Tamil Nadu

South Chennai

CC/172/2021

Mr. S. Sankaran - Complainant(s)

Versus

MR. Gireesh Kumar Bhandari, Rep by its Director, M/s. Serene Senior Living Pvt., Ltd., and 2 others - Opp.Party(s)

M/s. Suresh Associates

06 Mar 2023

ORDER

                                                                Date of Complaint Filed : 13.11.2021

                                                                Date of Reservation      : 21.02.2023

                                                                Date of Order               : 06.03.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                 :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,          : MEMBER II

 

CONSUMER COMPLAINT No. 172/2021

MONDAY, THE 6^th DAY OF MARCH 2023

Mr. S. Sankaran,

S/o. Late Mr. A. Subramaniam,

No. 19, V. Gangadhara Mudali street,

Nungambakkam,

Chennai - 600 034.                                                                                                                   ... Complainant                

..Vs..

1.Mr. Gireesh Kumar Bhandari,

   Director,

   Represented by M/s. Serene Senior Living Private Limited,

   Old No. 12, New No. 23,

   Bazullah Road, T. Nagar, Chennai - 600 017.

 

2.M/s. Serene Senior Living Private Limited,

   Represented by its Authorised Signatory,

   Having its registered office at,

   No. 31, Sayee, T2, Second Floor,

   Rajamannar Street,

   T. Nagar, Chennai - 600 017.

 

  Also at,

  No. 8, Rakavi Square,

  Rahuman Sait Colony,

  Sowripalayam Road,

  Ramanathapuram,

  Coimbatore - 641 045.

 

  Also at,

  Old No. 484-485,

  New No. 28-30,

  Ground Floor, Pantheon Plaza,

 

 Pantheon Road,

 Egmore, Chennai - 600 008.

 

 

3 M/s. Serene Senior Care Private Limited,

   Represented by its Authorised Signatory,

   Having its registered office at No. 31,

   Sayee, T2, Second Floor,

   Rajamannar Street,

   T. Nagar,

   Chennai - 600 017.                                                                                                                         ...  Opposite Parties

 

******

Counsel for the Complainant                    : M/s. Suresh Associates

Counsel for the 1^st & 2^nd Opposite Parties   : M/s. S. Senthil

Counsel for the 3^rd Opposite Party             : Exparte

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant, we delivered the following:

 

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Parties to refund the excess amount of Rs.2,93,181/- and to pay a sum of Rs.2,45,000/- as compensation at the rate of Rs.5,000/- per month = 49 X Rs.5,000/- as per the Memorandum of Understanding dated 04.05.2015 and to pay  a sum of Rs.25,00,000/- towards the mental agony and torture due to the deficiency in service on the part of the Opposite Parties along with cost of Rs.25,000/-.

2.     The averments of Complaint in brief are as follows:-

The Complainant is a senior citizen living in Chennai and was trying find out a suitable place when the Opposite Parties approached and marketed their idea to the Complainant, based on their representation the Complainant entered an Memorandum of Understanding dated 25.05.2015 with Opposite Parties for purchase of a living space to the extent of 2234 Sq Ft comprised in survey No. 380/2A1(part) consisting of 1065 Sq.Ft of plinth area (site) in their Serene Indus valley project at Coimbatore for a total consideration of Rs.77,60,000/-. The Complainant has made almost made the entire payment in the year 2016 itself on various dates and was waiting for the Opposite Parties to handover the possession of the property. In the month of September 2018, the Opposite Parties demanded another sum of Rs.3,06,774/- which was over and above the actual cost. The Complainant, without noticing that the entire payment was made, has made the above payment on 16-10-2018, hence an extra amount of Rs.2,93,181/-  was paid by the Complainant. This is lying with the Opposite Parties since October 2018. As per the above Memorandum of Understanding the Opposite Parties are supposed to handover the possession of the site on or before February 2017 inclusive of the grace period of 3 months as provided in the agreement. Yet, the Opposite Parties have failed to do so. The Complainant had already issued three notices dated 16.02.2020, 29.08.2020 and 09.11.2020, seeking delivery of the possession of the property along with the execution of sale deed for shop site No.1, admeasuring 2234 Sq.Ft comprised in survey No. 380/2A1(part) consisting of 1065 Sq.Ft of plinth area (site) in their Serene Indus valley project at Coimbatore. The Opposite Parties have handed over the possession only in the month of March 2021 that too after issuing several notices. But as per the Memorandum of Understanding the Opposite Parties are liable to pay a sum of Rs.5,000/- for every month's delay. The Opposite Parties have delayed 49 months in handing over the possession of the property for which an amount Rs 2,45,000/- is to be paid by the Opposite Parties as delay cost. This is as per agreement. The Complainant also submitted that initially the Opposite Parties have mortgaged the entire property with M/s. Easy Access Financial Services limited. Subsequently the Opposite Parties have discharged the same and registered the property in favour of the Complainant and delivered the possession also. The registrar's Encumbrance statement clearly states that that the property has been pledged and was released by the said Easy Access only on 2^nd March 2021. The handing over of the property was delayed since the Opposite Parties have illegally pledged the property after getting the full payment from the Complainant before 3 years earlier, which  clearly shows the act of deficiency in service, of the Opposite Party. Therefore, the Complainant issued a legal notice dated 28.07.2021, Despite of the notice, there was no reply from the Opposite Parties. Hence the complaint.

3.  Written Version filed by the 1^st and 2^nd Opposite Parties in brief is as follows:-

        The Opposite Parties submitted that, they are engaged in the business of promoting, developing and constructing flats for the past more than 12 years across Tamil Nadu. During the course of their business they proposed to form a layout for Villas and construct building and premises thereon for the senior citizens at Coimbatore District. Pursuant to that M/s. Serene Senior Living Private Limited (formerly known as M/s.Covai Property Management Services Private Limited), the 2^nd Opposite Party herein purchased a larger extent of land measuring an extent of 3 Acre 19 cents comprised in various Survey numbers at Perur Chettipalayam Village, Perur Taluk, Coimbatore District vide Sale Deed dated 13.01.2012, registered as Document No. 703 of 2012 before the Joint II Sub-Registration District, Coimbatore. After obtaining necessary approvals from the respective authorities they formed a layout named as 'Serene Indus Valley. It is further, submitted that, as a lawful owner of the afore said property, the 2^nd Opposite Party have vested rights and are fully entitled to mortgage the aforesaid plots in the said layout, hence the same was mortgaged to M/s.Easy Access Financial Services Limited vide Mortgage deed dated 19.03.2003 registered as Document No.1381 of 2003 before Joint II Sub- Registration District, Coimbatore and thus, funds were raised for the development of the said project. The Opposite Parties submitted that during April 2015 the Complainant had approached them with the intent to purchase a Villa in the said layout. Pursuant to same, the Complainant had entered into and signed a Memorandum of Understanding (MOU) dated 25.05.2015 with the 2^nd and 3^rd Opposite Parties, for the purchase of Shop Site No.1 admeasuring 2,234 Sq.ft., in the said layout and to construct ground floor measuring 1,065 Sq.ft., (the "Subject Villa") of plinth area thereon for a total consideration of Rs. 77,60,000/-, which was exclusive of GST. It is submitted that on the same day, 25.05.2015 an Allotment Letter was issued and a Demand Payment Request of Rs.31,05,000/- was issued to the Complainant as per the Payment Schedule of the MOU. It is placed on record that, at the time of entering into the MOU, the Complainant had paid only a sum of Rs. 15,52,000/- vide Cheque No.000070 dated 07.01.2015 drawn on HDFC Bank and that an outstanding amount of Rs. 16,29,196/- was due from the Complainant. At the request of the Complainant additional modifications were made to the construction, thus the cost of the construction proportionately increased based on these requirements. It is submitted that, after including the additional expenses for the modifications and generously offering a discount as requested by the Complainant the total sale consideration of the Subject Villa was Rs.80,53,181/- which included a sum of Rs.3,33,607/- towards GST. The Opposite Parties submitted that, as per the MOU dated 25.05.2015, the Subject Villa was to be handed over to the Complainant on or before February, 2017. The Opposite Parties wishes to throw light on the various hardships and the genuine causes of delay faced by them during the course of construction of the project. It is submitted that delay was owed to the Nationwide demonetization Scheme that was introduced by the Central Government in November, 2016 and the various complications arising from the implementation of GST. Furthermore, the other unforeseen circumstances such as the river sand scarcity issues had only caused additional delay, hardship and a grave setback to the construction. Despite all obstacles faced by them, the construction was completed and the Complainant was requested to inspect the completed subject Villa. The final Demand Payment Letter was sent to the Complainant on 04.09.2018 and the same was paid only on 16.10.2018. The Opposite Parties submitted that from the inception, the Complainant has failed to make the timely payments in accordance with the payment schedules. It is pertinent to mention here that, the Subject Villa was ready for occupation as on September, 2018 and that for the reasons best known to the Complainant, he has failed come forward and take possession of the same. The Opposite Parties submitted that, the No Objection Certificate dated 02.03.2021 was issued by M/s. Easy Access Financial Services Limited. Following this, the 2nd Opposite Party has executed a Sale Deed dated 26.03.2021, registered as Document No.2222 of 2021 before the office of Joint 11 Coimbatore to and in favour of the Complainant. Furthermore, the Complainant had acknowledged the completion certificate dated 26.03.2021 and had further mutually agreed by that there shall be no claim or liabilities pending on either sides and that as on date of signing the completion certificate. It was also mutually agreed that there remained no outstanding dues with regard to the payment for construction of the Subject villa as per the final bill dated 04.09.2018. The Opposite Parties submitted that, the Complainant entered into a Construction Agreement dated 26.03.2021 with this 2^nd Opposite Party wherein clause 4 specifies the period of completion and handing over possession wherein it has been explicitly agreed by the Complainant that the subject villa shall endeavoured to be completed within a period of 18 months with grace period of 3 months from the date of the said Agreement i.e., on or before December 2022. Hence, there is no delay in handing over the premises to the Complainant. It is pertinent to note that despite the completion date has been agreed to be December 2022, the Complainant has prematurely rushed to litigation and has filed the subject complaint in the month of September 2021 itself. Hence prayed to dismiss the complaint.   

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as  Ex.A-1 to Ex.A-17.  The 1^st and 2^nd Opposite Parties submitted Written Version. Proof Affidavit was closed on the side of 1^st and 2^nd Opposite Parties on 20.01.2023. The 3^rd Opposite Party did not appear before this Commission even after sufficient notice and remained absent. Hence 3^rd Opposite Party was set exparte on 14.06.2022.

5.    Points for Consideration:-

1. Whether there is unfair trade practice deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

6.      The Complainant submitted that he had entered in to a Memorandum of understanding dated 25.05.2015 with the Opposite Party for purchase of living space to an extent of 2234 sq.ft in their 'Serene Indus Valley’ Project at Coimbatore for a total Sale Consideration of Rs.77,60,000/-. The Complainant  had paid almost the entire payment in the year 2016. On demand by the Opposite Party the Complainant had paid Rs.3,06,774/- which is over and above the actual cost. As per the above the Opposite Party had to hand over the site to the Complainant on or before February, 2017 but the Opposite Parties had handed over the possession only in the month of March 2021 that too after issuance of notices. The Opposite Parties have illegally Mortgaged the property to M/s Easy Assess Financial Services Ltd and got release of Mortgage only on 02.03.2021 and hence delayed in delivering possession of property. Hence the Complainant claiming the delay cost as per the agreement and the refund the excess amount paid.

7.      The contention of the Opposite Parties is that they had purchased larger extent of land measuring 3 Acre 19 cents at Porur Chettipalayam Vilalge, Coimbatore District registered as Document No.703 of 2012 before the Joint II, Sub Registration District Coimbatore and formed Layout named as “Serene Indus Valley”. Being lawful owner they are entitled to Mortgage and raise funds for the development  of the said project. The Complainant had entered into a Memorandum of understanding dated 25.05.2015 with the Opposite Parties for the purchase of shop site No.1 admeasuring 2,234 sq.ft in the said layout and to Construct ground floor measuring 1065 sq.ft of plinth area for a total Sale Consideration of Rs.77,60,000/- which was exclusive of GST. It was averred during the construction the Opposite Parties had faced various hardship such as nationwide, demonetization, implementation of GST, river sand scarcity. Despite all obstacles faced by them, the Opposite Parties had completed construction. After getting NOC dated 02.03.2021 from M/s Easy Access Financial services Limited, the Opposite Party had executed a Sale Deed dated 26.03.2021, registered as Doc No.2222 of 2021, in the office of Joint II Coimbatore. The Complainant had also entered in to Construction Agreement dated 26.03.2021, which specified a period of 3 months with grace period of 3 months and hence there is no delay in handing over the premises on the Complainant.

8.     The admitted facts are that a sum of Rs.80,53,181/- has been paid by the Complainant as Sale consideration to the Opposite Party for the purchase of land and to put construction thereon. However the dispute arose in payment of extra amount by the Complainant to the Opposite Party than agreed, between the Complainant and Opposite Parties.

9.     As per the Agreement entered between the Complainant and Opposite Parties, and in terms of the latest Construction Agreement and Sale Deed dated 26.03.2021 the total Sale Consideration of Rs.77,60,000/- was inclusive of GST. However the Opposite Party has claimed and appropriated to themselves an excess amount of Rs.2,93,181/- from the Complainant which is to be refunded by the Opposite Party to the Complainant.

10.    In so far as the delay in handing over the premises, the Complainant had entered into Construction Agreement and Sale Deed on 26.03.2021 it was specifically agreed that the Construction and delivery of possession with respect of the property is as per the terms and conditions incorporated in the Construction Agreement dated 26.03.2021, clause 4 of the Construction Agreement dated 26.03.2021 prescribes the period of 18 months with grace period of 3 months from the date of the Agreement, which is on or before December 2022. The Opposite Party has handed over the premises in March 2021. As the subsequent Agreements, and its terms would permit, there is no delay in handing over possession and the relief sought for compensation is not granted.

11.    The order passed by the Hon’ble National Commission on 25.02.2022 in C.C No.2683 of 2017, I Raman Arora Vs. Delco Realty Private Ltd as relied by the Complainant holding that the Complainant is entitled to refund of the principal amount with interest along with compensation for delay in handing over the flat is not applicable to the present case as the flat was handed over in time as per the Construction Agreement dated 26.03.2021 executed by the Complainant with the Opposite Party. Hence, having collected a sum of Rs.80,53,181/- from the Complainant as against the agreed amount Rs.77,60,000/- which amount is inclusive of GST, and thereafter claiming that the excess amount of Rs.2,93,181/- is towards GST when the fact   remains that the agreed total sale consideration of Rs.77,60,000/- is inclusive of GST, the collection of excess amount of Rs.2,93,181/- amounts to unfair trade practice and deficiency of service on the part of the Opposite Parties. Accordingly, Point No.1 is answered.

Point Nos.2 and 3:

12.    As discussed and decided in Point No.1, the Opposite Parties 1 to 3 are jointly and severally liable to refund the excess amount of Rs.2,93,181/- received from the Complainant and to pay a sum of Rs.20,000/- as compensation for the deficiency in service along with a sum Rs.5,000/- towards the cost of the litigation. Accordingly, Point Nos.2 and 3 are answered.

In the result, the complaint is allowed in part. The Opposite Parties  1 to 3 are jointly and severally directed to refund the excess amount of Rs.2,93,181/- (Rupees Two Lakh Ninety Three Thousand One Hundred and Eighty One Only) received from the Complainant and to pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) as compensation for the deficiency in service along with a sum Rs.5,000/- (Rupees Five Thousand Only) towards cost of the litigation to the Complainant, within 8 weeks  from the date of receipt of the order.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 6^th of March 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	21-04-2015	Allotment letter issued by the Opposite Parties
Ex.A2	25-05-2015	Memorandum of Understanding between the Complainant and the Opposite Parties.
Ex.A3	22-05-2015	Allotment letter issued by the Opposite Parties along with the of Advance Acknowledgement Payment.
Ex.A4	22-05-2015	Payment request made by the Opposite Parties and acknowledging the earlier payment.
Ex.A5	07-08-2015	Payment request made by the Opposite Parties and acknowledging the earlier payment.
Ex.A6	21-10-2015	Payment request made by the Opposite Parties and acknowledging the earlier payment
Ex.A7	05-02-2016	Payment request made by the Opposite Parties and acknowledging the earlier payment
Ex.A8	05-02-2016	Payment request made by the Opposite Parties and acknowledging the earlier payment
Ex.A9	12-08-2016	Payment request made by the Opposite Parties and acknowledging the earlier payment
Ex.A10	04-09-2018	Payment request made by the Opposite Parties and acknowledging the earlier payment.
Ex.A11	20-10-2018	The Receipt issued by the Opposite Parties evidencing for excess amount paid.
Ex.A12	29-08-2020	The legal notice issued by the Complainant to the Opposite Parties.
Ex.A13	09.11.2020	The legal notice issued by the Complainant to the Opposite Parties
Ex.A14	26.03.2021	The sale deed executed by the Opposite Parties to and in favour of the Complainant
Ex.A15	26.03.2021	The Construction Agreement executed by the Opposite Parties to and in favour of the Complainant
Ex.A16	28.07.2021	The legal notice issued by the Complainant to the Opposite Parties
Ex.A17	-	Acknowledgement cards and returned covers

 

List of documents filed on the side of the Opposite Parties:-

 

NIL

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT