Tamil Nadu

South Chennai

220/2011

Venkatraman P - Complainant(s)

Versus

Mantri Developers Pvt Ltd & Other - Opp.Party(s)

M/s.R.Kumar

03 Sep 2018

ORDER

                                                                        Date of Filing  : 03.08.2011

                                                                          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.220/2011

DATED THIS MONDAY THE 03^RD DAY OF SEPTEMBER 2018

                                 

P. Venkatraman,

S/o. Mr. K. Palani,

Flat GG, Sri Vari Apartments,

No.18, Abdul Razack Street,

Saidapet,

Chennai – 600 015.                                                      .. Complainant.                                           

 

               ..Versus..

 

1. Mantri Developers Pvt. Limited,

Rep. 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 for Rs.52,920/- and not raising any further demands for Equated Monthly Installments 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:16.11.2009 between the complainant and the 1^st opposite party and to pay a sum of Rs.2,70,000/- for the delay in completion of the project in violation of terms of agreement dated:16.11.2009 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” at the rate of Rs.3,390/- per sq. ft. which was gradually increased to Rs.3,740/- over a period of time.    The 1^st opposite party entered into an agreement of sale of undivided share in the land and an agreement of construction dated:16.11.2009 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 on 10.11.2007.   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 17.03.2011, the complainant received an email from the opposite party informing that the flat booked by the complainant have reached the completion stage and is ready for possession.  The complainant further 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 dated:10.11.2007 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 was never a party to any understanding between flat owners and the 1^st opposite party alleged to have taken place on 03.07.2009.  Even if there is any understanding between the 1^st opposite party and complainant, the same is not binding on the 2^nd opposite party.  As per the terms and conditions of the loan agreement dated:26.11.2007, the complainant is bound to pay the pre EMI / EMI without any default.  Having borrowed the money from the 2^nd opposite party the complainant is bound and liable to repay the same whatever be his dispute with the 1^st opposite party.   Undivided share of land was registered by the 1^st opposite party in favour of the complainant on 21.01.2009, vide Doc. No.145/2009.  Having got the undivided share of land registered, the complainant is stopped from making any allegations against the 2^nd opposite party.  The apartment has been completed in all respects as per the version of the 1^st opposite party.  If the complainant is not willing to take possession, the 2^nd opposite party cannot be blamed for that.  In any event, as per the agreement entered into between the parties herein and as per terms of his contract with the 1^st opposite party, the complainant can only claim damages for the delayed delivery, if any, from the 1^st opposite party.  On no account, the Pre EMI/ EMI payable to the 2^nd opposite party can be stopped.  

4.     The 2^nd opposite party further states that having availed the loan disbursed by the 2^nd opposite party, it is the duty of the complainant to discharge the loan.   The duty to repay the loan is always on the complainant (borrower) and the 1^st opposite party had agreed to make the payment on behalf of the complainant based on an arrangement between them.   Thus the 1^st opposite party is merely acting as an agent of the complainant for remitting the interest payable on the loan being the Pre EMI.  The complainant and the 1^st opposite party seem to be at loggerheads on the issues mentioned by the complainant in the complaint and these issues cannot be reasons to put the 2^nd opposite party to loss and hardships.   The loan given to the complainant has already become a Non-Performing Asset (NPA).  Hence as per law, the 2^nd opposite party is entitled to bring the property for sale and recover the balance, if any, from the complainant personally under the SARFAESI Act.  The allegation that the 2^nd opposite party is guilty of deficiency of service is unsustainable in law.   Hence 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.A16 are marked.  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 service by withdrawing the demand for Rs.52,920/- as prayed for?

2. Whether the complainant is entitled to a sum of Rs.2,70,000/- 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” at the rate of Rs.3,390/- per sq. ft. which was gradually increased to Rs.3,740/- over a period of time.  The 1^st opposite party entered into an agreement of sale of undivided share in the land dated:16.11.2009 and an agreement of construction with clear terms as per EX.A3 & Ex.A4.  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 on 10.11.2007 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.A4, the agreement of construction, the possession of flat shall be handed over by December 2009. On 17.03.2011, the complainant received an email 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.A8  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.A4 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.354117299 pertaining to Mr. Venkatraman have been settled fully on 31.03.2018.  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.354117299 pertaining to Mr. Venkatraman have been settled fully on 31.03.2018.  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:10.11.2007 with the petitioner and the 2^nd opposite party in respect of the proposed loan.

11.    As per the Tripartite 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	10.11.2007	Copy of Tripartite agreement between the complainant, 1st opposite party and 2nd opposite party
Ex.A3	16.11.2009	Copy of Agreement of sale
Ex.A4	16.11.2009	Copy of Agreement of construction
Ex.A5	14.04.2009	Copy of letter from Mantri Synergy Owners’ Forum to the 1st opposite party
Ex.A6	28.07.2009	Copy of legal notice issued on behalf of the complainant and other owners to the 1st opposite party
Ex.A7	09.07.2010	Copy of Sale Deed in favour of the complainant
Ex.A8	17.03.2011	Copy of e-mail from the 1st opposite party to the complainant
Ex.A9	21.03.2011	Copy of reply mail from the complainant to the 1st opposite party
Ex.A10	25.03.2011	Copy of email from the 2nd opposite party to the complainant
Ex.A11	25.03.2011	Copy of the mail from the complainant to the 2nd opposite party
Ex.A12	01.04.2011	Copy of the mail from the complainant to the 2nd opposite party
Ex.A13	27.05.2011	Copy of Report prepared by Mr. T.A.S. Rajagopalan
Ex.A14	30.05.2011	Copy of the mail from Consumer Association of India to the 1st opposite party
Ex.A15	30.05.2011	Copy of the mail from Consumer Association of India to the 2nd opposite party
Ex.A16	02.06.2011	Copy of the mail from the 1st opposite party to the 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