Tamil Nadu

South Chennai

250/2011

Bala Arvind & Arvind Viswanat - Complainant(s)

Versus

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

M/s.N.L.Rajah

09 Oct 2018

ORDER

                                                                        Date of Filing  : 29.08.2011

                                                                          Date of Order : 09.10.2018

 

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.250/2011

DATED THIS TUESDAY THE 09^TH DAY OF OCTOBER 2018

                                 

1. Bala Arvind,

W/o. Mr. Arvind Viswanat,

 

2. Arvind Viswanat,

S/o. Mr. Subbaiyer Viswanath,

Both Residing at:-

No.22, SBM Colony,

2^nd Main, Anand Nagar,

Bangalore – 560 024.                                                .. Complainants.                                                          

..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. ICICI Bank Limited,

Rep. by its Director,

First Floor, East Wing,

No.93, Santhome High Road,

Santhome,

Chennai – 600 028.                                                 ..  Opposite parties.

          

Counsel for complainant            :  M/s. N.L. Rajah & others

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

Counsel for 2^nd opposite party  :  M/s. S. Namasivayam & others

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants 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 Installments and not raising any further demands for Interest / Equated Monthly Installments from the complainants till completion of the project Mantri Synergy 1 in all respects inclusive of common amenities as set out in the agreement for construction dated:28.02.2008 between the complainants and the 1^st opposite party and to pay a sum of Rs.2,00,000/- for the delay in completion of the project in violation of terms of agreement dated:28.02.2008 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 complainants submit that he booked a flat in the 1^st opposite party’s project, “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:28.02.2008 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 February 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 18.05.2011, the complainants received an E-mail from the 1^st opposite party informing that the flat booked by the complainants have reached the completion stage and is ready for possession.  The complainants submit that the 1^st opposite party has handed over the possession of the property and the complainants 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 complainants state that the complainants had paid the EMIs regularly without any default.   The complainants state 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 complainants to make the EMI payment.   The act of the opposite parties caused great mental agony.  Therefore, the complainants 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 complainants.   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 complainants to strict proof of the same.  The 1^st opposite party states that the complainants offered to purchase an apartment in the 3^rd Floor of Block H 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 and the 2^nd opposite party entered into a letter of undertaking/tripartite agreement in March 2008.   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 has availed loan for a sum of Rs.56,90,000/- on Loan A/c No.LBCHE00001740651 by the 2^nd opposite party to the complainants by cheque No.309431 dated:30.04.2008 drawn on ICICI Bank Ltd to be repayable by way of equated monthly installments.  The 1^st opposite party had given an undertaking that they shall pay the interest alone for the first 2 years or till the completion of the project.  While the complainants have alleged that the construction is not over the 1^st opposite party invited the complainants to take possession of the completed flat.  As clause 10 of the agreement of sale entered into by the complainants and the 1^st opposite party provide for arbitration the matter may be referred to arbitration where the complainants can seek damages if are aggrieved.   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 their evidence and documents Ex.A1 to Ex.A17 are marked.  Proof affidavit of the 1^st opposite party filed and documents Ex.B1 to Ex.B3 are filed and marked on the side of the 1^st opposite party.  Proof affidavit of the 2^nd opposite party filed and documents Ex.B4 & Ex.B5 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 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 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 dated:28.02.2008 and an agreement of construction with clear terms as per EX.A2 & Ex.A3.  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 February 2008 as per Ex.A4.   The 1^st opposite party agreed to pay pre EMI interest till handing over the possession of the apartment.   According to Ex.A3, the agreement of construction, the possession of flat shall be handed over by December 2009.  On 18.05.2011, the complainants received an e-mail as per Ex.A7 from the 1^st opposite party informing that the flat booked by the complainant have reached the completion stage and is ready for possession proves that 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.A3 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 further 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. 

 9.    The only contentions remains back is compensation for the delay in handing over the possession of the flat.  The opposite party in its written version very clearly admitted that:

“Without prejudice to the above contention this opposite party submits that they are willing to pay a sum of Rs.3/- p.m. per sq ft from December 2009 to March 2011 for the delay in handing over of possession in keeping with Clause 14.5 of the Agreement for Construction”.

10.    The learned Counsel for the 2^nd opposite party contended that admittedly, the complainants entered into a Tripartite Agreement.   The contention of the 1^st opposite party is that the complainants offered to purchase an apartment in the 3^rd Floor of Block H 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 complainants 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 complainants, the 1^st opposite party entered into a letter of undertaking/tripartite agreement during February 2008 with the 2^nd opposite party and the interest due on the loan for the first 2 years or till the date of handing over the possession. 

11.    As per the tripartite agreement clause 6 e and f it reads as follows:

“In the event, the borrower cancels his allotment/booking /allocation of the said flat or in the event of ICICI Ban cancelling his allotment/booking/allocation of the said flat on behalf of the borrower, by virtue of the power of attorney executed by the Borrower in its favour, the builder will refund the amount received from the Borrower and from the loan facility to ICICI Bank.  ICICI Bank shall after deducting all the outstanding amounts refund the surplus, if any, to the borrower.  Any notice/letters /other documents sent by ICICI Bank to the borrower shall be at the address stated in the schedule or, in the event of change, as notified to ICICI Bank in writing.  The same shall be deemed to have been delivered when sent by post, within-48 hours of dispatch by Registered post.  Any change in the address of the Borrower shall be duly notified in writing to ICICI Bank within 7 days of such change”.

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 is admitted by the opposite party.   The 1^st opposite party also admitted in the written version that they are ready and willing to pay Rs.3 per sq; ft. from December 2009 to March 2011 for the delay in handing over possession.    At a later stage, the 1^st opposite party filed a Memo stating that the complainant not only enjoyed the pre EMI interest waive off from March 2008 till February 2011 but also sold the property pending complaint through an assignment agreement to the third parties.  Therefore, having sold the property the complainant is no longer a consumer.  But on a careful perusal of Ex.B3, it is seen that on 24.07.2013 an assignment agreement was entered between the complainant, opposite party and third party.  The Counsel for complainant submitted that since there was a delay in handing over possession, the complainant is entitled for compensation.  The sale of property pending the complaint does not prevent the complainant from claiming compensation for the delay in handing over possession.  Hence the contention of the opposite party that the complainant is not a consumer; is not acceptable. 

13.    The opposite party cited a decision in:

 IV (2015) CPJ 516 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

DCM LTD.

-Versus-

MAJOR R.D. GAIND (HUF)

Held that

“The respondent complainant by independent transaction had transferred his interest in the subject flat to M/s. Atlantic commercial Company Limited and with that transfer, the relationship of consumer and service provider between the parties came to an end.  Therefore, the respondent complainant has no lous standi to maintain the consumer complaint”.

The above cited case is not applicable to the present case because in the said case after having sold the property, the complainant filed the complaint whereas in the present case pending complaint only the complainants sold the property. Therefore, the opposite party has committed deficiency in service by handing over the possession belatedly which is also proved by the opposite party’s documents.  Accordingly, the complainants are entitled for the compensation for the delay in handing over possession from 01.12.2009 to 28.02.2011.  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 1400 sq. ft. from December 2009 to February 2011  Rs.63,000/- 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.63,000/- (Rupees Sixty three 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 complainants. 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 09^th  day of October 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1		Copy of Brochure of the 1st opposite party
Ex.A2	28.02.2008	Copy of Agreement of sale
Ex.A3	28.02.2008	Copy of Agreement of construction
Ex.A4	February 2008	Copy of letter of undertaking/ Tripartite agreement between the complainants, 1st opposite party and 2nd opposite party
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 complainants and other owners to the 1st opposite party
Ex.A7	18.05.2011	Copy of e-mail from the 1st opposite party to the complainants
Ex.A8	19.05.2011	Copy of mail from the 1st complainant to the 1st opposite party
Ex.A9	27.05.2011	Copy of report prepared by Mr. T.A.S. Rajagopalan
Ex.A10	30.05.2011	Copy of mail from the Consumer Association of India to the 1st opposite party
Ex.A11	02.06.2011	Copy of mail from the 1st opposite party to the Consumer Association of India
Ex.A12	20.03.2011	Copy of e-mail from the 1st complainant to the 1st opposite party
Ex.A13	21.06.2011	Copy of e-mail from the 2nd opposite party to the complainants
Ex.A14	21.06.2011	Copy of e-mail from the 1st complainant to the 2nd  opposite party
Ex.A15	21.06.2011	Copy of e-mail from CAI to the 2nd opposite party
Ex.A16		Copy of letter of undertaking by the 1st opposite party in favour of the 2nd opposite party
Ex.A17	February 2011	Copy of letter from the 1st opposite party to customer

 

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)
Ex.B3	24.07.2013	Copy of Sale Deed Doc. No.10269/2013 Sub Registrar Office, Tiruppur

 

2^ND OPPOSITE  PARTY SIDE DOCUMENTS: 

 

Ex.B4	17.01.2011	Copy of Power of Attorney
Ex.B5		Copy of Statement of Accounts of the 2nd complainant for the period from 24.04.2008 to 06.09.2012

 

 

MEMBER –I                                                                      PRESIDENT