Tamil Nadu

StateCommission

CC/12/2017

G.R.Hari - Complainant(s)

Versus

Marg Properties Ltd. Rep. by its Managing Director, - Opp.Party(s)

M/s. Ram and Ram

30 Nov 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

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

                  Tmt. Dr. S.M. LATHA MAHESWARI                            ::      MEMBER

 

C.C. No.12/2017

DATED THIS THE 30^TH DAY OF NOVEMBER 2021

G.R. Hari,

S/o. Mr. G.M. Ramasubramanian,

B-225, 15^th Avenue,

Ashok Nagar,

Chennai – 600 083.                                                                                  .. Complainant.  

 

-Versus-

 

M/s. Marg Properties Limited,

Represented by its Managing Director,

Marg Brindavan Project Section,

“Marg Axis”,

No.4/318, Rajiv Gandhi Salai,

Kottivakkam,

Chennai 600 041.                                                                                   .. Opposite party.

 

Counsel for the complainant                         : M/s. Ram & Ram

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

 

This complaint having come up for final hearing before us on 30.11.2021  and on hearing the arguments of the complainant and upon perusing the material records submitted by the complainant and this Commission made the following:-

ORDER

 Dr.S.M.LATHA MAHESWARI   : MEMBER

1.         The complaint was filed by the complainant section 17 (1) (a) (i) of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the opposite parties along with a prayer to direct the opposite parties to refund the booking amount of Rs.10,09,402/- with interest at the rate of 2% per month, Rs.15,00,000/- towards compensation for mental agony to the complainant with cost of Rs.1,00,000/- towards legal expenses.

2.  Brief facts necessitating the filing of complaint:

            The complainant was allured by the news paper advertisements made by the opposite parties who are reputed builders for the announcement of residential project called “Marg - Brindavan”.  On representations made by the opposite party that the said project would be completed by September 2015 on payment of the entire sale consideration fixed at Rs.26,80,467/- in 11 installments, the complainant booked a flat on payment of Rs.50,000/-  as advance by way of cheque dt.30.12.2010 drawn on IOB, Chennai.  In pursuance of the same the complainant made a total payment of Rs.10,09,402/- to the opposite party towards the purchase of the flat.  An agreement for sale and Construction Agreement was entered between the complainant and the opposite party on 17.05.2013.  However, the construction was never commenced for the reasons best known to the opposite party.  When the complainant approached the opposite party seeking for refund of the amount dissatisfied with the progress of the construction, the opposite party made false promises but never resumed the construction.  Thus, the complainant decided to cancel the proposal for purchase of the apartment and had filed the present complaint for the refund of the amount along with compensation and cost of the complaint alleging deficiency in service on the part of the opposite party. 

3.         The opposite party filed version disputing the maintainability of the complaint before the consumer forum alleging that the claim will not come within the purview of the Consumer Protection Act.  The opposite party still admitted the booking of flat by the complainant but alleged various reasons for the delay in construction such as due to the change in Government Policies, delay in receiving statutory approvals from authorities, global rescission and reduction in booking of flats etc.  They also cited the Force Majeure Clause in the Sale Agreement for the delay in handing over the apartment.  Thus the opposite party submitted that there was no deficiency on their part and alleged that even if the complainant was aggrieved only an arbitration proceedings has to be initiated by him as the agreement had an Arbitration Clause.   Thus, the opposite party  sought for dismissal of the complaint. 

4.         The complainant filed proof affidavit and marked Ex.A1 to Ex.A10.  The opposite party filed proof affidavit but no document is marked on their side.

5.         Points for Consideration:-

1. Whether the complaint is maintainable before this Consumer Commission?
2. Whether there is any deficiency in service and unfair trade practice on the part of the opposite party as alleged by the complainant?
3. If so, what relief the complainant is entitled to?

6.         Point No.1:-

            Admitted facts:-

1. That the complainant in response to the advertisements made by the opposite party had agreed to book a flat in Marg Brindavan Apartment No.1203 in Block ‘E’, 11^th Floor with saleable area of 1,054 sq. ft. for a total consideration of Rs.25,30,726/-
2. That the booking form dt.30.10.2010 was marked as Ex.A1;
3. That the booking advance paid by way of cheque was marked as Ex.A2;
4. The receipt issued by the opposite party dt.15.01.2013 was marked as Ex.A3;
5. The Construction Agreement as well as the Sale Agreement entered between the parties dt.17.05.2013 were marked as Ex.A4 & Ex.A5;
6. That the payment request letter by the opposite parties dt.17.03.2014 was marked as Ex.A6;
7. That the receipts issued by the opposite parties for the payment of amounts made  by the complainant dt.26.4.2014 was marked as Ex.A7 to Ex.A9.

Heard the counsel for complainant. Though the opposite parties had filed version, proof affidavit and written arguments, the counsel for the opposite parties did not adduce any oral arguments. In the written version the opposite parties had raised an issue with regard to the maintainability of the complaint.Thus, we tend to decide the maintainability issue at the first instance.

Deficiency has been defined under section 2 sub-clause (g) of the Consumer Protection Act, 1986 which reads as follows:-

“(2)(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy inthe quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.

 

7.         In the present case, the document submitted by the complainant shows that he had entered into an agreement with opposite party to avail the services of the opposite party in constructing the flat or apartment for valid consideration.  The Apex Court in various decisions had held that housing construction of building activity carried on by Private or statutory body constitutes ‘service’ within the ambit of Section 2(i)(o) of the Act and any deficiency  would make it accountable before competent Consumer Forum. As the opposite party had failed to perform their part of obligation in not completing the construction of flat the complainant had preferred the present complaint seeking refund of the amount paid by them.  Thus we are of the opinion that since the complainant was aggrieved by the deficient services by the opposite party that is failure on the part of the opposite party to construct and handover possession or to refund the amount received by them, the Consumer Commission is having every jurisdiction to decide the complaint.   Thus, point No.1 is answered in favour of the complainant.

8.         Point No.2:-

It is an admitted fact by both the parties that the complainant had paid Rs. 10,09,402/- to the opposite party for the purchase of the apartment out of the total sale consideration of Rs.26,80,467/- on various dates for which, the opposite party had issued valid receipts as evidenced by Ex.A2, Ex.A3, Ex.A7 to Ex.A9.  The opposite party failed to handover the apartment as agreed in the Construction Agreement and the reason cited by them that the complainant was aware that permission from the Government authorities are pending at the time of booking itself was unacceptable.  The  various other reasons cited such as global rescission and reduction in booking of flats and force majeure etc could not be entertained for the reason that they have received more than 40% of the sale consideration but had not even commenced the construction of the project.  This is a clear deficiency in service on the part of the opposite party as the facts and circumstances shows that the opposite party had made false statements with regard to the construction and handing over possession of the apartment to the complainant.   Thus, we hold that the opposite party had committed clear deficiency in service.  Point No.2 is answered in favour of the complainant.

9.         Point No.3:-

With regard to the relief claimed by the complainant it is to be noted that the Builder is under an obligation to deliver the apartment within the stipulated period as agreed by them after receiving money from the buyer.  The buyer / complainant cannot be made to wait indefinitely for the apartment to be delivered to him.  In such circumstances, the claim of the complainant for the refund of the amount paid by him is justified.    The amount paid by the complainant was retained by the opposite party for a considerable period of time. The complainant also suffered mental agony and harassment by the non-delivery of the apartment.   It is a settled principle of law that compensation should commensurate with the loss suffered by the parties.  Thus we order that the amount paid by the complainant to be refunded with 18% interest from the date of complaint till realization and also the opposite party is directed to pay Rs.2,00,000/- towards mental agony and hardship and with cost of Rs.10,000/- towards litigation expenses.

           

 

In the result, the complaint is partly allowed as follows :-

1. The opposite parties shall refund the amount of Rs.10,09,402/- with 18% interest from the date of complaint till realization;
2. Compensation of Rs.2 lakhs for the mental agony & hardship;
3. Cost of Rs.10,000/-   towards litigation expenses.  

 

S.M.LATHA MAHESWARI                                                                             R. SUBBIAH            

          MEMBER                                                                                                 PRESIDENT

                      

List of Documents filled by the Complainant:-   

Ex.A1	30.10.2010	Copy of Booking Form
Ex.A2	30.12.2010	Copy of Cheque for advance
Ex.A3	15.01.2013	Copy of receipt No.1557 by the opposite party
Ex.A4	17.05.2013	Copy of the Construction Agreement
Ex.A5	17.05.2013	Copy of the Sale Agreement
Ex.A6	07.03.2014	Copy of the Payment Request letter
Ex.A7	26.04.2014	Copy of receipt No.2308 by the opposite party
Ex.A8	26.04.2014	Copy of receipt No.2309 by the opposite party
Ex.A9	26.04.2014	Copy of receipt No.2310 by the opposite party
Ex.A10	12.08.1999	Copy of Judgement MANU/SC/0741/1999

 

 

S.M.LATHA MAHESWARI                                                                          R. SUBBIAH             

          MEMBER                                                                                               PRESIDENT