Date of Filing : 06.05.2014
Date of Order : 13.04.2016
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.241/2014
WEDNESDAY THIS 13TH DAY OF APRIL 2016
R. Raman,
S/o. Late K.V. Raghavan,
No.73, Dhanalakshmi Colony,
9/4, Natarajan Street,
Vadapalani,
Chennai 600 026. ..Complainant
..Vs..
Vishwakarma Real Estates &
Constructions Pvt. Ltd.,
Rep. by its Managing Director,
Old No.5, New No.9,
Seshadri Road,
Alwarpet,
Chennai 600 018. ..Opposite party
For the Complainant : Party in person.
For the Opposite party : M/s. Kaushik N.Sharma & Co.,
Complaint under section 12 of the Consumer Protection Act 1986. The complaint is filed seeking direction against the opposite party refund of Rs.1,00,000/- charged for the open car parking, refund of excess charge of Rs.70,000/- charged towards TNEB and STP, to allot car parking on First Come – First Served basis and to pay a sum of Rs.1,00,000/- towards compensation for mental agony and cost of the complaint to the complainant.
ORDER
THIRU. B. RAMALINGAM PRESIDENT
1.The case of the complainant is briefly as follows:-
The complainant and his son namely Bharanidharan Raman have jointly booked two bed room flat in the apartments in the “Sky Park Residences”, constructed by entering with the construction agreement. Complainant has paid initial payment of Rs.11,22,760/- directly to the opposite party and a sum of Rs.41,20,395/- through the bank disbursement out of the loan availed by them with the bank. Balance loan disbursement pending against the total sanction loan by bank is Rs.3,26,925/-. The complainant has stated that at the time of booking the flat with the opposite party, they provided a cost and estimate statement which included the cost of open car parking, a sum of Rs.1,00,000/- which is illegal, as per the decision of the Hon’ble Supreme Court of India, passed in the year 2010. The said car parking charges was clubbed with also service connection charges as totaling Rs.1,70,000/-. Despite of demand made by the complainant the said amount of Rs.1,00,000/- charged for car parking was not refunded by the opposite party. Under the incidental charges amount of Rs.90,320/- was mentioned in the agreement of contract. But in the cost estimate statement provided at the time of booking TNEB and STP has been separately charged to Rs.70,000/- in addition to incidental charges. Therefore the amount of Rs.70,000/- has been charged in excess in respect of TNEB and STP under two heads. The car parking provisions was also not provided as on the basis of “First Come – First Served” policies the opposite party attitude of allotting closed car parking only to the 3 bed room apartments is also not fair on their part. As such, on the above said attitude the opposite arty have committed deficiency of service which caused mental agony and hardship and Complainant has filed this complaint claiming refund of Rs.1,00,000/- charged for the open car parking, refund of excess charge of Rs.70,000/- charged towards TNEB and STP, to allot car parking on First Come – First Served basis and to pay a sum of Rs.1,00,000- for compensation for his suffering caused on the attitude of opposite party and for litigation charges.
Written Version of opposite party is briefly as follows:
2. The opposite party deny all the averments and allegation contained in the complaint except those that are specifically admitted herein. The opposite party has admitted that as mentioned in the complaint complainant has booked for purchase of flat on 23.03.2012 with the opposite party in the complaint mentioned proposed apartment constructed by the opposite party. The initial payment made by the complainant and subsequent payment made through the bank to the opposite party are also accepted. The complainant allegations that the car parking charge mentioned in the cost and estimate and charges of Rs.70,000 mentioned for TNEB and STP are illegal and concealed are denied by this opposite party. Further the complainant allegations that the estimate and cost mentioned charge for car parking is illegal on the basis of the Supreme Court Judgment is not sustainable, since the said Hon’ble Supreme Court Judgment in Nahalchand Laloochand Pvt. Ltd., ..Vs.. Panchali Co-operative Housing Society Ltd. (2010) 9 SCC 536 was of the decision based upon the facts and circumstances of the case, particularly, on the basis of the relevant provisions of MOFA Maharastra Ownership Flats (regulations of the promotions of constructions sale, and management) Act 1963, as such the said decision will not be applicable to this case, since the complainant have agreed for payment of said cost and have executed the deed of construction agreement dated 28.03.2012, the complainant having agreed the terms and conditions mentioned in the construction agreement and executed the same accepting the total cost of the construction mentioned thereon, contrary to this, now the complainant raising objections regarding the charges for the car parking and TNEB charges as illegal and claiming refund are all not sustainable in law. The complainant being the party to the agreement the terms and conditions mentioned in the complaint are binding on the complainant. Further the complainant having defaulted in making balance payment, filing this complaint on the false allegations which amounts to premature and complainant is not entitled for any relief. Further as per the clause 53 and 54 of the terms and conditions of the agreement, if any dispute raised between the parties with regard to the said agreement, the complainant has to approach for the arbitration proceedings. Contrary to the said agreement the complaint is filed by the complainant on the baseless and vague allegations with untenable claim, the complaint is to be dismissed as not maintainable.
3. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A3 were marked on the side of the complainant. Proof affidavit of Opposite party filed and no documents was marked on the side of the opposite party.
4. The points that arise for consideration are as follows:-
1) Whether the opposite party has committed deficiency in service
and unfair trade practice as alleged by the complainant?.
2) Whether the complainant is entitled for any relief sought for in
the complaint? If so to what extent.?
5. POINTS 1 to 2 : -
Perused the complaint filed by the complainant, written version filed by opposite party, the proof affidavits filed by both the parties and the documents Ex.A1 to Ex.A3 filed on the side of complainant and also considered the both side arguments.
6. The objection made by the opposite party that as per terms and conditions of the construction agreement for the alleged dispute raised by the complainant in this complaint, the complainant would have approached for arbitration proceeding, but without adopting such procedure filing this complaint is not maintainable, this contention cannot be acceptable, since as per Sec.3 of the Consumer Protection Act 1986, the redressal available under this forum, for the complainant / consumer is in addition to and not in derogations of provision of any other law for time being in force. Therefore the complaint filed by the complainant for the dispute against the opposite party without adopting arbitration proceedings cannot be said not permissible. According to the above said provision the Consumer Protection Act 1986 provides alternative to the arbitration proceedings for redressal for the complainant / consumer to approach this forum, as such the complaint is maintainable.
7. It is not disputed by the complainant that he has entered with opposite party for the construction agreement, dated 22.03.2012 which is filed as Ex.A3 (copy of the portion of the construction agreement) on the side of complainant, in the said agreement para 4 is read as follows:
“The cost of construction of the ‘Said Apartment’ mutually agreed to is Rs.46,07,584- (Rupees Forty six lakhs seven thousand five hundred and eighty four only) plus Service Tax and excludes the cost of conveyance of the Schedule ‘D’ Property as per the sale agreement separately entered with the allottee by the VENDORS and includes Cost of Car parking, the fees, deposits and incidental expenses for Electricity Connection, Water and Sewerage and amenities charges amounting to Rs.2,86,920- (Rupees Two lakhs eighty six thousand nine hundred and twenty only)”
8. In addition to that the said agreement, the cost and estimate copy filed Ex.A1, mentioned amounts are also agreed by the complainant to be paid to the opposite party for the construction of the said flat. Therefore as contended by the opposite party that the complainant having agreed to pay Rs.1,00,000/- towards open car parking and Rs.70,000/- towards TNEB and STP provisions/charges, in the above said construction agreement, raising objection in the complaint that he is not liable to pay the said amounts towards car parking and TNEB and STP charges is not sustainable is acceptable. The complainant having executed the agreement after accepting the terms and conditions of the said agreement, the complainant is liable to pay the said amount to the opposite party is acceptable as contended by the opposite party.
9. Further the opposite party has contended that the complainant was provided with open car parking facility for which it has been charged only Rs.1,00,000/- and for other EB charges and STP charges was charged Rs.70,000/- accepting the said terms and conditions complainant has executed the construction agreement, which is legally binding on the complainant. Further the opposite party’s contended that 244 car parkings 144 are open car parking and 100 are car parking provided for the said apartment, which requires total cost of construction of car parking for entire building is above Rs.6 Crores for the construction of the same there are various components involved such as preparation of car park plan, ear marking and assigning construction including leveling, filing and plastering over head fire sprinklers, lighting for drive way construction of ramp and light fittings etc., which involves construction cost of Rs.6 crores, which has been divided between the covered and open car parking spaces. Accordingly the flat owners who availing the car parking will be charged. Therefore the complainant contention that the car parking space was considered to be a common space provided for the flat purchasers along with the purchase of UDS cannot be acceptable. Further the charges made and made liable by the complainant for the open car park to the opposite party is on the basis of construction agreement alone. Therefore the alleged charging for car parking under the construction agreement cannot be considered as sale of car parking to the complainant. The complainant has not filed any sale deed obtained in his favour for the purchase of the UDS in respect of the alleged flat. So that it cannot be contended that the open car parking provided by the opposite party to the complainant on payment of charge of Rs.1,00,000/- cannot be considered as relating to the common space provided for and purchased under the UDS sale deed.
10. Further the complainant raising objection that he is not liable to pay car parking charges, relying upon the Judgment of Hon’ble Supreme Court rendered in the case, (2010) 9 SCC 536 Nahalchand Laloochand Pvt. Ltd., -Vs- Panchali Co-operative Housing Society Ltd which has been passed with reference to the provision of MOFA Maharastra Ownership Flats (regulations of the promotions of constructions sale, and management) Act 1963. Further considering the facts and circumstances of the case mentioned in the above decision and the provisions of law relied upon in the above decisions are all different when compared with the present facts and circumstances of the case and no such provisions are statute or regulations of Tamil Nadu State Government is produced in support of the contention of the complainant in this case. Therefore the said decision of the Hon’ble Supreme court is not applicable to the present case is acceptable as contended by the opposite party.
11. Therefore the complainant contention that the complainant is not liable to pay the cost of car parking and TNEB charges, mentioned in the construction agreement to the opposite party, and which was paid already is ordered to be refunded by the opposite party are all not acceptable.
12. Further the opposite party has contended that complainant has not paid entire cost and the other charges of the flat to be paid to the opposite party as agreed in the construction agreement, whereas the complainant himself admitted he is due a sum of Rs.59,63,279/- out of which only a sum of Rs.55,36,347/- has been paid and the complainant is yet to pay a balance a sum of Rs.4,26,932/- to the opposite party till this date. The said contention of the opposite party is not denied by the complainant. Therefore the complainant being defaulter in making payment of entire cost of the flat agreed by him raising allegation about the delay in handing over of the flat in the complaint is also not sustainable.
13. Further the complainant prays in the complaint, for directing the opposite party to provide covered car parking is also not sustainable, since such prayer is against the terms and conditions of the construction agreement as contended by the opposite party.
14. As discussed above we are of the considered view that the complaint filed by the complainant against the opposite party is not maintainable as it appears against the terms and conditions of the construction agreement entered by him with the opposite party, as such the allegation attributed against the opposite party in the complaint are not proved and the complainant is not entitled for any relief sought for in the complaint against the opposite party. The complaint is liable to be dismissed. Considering the facts and circumstances of the case, the parties are directed to bear their own costs. Accordingly the points 1 and 2 are answered.
In the result, this complaint is dismissed. No cost.
Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 13th day of April 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents:
Ex.A1- - - Copy of cost of estimate statement provided by the
Opposite party at the time of booking.
Ex.A2- - - Copy of Edited cost & Estimate statement provided
Recently.
Ex.A3- - - Copy of pages highlighting information about car parking
and incidental charges in “Agreement to construct”.
Opposite party’s Exhibits:- .. Nil ..
MEMBER-I MEMBER-II PRESIDENT.
