Tamil Nadu

StateCommission

CC/63/2019

Gunanithi R, - Complainant(s)

Versus

MR. Kolappan Thanu Achari, - Opp.Party(s)

PARTY IN PERSON

03 Jan 2022

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.63/2019

DATED THIS THE 03^RD DAY OF JANUARY 2022

R. Gunanithi,

S/o. C. Ramakrishnan,

No.632 B, 7^th Cross Street,

Ram Nagar South,

Madipakkam,

Chennai – 600 091.                                                                                 .. Complainant.  

-Versus-

 

Mr. Kolappan Thanu Achari,

Authorised Agent,

Real Value Promoters Pvt. Ltd.,

Ambojini, No.17-1,

Poes Road, 2^nd Street,

Teynampet,

Chennai – 600 018.                                                                               .. Opposite party.

 

Complainant                         : Party in person

Opposite party                      : Ex-parte

 

This complaint having come up for final hearing before us on 03.01.2022  and on hearing the arguments of the complainant in person 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 present complaint was filed against the opposite party/ Builder alleging deficiency in service in not handing over the possession of the flat as per the Sale Agreement entered between them and with a direction to handover the possession with a compensation of Rs.5,00,000/- and Rs.2,95,000/- as damages for the delay in handing over the flat along with the cost of the complaint.   

2.         Brief facts necessitating the filing of complaint:

            It was the case of the complainant that he was in a desire to purchase a home for residential purpose in an area suitable for his family and had booked an apartment with the opposite party at Kazhipattur in Neelkamal Apartments, Flat No.2C in Block 3.  The complainant through cheques on various dates had made payment of Rs.31,26,961/- and also an Agreement for Construction was entered between the parties. On 14.12.2011, the opposite party had executed a Sale Deed in respect of the undivided share in the property in favour of the complainant.  Though the complainant waited for a long time, even after the lapse of the last date for handing over possession as per the terms of Agreement, the opposite party failed to hand over the possession and when approached by the complainant gave evasive reply to him.   Thus, the complaint was filed alleging that the opposite party had acted dishonestly, malafidely and in a manner to defraud and cheat the complainant in not handing over the flat and thus had committed deficiency in service and unfair trade practice with the prayer as mentioned above.

3.         The opposite party though appeared through a Counsel failed to file any written version within the mandatory period prescribed under the Act and hence, was set ex-parte on 01.09.2021 for non-filing of written version.

4.         The complainant filed proof affidavit and submitted documents marked as Ex.A1 to Ex.A4.  

5.         Points for Consideration:-

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

6.         Point No.1:-

            Admitted facts:-

The complainant produced the following documents in proof of his allegations made against the opposite party which is not rebutted by the opposite party by filing any version or documents and hence deemed to be admitted facts by this Commission. 

1. The copy of Sale Deed executed  by the opposite party in favour of the complainant dt.14.12.2011 was marked as Ex.A1; The said Sale Deed shows that it has been executed to convey an extent of 283 sq. ft. UDS in favour of the complainant for a consideration of Rs.7,64,100/- proportionate to built up area of flat purchased by the complainant.
2. The Agreement for Project Promotion and Construction entered between the parties dt. 14.10.2011 was marked as Ex.A2 and accordingly, it is promised by the opposite party that the construction would be completed and possession would be handed over before July 2013;
3. The payment receipts issued by the opposite party for the amounts tendered by the complainant by way of cheques were marked as Ex.A3 as follows:

1. Rs.6,03,150/- vide cheque No.104069 dt.12.12.2011
2. Rs.2,43,692/- vide cheque No.963020 dt.09.04.2012
3. Rs.32,838/- vide cheque No.007575 dt.15.04.2012
4. Rs.3,70,507/- vide cheque No.354540 dt.11.07.2012
5. Rs.1,43,276/- vide cheque No.666875 dt.05.09.2012
6. Rs.1,25,048/- vide cheque No.043525 dt.10.11.2012
7. Rs.1,25,048/- vide cheque No.538907 dt.24.12.2012
8. Rs.1,25,048/- vide cheque No.088784 dt.18.03.2013
9. Rs.1,01,170/- vide cheque No.011454 dt.23.03.2013
10. Rs.1,25,047/- vide cheque No.779402 dt.28.05.2013
11. Rs.1,25,048/- vide cheque No.011458 dt.07.06.2013
12. Rs.93,786/- vide cheque No.765520 dt.19.07.2013

4. The copy of letter dt. 07.01.2019 sent by the complainant to the opposite party requesting them to handover the possession was marked as Ex.A4;

7.         Heard the Counsel for the complainant and perused the documents submitted on behalf of the complainant.  It is seen from the documents that the complainant had booked a flat with the opposite party and had entered into a Construction Agreement dt14.10.2011 by which the opposite party had promised to handover the possession of the flat before July 2013.  Vide letter dt.07.01.2019 the complainant had stated that he had paid Rs.31,26,961/- to the opposite party towards purchase of the flat but the opposite party failed and neglected to handover the flat though they promised to hand over the same before July 2013.   The opposite party had also issued receipts for the payments made by the complainant marked as Ex.A2.   Thus, we are of the view that the opposite party had admitted the payment of Rs.31,26,961/- towards the total construction cost of the flat allotted to the complainant.   Further the Sale Deed executed for the undivided share of the land shows that an extent of 283 sq. ft. was sold proportionate to the built-up area to be purchased by the complainant.  In such circumstance, the opposite party was bound to handover the possession of the flat as per the terms found in the Construction Agreement i.e. July 2013.   As the same was not handed over till the date of filing of the complaint we are of the view that the opposite party had committed clear deficiency in service in not handing over possession as promised.  Thus  we answer the point No.1 in  favour of the complainant the opposite party had committed deficiency in service and unfair trade practice in illegally retaining the amount received from the complainant and failing to handover the flat as promised to the complainant.

8.         Point No.2:-

As we had held above, that the opposite party has committed deficiency in service the complainant is entitled to the directions as prayed by him.  However considering the facts and circumstances we deem it would be appropriate to award Rs.2,00,000/- as compensation to the complainant for the mental agony suffered by him.   Thus we direct the opposite party to handover the possession of the flat booked by the complainant within 6 weeks from the date of receipt of the copy of this order or in alternative to refund a sum of Rs. 31,26,961/- with 18% interest from the date of complaint till realization.   The complainant on receipt of the entire amount shall reconvey the UDS in favour of the opposite party at the cost of opposite party.  The complainant is at liberty to choose the alternative relief of refund of amount after the expiry of 6 weeks from the date of receipt of order copy on failure of opposite party to handover the possession of the flat.

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

1. The opposite party shall handover the possession of the flat within six weeks from the date of receipt of the copy of this order or the opposite party shall refund a sum of Rs.31,26,961 ( Rupees Thirty one lakh twenty six thousand nine hundred and sixty one only) with 18% interest from the date of complaint till realization (option of t0ihe complainant);
2. Compensation of Rs.2,00,000/- (Rupees Two lakhs only) for the mental agony & hardship;
3. Cost of Rs.10,000/- (Rupees Ten thousand only) towards litigation expenses. 

 

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH            

          MEMBER                                                                                          PRESIDENT

           

List of Documents filled by the Complainant:-                                              

Ex.A1	14.12.2011	Copy of Sale Deed of the undivided share of land
Ex.A2	14.10.2011	Copy of Agreement for project promotion and construction
Ex.A3	19.07.2013	Copy of payment receipt
Ex.A4	07.01.2019	Copy of the letter sent to the opposite party through registered post

 

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH            

          MEMBER                                                                                          PRESIDENT