Tamil Nadu

StateCommission

CC/201/2018

Mr. Gopalan Kumar Iyer, S/o P.N. Gopalan, Perungudi, Chennai-600 096 and another - Complainant(s)

Versus

Mr. A. Sudhir Kumar Surana, S/o Late Sri Amar Chand Surana, Chromepet, Chennai-600 044 and 7 others - Opp.Party(s)

M/s. S.M. Murali Dharan

09 Sep 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                        PRESIDENT

               TMT. S.M.   LATHA  MAHESWARI,                                      MEMBER  

 

C.C.No.201/2018

 THE 9^th DAY OF SEPTEMBER 2021.

 

                                                                           Complaint filed on: 14.10.2018       

                                                                           Orders Pronounced on: 09.09.2021

1.   Mr.Gopalan Kumar Iyer,

      S/o. P.N. Gopalan,

     

2.   Mrs. Bhavani Kumar,

      W/o. Gopalan Kumar Iyer.     

      Both residents of

      Plot No.13, 1^st Floor,

      Rajiv Nagar, 2^nd Cross Sreet,

      Perungudi, Chennai – 600 096.                                                       Complainants

 

                       Vs

1.   Mr. A Sudhir Kumar Surana

      S/o. Late. Sri Amar Chand Surana,

     

2.   Mr.S. Aadrash Kumar Surana,

      S/o. A. Sudhir Kumar Surana,

 

3.   S. Aashish Surana,

      S/o. A .Sudhir Kumar Surana.

 

4.   Mr. S. Kuldeep Surana,

      S/o. A. Sudhir Kumar Surana.   

       All the above are residents of

       No.42,Rajendra Prasad Road,

       Nehru Nagar, Chrompet,

       Chennai – 600 044.  

 

5.   M/s. Rushab Reality,

      Having its Registered Office at

      No.7, Rosy Tower, Ground Floor,

      Nungambakkam, Chennai – 600 004. 

      Represented by its one of its Partners.

      Mr. Kalpesh B. Shah. 

6.   M/s.  Prakash Realty,

      Having its registered office at

      No.1, Valliammal Road,

      Vepery, Chennai – 600 007.

      Represented by its Managing Partner,

      Mr. Hemant Dugar.

 

7.   M/s. KP Reality,

      No.13/1, Habbibullah Road,

      T.  Nagar, Chennai – 17.

      Represented by its Managing Parner,

      Mr. Hemant Dugar.

 

8.   M/s. Amar Prakash Developers Private Limited,

      No.42, Rajendra Prasad Road,

      Chrompet,

      Chennai – 600 044

      Representeds by its

      Managing Partner.                                                     Opposite Parties

 

 

Counsel for the Complainants             :    M/s. S.M. Muralidharan, Advocate.   

Counsel for the Opposite Parties 1 to 8:    Set Ex-parte.  

 

               This complaint is coming before us for final hearing on 09.09.2021 and on hearing the arguments of the complainants’ and on perusing the material records, this Commission made the following;-

ORDER

HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT. (Open Court).   

 

.           This complaint has been filed by the complainants under section 17,  r/w section  12 of the Consumer Protection Act, 1986 against the opposite parties 1 to 8 for a direction to pay a sum of Rs.23,82,000/-towards interest on Rs.49,62,466/- from October 2016 for 24 months at the rate 2% per month and also to pay a sum of Rs.20,00,000/- as compensation for mental agony suffered by the complainant due to the deficiency in service committed by the opposite parties.    

1.    The facts which necessitated the complainants to make a claim is as follows;- The complainants approached the opposite parties for buying an apartment in one of their projects and it was suggested by the opposite parties to buy a flat in  their project “Temple Waves” which was at the initial stage of construction.  After seeing the model, drainages and other literature were shown to complainants by the opposite parties, the complainants booked an apartment bearing No.B.706, in the project promoted by the opposite party in the name and style of “Temple Waves” at Kundrathur on 23.07.2015 on payment of Rs.1,00,000/- as booking advance by cheque and another sum of Rs.3,80,000/- by way of post dated cheque both were promptly honoured. It was agreed by both sides that a total sale consideration payable for the flat would be Rs.49,50,911/- inclusive of taxes and the remaining balance sale consideration of Rs.44,12,596/- to be paid by the complainants in stage-wise. The complainants had the money to pay the balance amount of sale consideration by way of Fixed Deposit thereby the complainants were ready to pay the balance amount as and when demanded by the opposite parties.  The 8^th opposite party, power agent of the opposite parties 1 to 7 had promised to deliver the flat by the end of September 2015 but no construction agreement was signed at that point of time. The complainants took an apartment at “Royal Castle “which is another project of the opposite parties, on rent just to see the development of the project of “Temple Waves”.  When they stayed for three months, it was found that there was no progress in the project.  Hence they sought for refund of the amount paid by them. But, the opposite parties persuaded the complainant to purchase the apartment and hence the complainant agreed to purchase the apartment bearing D.701, 7^th Floor, Block D in the project named “Temple Waves” at Kundrathur.  The opposite parties had agreed to convey 363 sq.ft undivided share of land and also agreed to construct the above said flat measuring 926 sq.ft. super built-up area along with private terrace of 496 sq.ft. and other amenities for a total consideration of Rs.49,62,466/- plus taxes.  An agreement of project Promotion and Construction dated 07.06.2006 was entered into between the opposite parties 1 to 7 represented by the 8^th opposite party as their power of attorney and the complainants which was registered as Document No.12344/2016 in 12.08.2016.  As per clause 4 of the above said agreement the allottees shall make the payment of total price as per the payment set out in Payment Annexure I & II in the agreement.  The opposite parties 1 to 7, through their power of attorney 8^th opposite party executed a sale deed 12.08.2016 conveying 363 sqft of undivided share of land in the project area. The complainants had paid the entire sale consideration for the Undivided share of land including the expenses as and when demanded by the opposite parties without any delay, in fact, they had made payments of Rs.20,00,000/- well in advance before the aforesaid agreement of Project Promotion and Construction and thus the complainants have made all payments before 01.09.2016 without any delay and were waiting for handing over the possession of their flat as promised.  The opposite parties have not completed the construction of the project even after receipt of the entire sale consideration and cost of construction from the complainants. While so, the complainants were invited for a function held on 11.10.2016 for handing over the possession of their apartment and that though a function was held they were informed that their apartment was not ready.  In spite of several emails and personal visits made to the office of the power Agent of the opposite parties, the opposite parties have not handed over the possession of the flat.  In the meanwhile, the 8^th opposite party sent a communication to the complainants demanding a sum of Rs.7,65,901/- towards delayed payment charges. The opposite parties claimed that the complainants are liable to pay a sum of Rs.44,22,947/- within 30 days from the date of payment of booking advance of Rs.5,39,519/-. The complainants paid a sum of Rs.5,39,519/- towards booking advance on 01.12.2015 and the balance amount of Rs.,44,22,947/- was paid on 17.08.2016 and there was a delay of 261 days’ in making the balance of 90% payment and hence according to the opposite parties the complainants are liable to pay a sum of Rs.7,65,901/- towards delayed payment charges which is not correct since there was no delay in payment. As per the terms and conditions of the Agreement of Project Promotion and Construction, payments have to be made as and when demanded by the 8^th opposite party.  The opposite parties sent two communications dated 08.01.2018 and 03.02.2018 to the complainants regarding invocation of Arbitration Clause viz., clause 71 of the Agreement of Project Promotion and Construction.  The complainants sent a reply dated 22.02.2018 to the opposite parties calling upon them to produce the documents to prove that 90% of the payment has to be made within 30 days from the date of payment of booking advance of 10%.  The complainants requested the opposite parties to hand over the possession of the Flat No.D-701 at “Temple Waves” in the 7^th Floor, Block D at Kundratrhur immediately without insisting any further payments. When the Agreement of Project Promotion and Construction itself was made in June 2016 there is no question of making payment within 30 days from 01.12.2015 as claimed by the 8^th opposite party. The opposite parties have neither communicated to the complainants about the completion of construction nor had they handed over the possession of the flat till date after receipt of the entire sale consideration. The claim of charges for delayed payment by the opposite parties after receiving the entire sale consideration is not correct. The complainants filed an Application No.2788 of 2018  before the High Court under section 9 of the Arbitration and Conciliation Act, 1996 claiming direction to the opposite parties to hand over the possession of the Flat bearing No.D-701, 7^th Floor, Block D, Phase I measuring 926 square feet of super built up areas and private terrace measuring 496 sqft in the residential project “Temple Waves” at Kundrathur, as described in the Schedule C of the said Agreement of the Project Promotion and Construction, dated 07.06.2016.  The acts of the opposite parties in collecting the entire sale consideration from them and not handing over the possession of the flat till date is gross deficiency in service on their part and the same has caused mental agony, hardship and huge financial loss to the complainants.  Hence, the complainants have filed this complaint claiming the reliefs as stated supra.    

2.     Even though notices were served on the opposite parties 1 to 8, they had not appeared before this Commission and therefore the opposite parties 1 to 8 were set ex-parte. 

3.         To substantiate their case, the complainants have filed their proof affidavit and marked Exhibits A1 to A19 on their side.

4.      Heard the submissions made by the counsel for the complainants and perused the materials available on record.  On perusal of records, we find that the complainants and the opposite parties have agreed for purchase of undivided share of land of 363 sqft and construction of flat measuring 926 sqft super built up area along with private terrace area of 496 sqft and other amenities as per the Agreement of the Project Promotion and Construction dated, 07.06.2016. The complainants paid booking advance amount of Rs.5,39,519/- on 01.12.2015 to the opposite parties. Subsequently, the complainant paid the balance amount of Rs.44,22,947/- on 17.08.2016 and thus the complainants have paid a total sum of Rs.49,62,466/- to the opposite parties as per the said agreement vide Exhibits A1 to A9.  Though the complainants have paid the said amount, the opposite parties have not handed over the flat as agreed claiming delayed payment charges of Rs.7,65,901/- from the complainants.  The claim of the opposite parties is that the complainants have to pay the balance amount of Rs.44,22,947/- within 30 days from the date of payment of booking of advance amount of Rs.5,39,519/- on 01.12.2015.  In our view, this claim of the opposite parties is not sustainable since as on date of advance booking amount no agreement was entered into between the parties regarding the construction of flat and the Agreement of the Project Promotion and Construction was made only on 07.06.2016 and thereafter only the terms and conditions had come into force. Hence, the claim of delayed payment charges by opposite parties is not sustainable. In our view, even after receipt of total sum of Rs.49,62,466/- towards cost of flat,  the opposite parties did not hand over the possession of the flat to the complainants as agreed and as a result of which the complainants suffered mental agony, hardship and also incurred financial loss for which the complainants are entitled to claim compensation. However, we are of the opinion that a sum of Rs.20,00,000/- sought for by the complainants as compensation for mental agony is on the higher side.  Hence, we are of the view that a sum of Rs.2,00,000/- could be awarded as compensation for mental agony which would meet the ends of justice.  Though the counsel for the complainant sought for refund of Rs.23,82,000/- towards interest on Rs.49,62,466/- for  24 months at the rate of 2% per month, we are of the opinion that the said prayer cannot be granted especially for the reasons that the complainants have not asked for either delivery of the flat or refund of the amount paid by them towards cost of the flat.  Hence, we are constrained to modify the prayer and grant relief as follows;  To direct the opposite parties either to hand over the flat as agreed or refund the amount of consideration paid by the complainants towards the flat with interest.   Accordingly, we direct the opposite parties to hand over the flat as agreed within 4 weeks from the date of receipt of this order failing which refund a sum of Rs.49,62,466/- total consideration paid by the complainants towards the flat with interest at the rate of 2% per month from the date of agreement till the date of payment, besides compensation of Rs.2,00,000/- for mental agony suffered by the complainants with costs of Rs.10,000/-. Therefore, the complaint is allowed accordingly.           

5.          In the result, the complaint is allowed in part and the opposite parties 1 to 8 are directed jointly and severally to hand over the flat as agreed  within 4 weeks from the date of receipt of copy of this order.  In the event of failure, the opposite parties are directed to refund a sum of Rs.49,62,466/-, the total consideration paid by the complainants with interest at the rate of 2% per month from the date of agreement till the date of payment,  besides a sum of Rs.2,00,000/- as compensation for deficiency in service committed by the opposite parties as well as mental agony suffered by the complainants with costs of Rs.10,000/-.

 

 

 

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                              PRESIDENT. 

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANTS

 

Ex   A1   23.07.2015    Receipt issued by the opposite parties

Ex   A2   23.07.2015    Receipt issued by the opposite parties

Ex   A3   24.11.2015    Receipt issued by the opposite parties

Ex   A4   19.03.2016    Receipt issued by the opposite parties

Ex   A5   07.06.2016    Agreement of Project Promotion & Construction

Ex   A6   27.06.2016    Receipt issued by the opposite parties

Ex   A7   27.06.2016    Receipt issued by the opposite parties

Ex   A8   12.08.2016    Sale Deed executed in favour of the complainants

Ex   A9   12.08.2016    Receipt issued by the opposite parties

Ex  A10  12.08.2016    Receipt issued by the opposite parties

Ex  A11  20.08.2016    Proof of payment made by the complainants

Ex  A12  01.09.2016    Receipt issued by the opposite parties

Ex  A13  15.03.2017    Email sent by the opposite parties’ agent to the complainants

Ex  A14  08.01.2018    Letter from the opposite parties’ agent to the complainants  

Ex  A15  03.02.2018    Letter from the opposite parties’ agent to the complainants

Ex  A16  22.02.2018    Reply notice sent by the complainant’s counsel

Ex  A17  26.02.2018    Postal acknowledgement card

Ex  A18      .03.2018    Application in A.No.2788 of 2018

Ex  A19   11.10.2016   Handing Over  Ceremony invitation of the opposite parties 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES 1 to 3

 

NIL

 

 

 

 

 

 

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                              PRESIDENT. 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Sep/2021