of Rs.1,70,000/- towards the sale consideration for the undivided share of 608.91 sq. ft.  The opposite party agreed to handover the constructed apartment to the complainants on or before 31.12.2013 with a grace period of 6 months thereafter.  The complainants paid a total sum of Rs.33,17,212/- to the opposite party against the total cost of Rs.64,63,840/- for the purchase of the apartment.  As per the Agreement, the balance amount of Rs.31,46,628/- to be payable at the time of occupation of the apartment.   The opposite party did not complete the construction works as per the agreement till June 2014. 
Even after several requests and demands of the complainants, the opposite party has not come forward to complete the construction works.   Finally on 25.09.2018, to the shock and surprise of the complainants, the opposite party has sent a cancellation letter to the complainants.    Thereafter on 02.01.2019, the opposite party sent a cheque dt.  21.12.2018 for an amount of Rs.17,10,378/- to the complainants as per Ex.A11 but the said cheque was returned as refund against the total payment of Rs.33,17,212/-.  The opposite party had committed breach of trust against the complainants who believed for the past 6½ years for allotment of the apartment.   Hence on 15.02.2019, the complainants issued legal notice as per Ex.A12 to the opposite party for the refund of Rs.33,17,212/- along with interest.  On 28.02.2019, the opposite party sent a reply as per Ex.A15 with baseless and untenable allegations against the complainants. 

 

8.         Further, the complainants are default in payment and it was intimated to them by email dt.21.02.2013.  It is stated in sub-clause 7 (a) of the Construction Agreement that

            “Any breach of the terms of the agreement or default by the second party in payment of consideration / cost of construction or installment thereof shall be construed as a breach of contract committed by the second party and without prejudice to any other rights, the First Party at its discretion may: either continue with the contract and claim the amounts in default / arrears with interest at 2% per month from the date of default till the date of payment and even if amounts are paid the First Party will be entitled to an extension of time delivery for delivery of the apartment”.  Hence, the complainants are liable to pay penalty for default in payment as compensation to the opposite party.  Therefore, the opposite party had to withhold handing over the apartment.  Furthermore, in order to complete the project despite the said defaults, the opposite party had incurred additional expenses and has completed the project.  The opposite party had granted sufficient time for making payments.   Finally on 24.08.2017, the opposite party had intimated termination of contract.   Thereafter on 02.01.2019, the opposite party sent a cheque dt.  21.12.2018 for an amount of Rs.17,10,378/- to the complainants as per Ex.A11 as refund against the total payment of Rs.33,17,212/- but the said cheque was returned.   Hence, the opposite party is legally obliged to refund the balance amount of Rs.33,17,212/- which  was received from the complainants.  Therefore, failing to pay the balance amount to the complainants clearly amount to deficiency in service.  Thus, we hold that the opposite party had committed clear deficiency in service and unfair trade practice and we answer point No.1 in favour of the complainants.

 

9.         Point No.2:-

As we have come to the conclusion that the opposite party has committed deficiency in service and unfair trade practice the complainants should be compensated.  Thus, the complainants are entitled for refund of the sum of Rs.33,17,212/- with interest at the rate of 9% p.a. from the date of complaint till realization.  Further, they are also entitled for a compensation of Rs.2,00,000/- for the mental agony and hardship suffered by him.  Cost of Rs.25,000/- is awarded to the complainants.  Thus, we answer point No.2 in favour of the complainants.

In the result, this complaint is partly allowed as follows :-

1. The opposite party shall refund the sum of Rs.33,17,212/- (Rupees Thirty three lakhs seventeen thousand two hundred and twelve only) along with interest at the rate of 9% p.a. from the date of complaint (i.e.) 21.05.2019 till realization to the complainants;
2. Compensation of Rs.2,00,000/- (Rupees Two Lakhs only) for the mental agony & hardship;
3. Cost of Rs.25,000/- (Rupees Twenty five thousand only) towards litigation expenses. 

 

 

 

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

 

List of documents filed by the complainants:-   

Ex.A1	05.05.2012	Copy of Construction Agreement between the complainants and opposite party
Ex.A2	05.05.2012	Copy of Agreement for Sale between the complainants and opposite party
Ex.A3	04.06.2015	Opposite parties development progress of apartments in 2015
Ex.A4	09.03.2016	Copy of mail regarding final handover of apartments to the complainants (March 2017 with buffer time of 6 months)
Ex.A5	11.05.2016	Copy of email of the Association President to opposite party
Ex.A6	11.05.2016	Copy of reply to the opposite party with assurance
Ex.A7	13.05.2016	Copy of proof of delay mail message to the complainants
Ex.A8	10.01.2017	Copy of mail regarding wrong pending dues to the complainants
Ex.A9	19.01.2017	Copy of interest waiver letter of the complainants to opposite party
Ex.A10	25.09.2018	Copy of Cancellation letter of the apartment of the opposite party to complainants
Ex.A11	02.01.2019	Copy of refund cheque to the complainants by opposite party
Ex.A12	15.02.2019	Office copy of the legal notices to the opposite party offices with original postal acknowledgment
Ex.A13	18.02.2019	Original acknowledgement cards (2 nos.)
Ex.A14	18.02.2019	Original returned cover left from Chennai Branch of the opposite party
Ex.A15	28.02.2019	Original reply notice of the opposite party to the complainant’s Counsel

 

List of documents filed by the opposite party:-   

Nil

 

 

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

 

KIR/TNSCDRC/Chennai/Orders/November/2022.