Tamil Nadu

StateCommission

CC/258/2017

Mr.Stanley Jones Gnanaraj, - Complainant(s)

Versus

Marg Properties Limited. - Opp.Party(s)

S.Prabhakar

14 Jun 2023

ORDER

Date of filing : 25.09.2017

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:       Hon’ble THIRU. JUSTICE R. SUBBIAH              :    PRESIDENT

                     THIRU. R VENKATESAPERUMAL                     :   MEMBER

 

C.C. No.258/2017

DATED THE 14^TH DAY OF JUNE 2023

1. Mr. Stanley Jones Gnanaraj,

2. Mrs. Evelyn Latika,

Both are residing at:-

No.6, Sai Arputha Apartments,

No.5, Vijaya Nagar,

1^st Cross Street,

Velachery,

Chennai – 600 042.                                                                                    .. Complainant.

                                                       Versus 

Marg Properties Limited,

Represented by its Chairman & Managing Director,

“Marg Axis”,

No.4/318, Rajiv Gandhi Road,

(Old Mahabalipuram Road),

Kottivakkam,

Chennai – 600 041.                                                                                 .. Opposite party.

 

Counsel for the Complainant                 : M/s. S. Prabhakar

Counsel for the Opposite party             : M/s. B.R. Shankaralingam

 

This complaint having come up for final hearing before us on 31.10.2022  and on hearing the arguments the complainant and upon perusing the material records submitted by both parties and this Commission made the following in the open Court:-

 

ORDER

Thiru. R VENKATESAPERUMAL, MEMBER

 

The present complaint was filed by the complainant against the opposite party for the following reliefs:

1. To pay a sum of Rs.42,14,332/- being the purchase of the flat in the Savithanjali Project;
2. To pay a sum of Rs.10,00,000/- towards compensation for the psychological strain and stress suffered to the complainant.

3.  To pay the cost of Rs.15,000/- to the complainant.

 

2.         The case of the complainant, in brief, is as follows:-

            The case of the complainant is that he booked a two bedroom flat having a super built-up area of 1188 sq. ft.  (inclusive of common area) and plinth area of 991 sq. ft. in the third floor in B Block together with 379 sq. ft. undivided share of land in the project namely “Savithanjali”.  The complainants were issued allotment letter dt. 13.03.2012 and the total sale consideration was fixed at Rs.42,14,332/-.  Pursuant to which, an Agreement for Sale and an Agreement for Development and Construction dt. 13.04.2012 were entered into between the complainants and opposite party.  The opposite party after receiving a sum Rs.3,79,000/- from the complainant had executed a Sale Deed registered as Document No.6726/2012 on the file of Tiruporur, S.R.O. in favour of the complainants.  As per the Agreement, the opposite party has agreed to handover the possession of the apartments by June 2013.  

The complainants have promptly paid all the dues as per the Agreement.  The complainants had paid Rs.7,67,066/- on 13.02.12, Rs.13,311/- on 13.04.2012, Rs.2,16,688/- & Rs.1,80,000/- on 24.04.2012, Rs.7,93,376/- on 31.05.2012, Rs.4,01,674/- on 27.06.2012, Rs.3,99,181/- on 27.08.2012, on 06.07.2012 Rs.3,79,000/- towards sale consideration for undivided share of land and Rs.2,74,855/- towards miscellaneous charges totalling of Rs.42,14,332/- to the opposite party by way of cheques.

Even after receipt of 90% of the construction cost, the opposite party failed to complete the construction and handover possession to the complainants.  Even after repeated requests and demands of the complainants, there was not much progress in the construction works.    Hence, the complainants issued legal  notice dt.23.06.2016 to the opposite party but there was no reply.  Hence, the complainant has filed this complaint before this Commission as stated supra.

 

3.         Resisting the said complaint, the opposite party has filed a version stating that the complainant has booked a flat with the opposite party.  Due to change in the Government policies, delay in issuing statutory approvals by various government authorities including environmental clearance, unforeseen market conditions, global recession/slow down in the economy caused drastic reduction in booking of the flats which consequently had an impact on the development of the project.   Further, there were shortage of labour, non-availability of raw materials used for the construction activities, exorbitant increase in raw materials prices, apart from global recession and inordinate delay by the other prospective Flat buyers like the Complainants for payment of the amount committed by them under the Schedule of Payment agreed which were totally beyond the control of the Opposite Party and further the FORCE MAJEURE Clause in the sale agreement which reads as follows:

 

"The Developer/Vendor shall not be liable if they are unable to complete and deliver possess on of Schedule "C" property to the Purchaser by the reason of "Act of God" or delay or denial in obtaining permission/approvals from Government agencies/authorities or Civil commotion, riots or for reasons beyond the control of the Regulations, Notification of the Government, Municipal Authority, any Court and / or for reasons beyond the control of the Developer/Vendors".  Admittedly, the complainant sought for cancellation of the agreement and refund of the amount as such it will only go to prove that there is no consumer jural relationship between the parties and as such the present proceedings before this Commission for alleged deficiency in service is not at all maintainable in the eye of  law.  Therefore, there is no deficiency in service on the part of the opposite party and hence, this complaint is liable to be dismissed.

 

4.         In order to prove the case, the complainant has filed proof affidavit and 15 documents were marked as Ex.A1 to A15.   On the side of the opposite party proof affidavit is filed but no documents were marked.

 

5.         The points for consideration before this Commission is:-

1. Whether there is any deficiency in service on the part of the opposite party?
2. Whether the complainant is entitled for the relief as prayed for?

 

6.         Point No.1:-

Both parties have filed their respective written arguments.  Heard the submissions of the counsel for complainant and carefully perused the materials available on record.   The complainants submit that they booked a two bedroom flat having a super built-up area of 1188 sq. ft.  (inclusive of common area) and plinth area of 991 sq. ft. in the third floor in B Block together with 379 sq. ft. undivided share of land in the project namely “Savithanjali”.  The complainants were issued allotment letter dt. 13.03.2012 as per Ex.A1 and the total sale consideration was fixed at Rs.42,14,332/-.  Ex.A1 & Ex.A2 are the copies of Agreement for Sale and Agreement for Construction.  Pursuant to which, an Agreement for Sale and an Agreement for Development and Construction dt. 13.04.2012 were entered into between the complainants and opposite party.  The opposite party after receiving Rs.3,79,000/- from the complainant executed a Sale Deed as per Ex.A4 registered as Document No.6726/2012 on the file of Tiruporur, S.R.O. in favour of the complainants.  As per the Agreement, the opposite party has agreed to handover the possession of the apartments by June 2013.  

The complainants have promptly paid all the dues as per the Agreement.  The complainants had paid Rs.7,67,066/- on 13.02.12, Rs.13,311/- on 13.04.2012, Rs.2,16,688/- & Rs.1,80,000/- on 24.04.2012, Rs.7,93,376/- on 31.05.2012, Rs.4,01,674/- on 27.06.2012, Rs.3,99,181/- on 27.08.2012, on 06.07.2012 Rs.3,79,000/- towards Sale Deed for undivided share of land and Rs.2,74,855/- towards miscellaneous charges totally of Rs.42,14,332/- to the opposite party by way of cheques.  Ex.A14 (Series) are the receipts given by the opposite party for the payments made by the complainants.

Even after receipt of 90% of the construction cost, the opposite party failed to complete the construction and handover possession to the complainants.  Even after repeated requests and demands of the complainants, there was not much progress in the construction works.    Hence, the complainants issued legal  notice as per Ex.A15 dt.23.06.2016 to the opposite party but there was no reply.    

 

8.         The opposite party for the delay in construction and handing over of the schedule of properties had cited the reason of ‘force majeur, i.e. due to global recession, labour problem, shortage of basic materials etc., which are beyond their control.  But he has not produced any materials in support of their contentions.  Hence, it is mere bald statements made by way of defence by the opposite party without any proof for the same.   As per Ex.A2 & Ex.A3, Agreements entered between the parties, the opposite party promised to handover the flat to the complainant by June 2013 including grace period of 3 months.  As per Ex.A14, the opposite party had given receipt for the total amount paid by the complainants.    Hence, they are legally obliged to construct and handover the apartment to the complainant as per the schedule found in the agreement.  Therefore, failing to comply the terms as clearly found in the agreement after receipt of amount by citing irrelevant reasons clearly amounts to deficiency in service.  Thus, we hold that the opposite party had committed clear deficiency in service and unfair trade practice.

9.         Point No.2:-

As we have come to the conclusion that the opposite party has committed deficiency in service and unfair trade practice the complainant should be compensated in terms of money.  It is evident as per the Ex14, receipts issued by the opposite party that he has received the amount of Rs.42,14,332/- from the complainants towards the purchase of the flat in the Project namely; Savithanjali. Thus, the complainant is entitled for refund of the sum of Rs.42,14,332/- with interest at the rate of 9% p.a. from the date of complaint till realization.  Cost of Rs.25,000/- is awarded to the complainant.  

In the result, this complaint is allowed in part.  The opposite party is liable to refund the sum of Rs.42,14,332/- (Rupees Forty two lakhs fourteen thousand three hundred and thirty two only) along with interest at the rate of 9% p.a. from the date of complaint (i.e.) 25.09.2017 till realization to the complainants and Cost of Rs.25,000/- (Rupees Twenty five thousand only) towards litigation expenses to the complainant. 

 

 

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

List of documents filed by the complainants:-   

Ex.A1	13.03.2012	Copy of Allotment letter
Ex.A2	13.04.2012	Copy of Agreement for Sale
Ex.A3	13.04.2012	Copy of Agreement for Construction
Ex.A4	06.07.2012	Copy of Sale Deed in favour of the complainant
Ex.A5	01.08.2013	Copy of letter from the opposite party informing about the delay in completion – delivery promised by December 2014
Ex.A6	13.02.2014	Copy of email of the opposite party about sand scarcity
Ex.A7	18.08.2015	Copy of email of the opposite party about the delay in getting environment certificate & stability issues
Ex.A8	12.09.2015	Copy of email of the opposite party informing about Writ Petition and lock and sealing of site by development authorities
Ex.A9	24.11.2015	Copy of email of the opposite party stating delay due to rain
Ex.A10	05.01.2016	Copy of email of the opposite party stating status of the project
Ex.A11	14.04.2016	Copy of email of the opposite party about bringin in XS real builder
Ex.A12	03.05.2016	Copy of email of the opposite party about 50% of the unsold flats
Ex.A13	09.05.2012 to 01.01.2012	Copy of payment request letters of the opposite party
Ex.A14	13.02.2012 to 03.12.2012	Copy of the receipts given by the opposite party for the payments made by the complainants
Ex.A15	20.06.2016	Copy of legal notice issued by the complainant’s Counsel to the opposite party

 

List of documents filed by the opposite party:-  

Nil

 

 

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

 

KIR/TNSCDRC, Chennai/Orders/June 2023