Tamil Nadu

South Chennai

251/2011

Leena Rayan Miranda - Complainant(s)

Versus

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

M/s.N.L.Rajah

03 Sep 2018

ORDER

                                                                        Date of Filing  : 29.08.2011

                                                                          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.251/2011

DATED THIS MONDAY THE 03^RD DAY OF SEPTEMBER 2018

                                 

1. Leena Rayan Miranda,

W/o. Mr. CDR Vivek Miranda,

 

2. CDR Vivek Miranda,

S/o. Mr. Genetius Miranda,

Flat 603-A, 6^th Floor,

Eden III, Hiranandani Gardens,

Powai,

Mumbai – 400 076.

Rep. by their Power Agent R. Kumar,

No.8, 4^th Street,

Venkateswara Nagar,

Adyar,

Chennai – 600 020.                                                      .. Complainants.                                            

 

            ..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. ICICI Home Finance Company Limited,

Rep. by its Manager,

A-78, First Floor,

3^rd Avenue, Anna Nagar,

Chennai – 600 040,

 

3. ICICI Home Finance Company Limited,

Represented by its Director,

First Floor, ICICI Bank Towers,

No.93, Santhome High Road,

Chennai – 600 028.                                             ..  Opposite parties.

          

Counsel for complainants                 :  M/s. M. L. Rajah & others

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

Counsel for opposite parties 2 & 3 :  M/s. S. Namasivayam & others

                                                            another

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 for Equated Monthly Installments and not raising any further demands for 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:07.03.2008 between the complainants and the 1^st opposite party and to pay a sum of Rs.2,00,000/- towards the delay in completion of the project in violation of the terms of the agreement dated:07.03.2008 and to pay a sum of Rs.1,00,000/- towards compensation for mental agony and hardship with cost to the complainants.

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

The complainants submit that on seeing the brochure of the 1^st opposite party, the complainants were 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:07.03.2008 with the complainants.  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 31.05.2008.   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 01.04.2011, the complainants received an email 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 they 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 complainants 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 6^th 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 dated:31.05.2008 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 complainants is exorbitant.  Therefore, the complaint is liable to be  dismissed.

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

The 2^nd & 3^rd opposite parties specifically deny each and every allegations made in the complaint and puts the complainants to strict proof of the same.   The 2^nd & 3^rd opposite parties state that the opposite parties are banking companies with enormous reputation.  It provides loan for different purposes and credit cards for interested person.  Its policy of lending, prescription of interest, penal interest, surcharge and all other charges are determined on the basis of the guidelines issued by the Reserve Bank of India.   All its transactions are transparent and are submitted to scrutiny by anyone including the complainants.  It is customer friendly and takes special care to ensure that the customers are given utmost care.   The complainants have entered into an agreement of sale and construction agreement with the 1^st opposite party for the purchase of Flat No.H 603 at Mantri Synergy, Old Mahabalipuram Road next to Hindustan Engineering College, Padur Village, Kancheepuram District.

4.     Further the 2^nd & 3^rd opposite parties state that an amount of Rs.53,00,000/- was sanctioned, out of which, Rs.52,50,000/- was disbursed by the 2^nd & 3^rd opposite parties to the complainants by cheque No.004820 dated:31.05.2008 drawn on ICICI Bank Ltd. Nariman point.  The transaction between the complainants, 2^nd & 3^rd opposite parties is only a pure loan transaction where admittedly the complainants have borrowed a huge sum of Rs.52,50,000/- subject to terms and conditions of lending which they are bound to repay as agreed to 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.   There is neither deficiency in service nor negligence in service against the 2^nd & 3^rd opposite parties is seeking the EMIS towards the admitted outstanding.  Hence, the complaint is liable to be dismissed.

5.    To prove the averments in the complaint, the complainants has filed proof affidavit as their evidence and documents Ex.A1 to Ex.A20 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 & 3^rd opposite parties filed and documents Ex.B3 & Ex.B4 are filed and marked on the side of the 2^nd & 3^rd opposite parties.

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 complainants are 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 complainants are 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 complainants contended that on seeing the brochure of the 1^st opposite party Ex.A1, the complainants were 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 dated:07.03.2008 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 31.05.2008 as per Ex.A7.   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 01.04.2011, the complainants received a letter from the opposite party informing that the flat booked by the complainants 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 complainants were 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 complainants contended 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.   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 complainants 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 complainants has not established the allegation of deficiency in construction.   The only contentions remains back is the compensation for the delay in handing over the possession of the flat.  The 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 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 8^th Floor of Block E 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 dated:31.05.2008 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 complainants 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 complainants 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 1400 sq. ft. from 01.12.2009 to 28.02.2011 is Rs.63000/- 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 & 3^rd opposite parties 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

COMPLAINANTS SIDE DOCUMENTS:

Ex.A1		Copy of Brochure of the 1st opposite party
Ex.A2	10.10.2007	Copy of receipt issued by the 1st opposite party
Ex.A3	07.03.2008	Copy of Agreement of Sale
Ex.A4	07.03.2008	Copy of Agreement of Construction
Ex.A5	29.05.2008	Copy of letter of undertaking by the 1st opposite party to the 2nd opposite party
Ex.A6	31.05.2008	Copy of receipt issued by the 1st opposite party
Ex.A7	31.05.2008	Copy of letter of Undertaking/Tripartite Agreement between the complainants, 1st opposite party and 2nd opposite party
Ex.A8	14.04.2009	Copy of letter from Mantri Synergy Owners’ Forum to the 1st opposite party
Ex.A9	28.07.2009	Copy of legal notice issued on behalf of complainants and other owners to the 1st opposite party
Ex.A10	01.04.2011	Copy of e-mail from the 1st opposite party to the 1st complainant
Ex.A11	04.04.2011	Copy of reply mail from the complainants to the 2nd opposite party
Ex.A12	05.04.2011	Copy of email from the 1st complainant to the 2nd opposite party
Ex.A13	22.04.2011	Coy of mail from the 1st complainant to the 2nd opposite party
Ex.A14	18.05.2011	Copy of mail from the 1st opposite party to the complainants
Ex.A15	21.05.2011	Copy of reply mail from the complainants to 1st opposite party
Ex.A16	26.05.2011	Copy of mail from the complainants to 2nd opposite party
Ex.A17	27.05.2011	Copy of report prepared by Mr. T.A.S. Rajagopalan
Ex.A18	30.05.2011	Copy of mail from Consumer Association of India to the 1st opposite party
Ex.A19	02.06.2011	Copy of mail from the 1st opposite party to Consumer Association of India
Ex.A20	21.06.2011	Copy of mail from Consumer Association of India to the 2nd opposite party

 

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 & 3^RD OPPOSITE  PARTIES SIDE DOCUMENTS: 

 

Ex.B3	17.01.2011	Copy of Power of Attorney
Ex.B4	05.06.2012	Statement of Accounts for the period from 30.05.2008 to 05.06.2012

 

                                                                   

MEMBER –I                                                                      PRESIDENT