Tamil Nadu

South Chennai

294/2011

Parthiban Sundram - Complainant(s)

Versus

Mantri Developers Pvt Ltd., - Opp.Party(s)

M/s.R.Kumar

03 Sep 2018

ORDER

                                                                        Date of Filing  : 10.10.2011

                                                                          Date of Order : 03.09.2018

 

DISTRICT CONSUMER DISPUTES 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

 

C.C. No.294/2011

DATED THIS MONDAY THE 03^RD DAY OF SEPTEMBER 2018

                                 

Parthiban Sundaram,

Represented by his father and Power Agent

Mr. R. Sundaram,

No.6B, Athi Mariamman Koil Street,

Thanthoni East,

Suruga Gate,

Karur – 639 003.                                                        .. Complainant.                                              

 

              ..Versus..

 

1. Mantri Developers Pvt. Limited,

Represented by its Director,

Plot No.144/145, First Floor,

Malvika Centre,

Kodambakkam High Road,

Nungambakkam,

Chennai – 600 034.

 

2. Housing Development Finance Corporation Ltd.,

Rep. by its Director,

ITC Centre,

No.760, Anna Salai,

Chennai – 600 002.                                               ..  Opposite parties.

          

Counsel for complainant            :  M/s. R. Kumar & others

Counsel for 1^st opposite party   :  M/s. Sarvabhauman Associates

Counsel for 2^nd opposite party  :  M/s. Sampathkumar & Associates &  

                                                      another

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to rectify the deficiency in service by withdrawing the demand made for Equated Monthly Instalments and not raising any further demands for Equated Monthly Instalments from the complainant till completion of the project Mantri Synergy 1 in all respects inclusive of common amenities as set out in the agreement for construction dated:02.12.2007 between the complainant and the 1^st opposite party project and to pay a sum of Rs.2,00,000/- towards compensation for delay in completion of the project in violation of the terms of the agreement dated:02.12.2007 and to pay a sum of Rs.1,00,000/- towards compensation for mental agony and hardship with cost to the complainant.

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

The complainant submits that on seeing the brochure of the 1^st opposite party, the complainant was interested in acquiring a residential unit of the opposite parties’ project known as “Mantri Synergy 1”. The complainants had booked the flat on the specific representation that all the blocks in the Project are of uniform nature and composition and that the project would be developed as a premium project providing high value to those who book at the inception of the project.  The 1^st opposite party entered into an agreement of sale of undivided share in the land and an agreement of construction dated:02.12.2007 with the complainant.  According to the terms and conditions, the 1^st opposite party has not carried out all the construction works even after creating a Tripartite Agreement with the 2^nd opposite party during January 2008.   The 1^st opposite party agreed to pay pre-EMI interest till handing over the possession of the apartment.  According to the agreement of construction, the possession of flat shall be handed over by December 2009.  On 19.02.2011, the complainant received a letter from the 1^st opposite party informing the complainant that for the month of February 2011 pre-EMI has been borne by the 1^st opposite party and calling upon the complainants to start paying the pre EMI from March 2011 onwards.  The complainant submits that the 1^st opposite party has handed over the possession of the property and the complainant took possession of the property in the year 2011.   The 1^st opposite party failed and neglected to do several works as per the specification in the agreement.  Further the complainant states that the complainant has paid the EMIs regularly without any default.   The complainant states that the 1^st opposite party has not even registered the undivided interest in land in favour of the complainant and therefore, the 2^nd opposite party ought not to have called on the complainant to make the EMI payment.   The act of the opposite parties caused great mental agony.  Therefore, the complainant issued legal notice dated:28.07.2009 and sent several emails and letter to the opposite parties but the opposite parties has not come forward to settle the demands of the complainant.   Thereafter, the complaint is filed.

2.      The brief averments in the written version filed by the  1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.  The 1^st opposite party states that the complainant offered to purchase an apartment in the 7^th Floor of Block G in “Mantri Synergy 1” and signed an application for allotment and paid the Earnest Money Deposit calculated at the rate of 10% on the total cost.  On cancellation, there shall be a deduction of Rs.10,000/- and the remaining EMD shall be refunded.   The complainant availed a housing loan from the 2^nd opposite party and therefore apart from the agreement of sale in respect of the undivided share in the land and the agreement for construction, the complainant, the 1^st opposite party entered into a letter of undertaking/tripartite agreement during January 2008 with the petitioner and the 2^nd opposite party.  Due to the slide in the real estate market the cost of construction was reworked.    The 1^st opposite party is ready and willing to pay Rs.3 per sq; ft. from December 2009 to March 2011.  The compensation claimed by the complainant is exorbitant. Therefore, the complaint is liable to be  dismissed.

3.      The brief averments in the written version filed by the 2^nd  opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.  The 2^nd opposite party states that the complainant availed a loan of Rs.64,34,000/- from the 2^nd opposite party and executed a loan agreement on 15.02.2008.  The Tripartite agreement came about on the request made by both the complainant and the 1^st opposite party.  The 1^st opposite party had agreed to pay pre EMI till handing over of the possession of the project duly completed in all aspects by the developer as per the terms and conditions of construction agreement executed by the borrower and the developer (1^st opposite party), if 90% of the loan amount was disbursed upfront.   The reading of the tripartite agreement would clearly show that the same was executed primarily to secure the loan since the registration of the Sale Deed was deferred.  The 2^nd opposite party has only endorsed to the security angle in the Tripartite Agreement and nothing more.  All other terms are between the complainant and the 1^st opposite party and the 1^st opposite party has only agreed to step into the shoes of the complainant in discharging the interest payable on the loan disbursed.   Thus a clear principal and agent relationship is created between the complainant and the 1^st opposite party as far as the loan payment is concerned.  The primary responsibility of repaying the loan always being on the complainant, she cannot shrug away from her responsibility.  The borrowing is admitted by the complainant and as such interest is automatically payable as per the terms of the loan agreement executed by the complainant.  There cannot be any injunction on this score.  The complainant being the borrower is entitled to discharge her liability and if the 1^st opposite party goes back on a promise made to pay the Pre EMI on her behalf, the remedy open to the complainant is to discharge her admitted liability and sue the 1^st opposite party for reimbursement if at all.  The 2^nd opposite party cannot be held to be negligent for invoking the provisions of the loan agreement admittedly executed by the complainant.

4.     Even as per terms of the  Tripartite agreement (Clause m) it has been made abundantly clear that the Tripartite agreement was made just for the convenience of the borrower (complainant) and the developer (1^st opposite party) and the tripartite agreement shall not affect the repayment of the monthly instalments by the borrower (complainant) to the 2^nd opposite party from time to time and performance of the covenants as agreed and signed by the borrower (complainant) with HDFC (the 2^nd opposite party).  This opposite party is not aware of the meeting between the complainant and the 1^st opposite party 03/07/2009 and as such the terms of agreement during that meeting would not bind the 2^nd opposite party.   The 2^nd opposite party receive a communication from the 1^st opposite party that they are handing over possession of the apartment to the complainant and on receipt thereof the 2^nd opposite party wrote to the complainant to remit the Pre EMI interest since the 1^st opposite party has informed their intention to discontinue.  Whether the 1^st opposite party is right in announcing possession when the entire project is not ready is not within the purview of the 2^nd opposite party and nowhere has the 2^nd opposite party committed to ensure completion of the project before the apartment is handed over to the complainant.  The 2^nd opposite party from its side did depute its Engineer to inspect the apartment of the complainant to assess if the apartment has been completed in all respects.   Further it has been informed by the 1^st opposite party that they are ready and willing to have the Sale Deed registered and that the complainant is not willing to come forward to have the same registered, that being the case the complainant cannot bank on the averments in the Tripartite agreement which says that the 1^st opposite party shall have the loan refunded in the event the land owner / developer does not execute the Sale Deed in favour of the borrower (complainant).     The loan account of the complainant has already become a non performing asset (NPA) and as such the 2^nd opposite party has every right to proceed against the property mortgaged and the complainant personally in order to recover the admitted borrowing.   Therefore, there is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

5.    To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A15 are marked.  Proof affidavit of the 1^st opposite party filed and no documents filed and marked on the side of the 1^st opposite party.  Proof affidavit of the 1^st opposite party filed and documents Ex.B1 & Ex.B2 filed and marked on the side of the 1^st opposite party.  Proof affidavit of the 2^nd opposite party filed and documents Ex.B3 & Ex.B4 are filed and marked on the side of the 2^nd opposite party.

6.      The points for consideration is:-

1. Whether the 2^nd opposite  party is liable to rectify  the deficiency in service by withdrawing the demand made for Equated monthly instalments as prayed for?

2. Whether the complainant is entitled to a sum of Rs.2,00,000/- towards the delay in completion and handing over the apartment by the 1^st opposite party as prayed for?

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

7.      On point:-

Heard both sides.  Perused the records namely the complaint, written version, proof affidavits, documents etc.  The learned Counsel for the complainant contended that on seeing the brochure of the 1^st opposite party Ex.A1, the complainant was interested in acquiring a residential unit of the opposite parties’ project known as “Mantri Synergy 1”.  The complainants had booked the flat on the specific representation that all the blocks in the Project are of uniform nature and composition and that the project would be developed as a premium project providing high value to those who book at the inception of the project.  Ex.A2 is the application and receipt for margin money.  The 1^st opposite party entered into an agreement of sale of undivided share in the land dated:02.12.2007 and an agreement of construction with clear terms as per EX.A4 & Ex.A5.   According to the terms and conditions, the 1^st opposite party has not carried out all the construction works even after creating a Tripartite Agreement with the 2^nd opposite party during January 2008 as per Ex.A2.   The 1^st opposite party agreed to pay pre EMI interest till handing over the possession of the apartment.  According to Ex.A5, the agreement of  construction, the possession of flat shall be handed over by December 2009.  On 19.02.2011, the complainant received a letter from the 1^st opposite party informing that the flat booked by the complainant have reached the completion stage and is ready for possession as per Ex.A10  proves the 1^st opposite party has not complied the terms and conditions in the agreement.  On the other hand, the complainant was regularly paying the EMI without any delay.   As per Clause 14.5 of the agreement of construction vide Ex.A5 it reads as follows:

“In the event of delay in handing over possession of the Apartment beyond the time mentioned in Clause 6.1; the Developer shall pay a compensation of Rs.3.00 (Rupee Three Only) per sq. Ft. Of Saleable Area per month to the purchaser”.  

8.     The learned Counsel for the complainant contended that the 1^st opposite party has handed over the possession of the property and the complainant took possession of the property in the year 2011.   Ex.B1 is the Completion Certificate issued by the Padur Panchayat.  The 1^st opposite party failed and neglected to do several works as per the specification in the agreement.  But the complainant has not pleaded and proved such deficiency in construction by the opposite parties.  The Advocate Commissioner appointed also returned the warrant without filing report stating that “Advocate Commissioner’s remuneration has not been” paid proves that the complainant has not established the allegation of deficiency in construction.  Further the contention of the complainant is that the complainant has paid the EMIs regularly and the 2^nd opposite party also filed a Memo which reads as follows:

“We do hereby confirm that the Loan A/c No.354583052 pertaining to Mr. Parthibhan Sundaram has been closed fully.  Hence the Hon’ble Consumer Disputes Redressal Forum can be informed accordingly”.

 The only contentions remains back is the compensation for the delay in handing over the possession of the flat.  The 1^st opposite party in its written version very clearly admitted that they are willing to pay a sum of Rs.3/- p.m. per sq ft from December 2009 onwards for the delay in handing over of possession in keeping with Clause 14.5 of the Agreement for Construction.

9.     The learned Counsel for the 2^nd opposite party contended that admittedly, the complainant entered into a Tripartite Agreement.   Accordingly, the complainant has paid the entire amount is proved from the Memo filed by the 2^nd opposite party which reads as follows:

“We do hereby confirm that the Loan A/c No.354583052 pertaining to Mr. Parthibhan Sundaram has been closed fully.  Hence the Hon’ble Consumer Disputes Redressal Forum can be informed accordingly”.

10.    The contention of the 1^st opposite party is that the complainant offered to purchase an apartment in the 7^th Floor of Block G in “Mantri Synergy 1” and signed an application for allotment and paid the Earnest Money Deposit  calculated at the rate of 10% on the total cost.  On cancellation, there shall be a deduction of Rs.10,000/- and the remaining EMD shall be refunded.   The complainant availed a housing loan from the 2^nd opposite party and therefore apart from the agreement of sale in respect of the undivided share in the land and the agreement for construction, the complainant, the 1^st opposite party entered into a letter of undertaking/tripartite agreement dated:07.02.2008 with the petitioner and the 2^nd opposite party in respect of the proposed loan.

11.    As per the agreement clause 6 E and F it reads as follows:

“The borrower shall not cancel / alter the allotment / booking / allocation of the flat made to the borrower without obtaining a ‘No Objection Certificate’ from the HDFC in this regard.  In the event, the borrower cancelling his allotment / booking / allocation of the said flat, the developer undertakes to refund the entire amount (loan amounts received from HDFC) with the developer (loan facility together with any interest due) to HDFC directly.  However borrower agrees in case of cancellation he will bare the entire Pre Emi paid by the developer till that date and the cancellation charges”.

12.    Due to the slide in the real estate market the cost of construction was reworked.    In this case, the complainant has regularly paid the EMIs and settled the loan account.  This opposite party paid pre EMI interest.  There was a delay in handing over the possession of the property.    The 1^st opposite party is ready and willing to pay Rs.3 per sq; ft. from December 2009 onwards for the delay in handing over possession.  The compensation claimed by the complainant is exorbitant.   Considering the facts and circumstances of the case this Forum is of the considered view that the 1^st opposite party shall pay a sum of Rs.3/- per sq. ft. for 1600 sq. ft. from 01.12.2009 to 28.02.2011 is Rs.72,000/- towards the delay in handing over the possession and a sum of Rs.10,000/- towards compensation for mental agony and Rs.5,000/- towards cost.

In the result, this complaint is allowed in part.  The 1^st opposite party is directed to pay a sum of Rs.72,000/- (Rupees Seventy two thousand only) towards compensation for the delay in handing over possession and to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant. The complaint against the 2^nd opposite party is dismissed.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 03^rd day of September 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1		Copy of Brochure of the 1st opposite party
Ex.A2	02.12.2007	Copy of application and receipt for margin money
Ex.A3	January 2008	Copy of tripartite agreement between the complainant, 1st opposite party and 2nd opposite party
Ex.A4	02.12.2007	Copy of Agreement of Sale
Ex.A5	02.12.2007	Copy of Agreement of Construction
Ex.A6	15.02.2008	Copy of receipts issued by the 1st opposite party
Ex.A7	14.04.2009	Copy of letter from Mantri Synergy Owners’ Forum to the 1st opposite party
Ex.A8	28.07.2009	Copy of legal notice issued on behalf of complainant and other owners to the 1st opposite party
Ex.A9	19.02.2011	Copy of letter from the 1st opposite party to the complainant
Ex.A10	19.02.2011	Copy of letter from the 1st opposite party to the complainant
Ex.A11	24.03.2011	Copy of letter from the 2nd opposite party to the complainant
Ex.A12	11.05.2011	Copy of letter from the opposite party to the complainant
Ex.A13	27.05.2011	Copy of report prepared by Mr. T.A.S. Rajagopalan
Ex.A14	30.05.2011	Copy of mail from Consumer Association of India to the 1st opposite party
Ex.A15	02.06.2011	Copy of mail from the 1st opposite party to Consumer Association of India

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS: 

Ex.B1	07.03.2011	Copy of completion Certificate issued by the Padur Panchayat
Ex.B2	18.02.2014	Copy of Advocate Commissioner’s Report in C.c. No.190/2011 District Consumer Disputes Redressal Forum, Chennai (North)

 

2^ND OPPOSITE  PARTY SIDE DOCUMENTS: 

 

Ex.B3	22.11.2007	Copy of Tripartite Agreement
Ex.B4	26.09.2016	Statement of Account for the period from 01.04.2007 to 31.03.2008

 

                                                                   

MEMBER –I                                                                      PRESIDENT