Tamil Nadu

North Chennai

202/2013

Mr.S.Badri,S/o.Mr.R.Sampath - Complainant(s)

Versus

Mr.Manohar reddy,S/o.Mr.C.K.nandana krishnan,prop:m/s.nandan builders - Opp.Party(s)

M/s.K.s.Gowthaman

29 Dec 2016

ORDER

                                                           Complaint presented on:  15.10.2013

                                                                Order pronounced on:  29.12.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY THE 29^th  DAY OF DECEMBER 2016

 

C.C.NO.202/2013

 

 

Mr.S.Badri,

S/o.Mr.R.Sampath,

No:22/2, Sarvalashmi Flats,

38^th Street, GKM Colony,

Chennai – 600 082.

                                                                             ..... Complainant

 

..Vs..

	Mr. Manohar Reddy, S/o. Mr.C.K.Nandana Krishnan, Prop: M/S. Nandan Builders, No.48, Bazaar Street, Villivakkam, Chennai – 600 049.
	...Opposite Party

Date of complaint                                  : 22.10.2013

Counsel for Complainant                      : M/s. K.S. Gowthaman

Counsel for Opposite Party                      :K.Rajasekaran Associates

 

 

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant approached the Opposite Party/builder and decided to purchase a single bedroom flat on the 1^st floor of the property bearing Flat No: B, at plot No:18A, Teachers Guild Colony 1^st  Street, comprised in Survey No: 193/2A part, 193/4 and 193/3 at No:1, Konnur Village, Perambur, Purasawalkam Taluk, Chennai. The Complainant entered into a sale cum  construction agreement with the Opposite Party on 05.11.2010 and as per covenant 2 (d)  of the said agreement the sale consideration was fixed at Rs.18,40,000/- which includes the cost of the undivided share of land of Rs.4,71,120/-, cost of construction of Rs.12,68,880/- and a further sum of Rs.1,00,000/- towards registration, three phase power supply, metro water, drainage, property tax deposit and all incidental expenses. The Complainant agreed to pay the above amount on various stages as agreed in the agreement clause in it. He has availed housing loan from the State Bank of Travancore for the purchase of the FLAT.  The Complainant paid a sum of Rs.10,000/- to book the FLAT and further paid a total sum of Rs.4,71,185/- on various dates by 27.01.2011 to the Opposite Party. The Opposite Party as a power of attorney holder of the Land Owner namely Mrs. Dharani Bai executed a sale deed in favour of the Complainant for the undivided share of the land.  As per covenant 3 (c) the Opposite Party undertook to complete the construction of the apartment within a period of 11 months from the date of the agreement i.e., on 05.11.2010 or building sanction whichever is later.  The Complainant had paid a sum of Rs.18,40,000/- on various dates. The Complainant had infact paid a sum of   of Rs.18,30,720/-. The Complainant’s  brother Mr.Seshadri has purchased Flat No:C in the same flat and he has paid a sum of Rs.20,720/- in excess and therefore the Opposite Party had agreed to appropriate the balance amount of Rs.9,280/- from the said excess amount.  Because of the negligence and deficiency in service of the Opposite Party, the Complainant is put to severe hardship and he has to pay the EMI for the housing loan and also he is paying monthly rental of Rs.6,000/- for the present house where he dwells with his family. Due to the negligence of the Opposite Party in completing the basic amenities in the said Flat, he is not able to sell the same. The Opposite Party agreed and undertook to hand over the possession of the flat on or before 20.01.2012. Even after the said commitment they failed to even commence the work in the flat. Further, State Bank of Travancore which extended housing finance also issued a notice to the Opposite Party calling upon him to finish the construction and to hand  over possession of the flat. The Complainant had also issued a notice through their advocate dated 24.05.2012 calling upon the Opposite Party to hand over possession of the flat. There was neither any action nor any reply of the Opposite Party for the said letters/notices. The possession of flat should have been handed over to him by October 2011. The Complainant pays an EMI of Rs.13,000/- towards the housing loan from May 2011. Therefore, the Opposite Party is liable to pay the damages by way of a compensation towards the actual financial loss incurred by the Complainant to the tune of Rs.5,14,000/- and also a sum of Rs.3,00,000/- towards mental agony and Rs.1,86,000/- towards unfair trade practice which comes to Rs.10,00,000/-. Therefore the Opposite Party is liable to pay to the Complainant a sum of Rs.1,50,000/- towards loss of rent, Rs.3,64,000/- towards the EMI paid, Rs.3,00,000/- towards mental agony and Rs.1,86,000/- towards the unfair trade practice totaling to a sum of Rs.10,00,000/- towards compensation for the financial loss, hardship and mental agony and hence the Complainant has filed  this Complaint to pass order as claimed above with costs.

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The Complainant herein approached the Opposite Party for purchase of a single bed room Flat No. “B” in the First Floor, Teachers Guild Colony, 1^st Street, Chennai and entered into a sale cum construction Agreement on 05.11.2010 by paying a meager advance of Rs.10,000/-   by way of cash. As per the said Agreement, the payments were received by the Opposite Party stage by stage belatedly and not by payment schedule mentioned in the agreement and a sum of Rs.3,00,000/- remained due. For the said balance due to be paid by the Complainant to the Opposite Party, he offered his property at Arani village and executed sale deed for a consideration of Rs.1,20,000/- with a promise that it would fetch not less than Rs.3 lakhs. But when the said property resold by the Opposite Party to the third party only for the consideration of Rs.1,50,000/-  as the market price never improved in that area. Even after adjusting the said sum of Rs.1,50,000/- towards the balance due by  the Complainant to the Opposite Party, a sum of Rs.1,50,000/- still remained unpaid by the Complainant. The building plan approval was obtained by the Opposite Party only on 02.11.2010 and hence the commencement of construction of the flat starts from the date of approval, i.e on 02.11.2010. The Opposite Party has completed the construction of flat on 05.08.2011 itself i.e within the said period of 11 months. Final completion had come to a standstill due to non receipt of payments of the Allottee, Mr.Munirathinam Reddy who purchased flats in breach of any of terms and conditions of the constructions Agreement. But the Complainant alone did not comply with the payment terms leaving a balance consideration of Rs.1,50,000/- unpaid. But to the shock and surprise of the Opposite Party, the Complainant had deliberately locked the flat portion obstructing the Opposite Party from carrying out the finishing petty works in that portion. The Opposite Party made several requests to the Complainant to hand over the keys but he refused to hand over the same. The flats in the 2^nd floor alone are pending completion only due to nonpayment of the dues by the Allottee of these flats, viz., Mr.Munirathinam Reddy to the Opposite Party. The said Minirathinam Reddy was allotted with Flat No. F in the 2^nd floor with a super built up area of 590 sq.ft. as per sale cum construction agreement dt.09.04.2011 as well as sale deed dated 20.04.2011 vide Doc.No.1661/2011, SRO, Konnur executed in his favour and Flat No. D in the 2^nd floor with a super built up area of 550 sq.ft., as per sale cum construction agreement dated 09.04.2011 as well as sale deed dated 13.05.2011 vide Doc. No.2071/2011, SRO. Konnur executed in his favour. The said V.Minirathinam Reddy did not comply with the terms of the agreements and still he owes a huge sum till date to the Opposite Party. This fact is known to the Complainant. The Opposite Party has always been ready and willing to complete the small pending works at his flat if the keys are handed over to him. The Complainant is deliberately retaining the keys of the flat preventing the Opposite Party to complete the works. The Opposite Party has never been deficient or negligent in its service and had completed the construction well within time except a few small pending works that too was delayed only due to the retention of keys by the Complainant. The relief sought for by the Complainant is not substantiated by any material proof and the Complaint filed by him is vexatious, malafide and cannot be sustained and prays to dismiss the Complaint.

 

 

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

4. POINT:1

          The admitted facts are that the Complainant purchased a single bedroom Flat No: C at plot No:18A, Teachers Guild Colony 1^st  Street,  at first floor, Konnur Village, Perambur, Purasawalkam Taluk,  from the Opposite Party, the Complainant and the  Opposite Party entered EX.A1 dated 05.11.2010 sale cum construction agreement for the said flat and as per the said agreement clause 2 (d) the total cost of the flat fixed at Rs.18,40,000/- including the cost of the land, cost of the construction and other charges and the undivided share 312 Sq.Ft., agreed between them and in pursuance of the  Ex.A1  agreement, the Opposite Party executed Ex.A2 sale deed dated 28.01.2011 in respect of the   undivided share land in favour of the Complainant and Opposite Party  constructed the building as per Ex.A3 building permission dated 02.11.2010 and the Complainant also paid the amounts as per Ex.A4 to Ex.A9 receipts to the Opposite Party.

          5. As per Ex.A1 agreement the total cost of the land and flat fixed at Rs.18,40,000/-. However the Complainant paid a sum of Rs.18,30,720/- which is  evidenced by Ex.A4 to Ex.A9 receipts. Further the Complainant is also due to pay a sum of Rs.9,280/- to Opposite Party towards total cost. However, the Complainant’s  brother Mr.Seshadri has purchased Flat No:C in the same flat and he has paid a sum of Rs.20,720/- in excess and therefore the Opposite Party had agreed to appropriate the balance amount of Rs.9,280/- from the said excess amount. Therefore, the Complainant proved that he has paid the entire agreed amount as per Ex.A1 agreement.

          6. As per clause 3 (c) of Ex.A1 sale cum construction agreement, the Opposite Party/ builder has undertaken to complete the construction within 11 months from the date of agreement or building sanction alleged that the Opposite Party has not completed the flat and delivered as agreed as per the aforesaid clause.  The Opposite Party pleaded in the written version that the building plan approval was obtained on 02.11.2010 and from that date he has completed the construction of the flat on 05.08.2011 i.e within 11 months period.

          7. Admittedly the Opposite Party has not completed the construction within 11 months and delivered to him as per clause 3 (c) of the agreement. However the Opposite Party contended in the written version that he had completed the Complainant’s flat works in all respects except few final touches up in the building and in the final touch up had come to a standstill due to nonpayment of payments of the 2^nd floor, Allottee, Mr.Munirathinam Reddy. The Opposite Party made several requests to the Complainant to hand over the keys to complete the work but he refused to hand over the keys to him. The Complainant alleged that he had sent Ex.A13 legal notice dated 24.05.2012 calling upon the Opposite Party to complete and hand over the possession of the flat but he did not reply. As the Opposite Party himself admitted in the written version that few small pending  works have to be completed and the contention of the Opposite Party that due to other flat owner, at  the 2^nd floor  Mr.Munirathinam Reddy has not paid the amount and he could not complete the project is not at all acceptable. The Complainant purchased a flat at 1^st floor and he had paid the entire money and the Opposite Party should have completed and handed over the possession to the Complainant and failure to hand over after completion on the part of the Opposite Party is nothing but deficiency on his part.

          8. The Complainant paid last payment on 10.08.2011 as per Ex.A8. Even after such payment till filing of the Complaint, the Opposite Party has not completed the building and handover the possession establishes that the Opposite Party breached the Ex.A1 agreement and committed default in delivering the flat and therefore we hold that the Opposite Party has not completed the construction and delivered the possession to the Complainant as per Ex.A1 agreement   proved by the Complainant and therefore we hold that the Opposite Party committed Deficiency in Service.

9. POINT: 2 

           The Opposite Party pleaded in the written version that the Complainant had locked his flat portion and obstructing the Opposite Party to carry out the final petty works in that portion. The Complainant in his proof affidavit stated that the Opposite Party abruptly left the building and since there is no one to guard the site, to protect the flat, he had spent money and put a door to avoid strangers using the place for any illegal activities. The Complainant further stated in his additional proof affidavit that the Opposite Party did not officially hand over possession as can be seen from the facts of the case. The above facts clearly prove that the Complainant took possession of his flat No.B constructed by the Opposite Party.   Further the Complainant contended that he had carried out certain works in his flat. In view of the same the Complainant is already in possession of his flat the relief sought by him in this Complaint, to deliver the possession of the flat to him does not arise and for such relief the Complainant is not entitled in this Complaint.   

10. The Complainant contended that since the Opposite Party has not completed the construction and handed over the possession of the flat he sustained loss of Rs.6,000/- per month towards payment of rent, to a rental house and the Complainant also paying EMI at the rate of Rs.13,000/-per month   from May 2011 onwards. The Complainant claimed towards loss of rent  of Rs.1,50,000/- and towards EMI Rs.3,64,000/-. The Complainant is bound to pay  EMI having taken loan from the financial institution. Therefore the Complainant is not entitled for the EMI’s paid by him. The last payment made on 10.08.2011. The Complainant filed Complaint on October 2013 and therefore during the year 2012 for 8 months and for 9 months in the year 2013 for totaling 17 months the Complainant is entitled for rental income at the rate of Rs.6,000/- per month to a sum of Rs.1,02,000/-. Due to the deficiency in service and failure to deliver the flat by the Opposite Party, the Complainant suffered mental agony is acceptable and in that respect the Complainant can be awarded a compensation of Rs.1,00,000/- besides a sum of Rs.5,000/- towards litigation expenses.

In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs.1,02,000/- (Rupees one lakh and two thousand only) towards rental charges to the Complainant and also pay a sum of Rs.1,00,000/-(Rupees one lakh only) towards compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. In respect of the other reliefs the Complaint is dismissed.

 The above   amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 29^th day of December 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 05.11.2010	Xerox copy of the sale cum construction agreement entered with the Opposite Party
Ex.A2 dated 28.01.2011	Xerox copy of the sale deed executed by the Opposite Party as POA
Ex.A3 dated 02.11.2010	Xerox copy of the Building permission issued by corporation of Chennai
Ex.A4 dated 05.11.2010 &                      05.01.2011	Xerox copy of Receipt issued by Opposite Party
Ex.A5 dated 19.01.2011 &                     22.01.2011	Xerox  copy of the Bankers Cheques & Receipt issued by Opposite Party
Ex.A6 dated 09.02.2011 11.02.2011 & 07.03.2011	Xerox  copy of the Bankers Cheques & Receipt issued by Opposite Party
Ex.A7 dated 10.03.2011 06.04.2011 & 08.04.2011	Xerox  copy of the Bankers Cheques & Receipt issued by Opposite Party
Ex.A8 dated 01.08.2011 &                     10.08.2011	Xerox  copy of the Bankers Cheques & Receipt issued by Opposite Party
Ex.A9 dated 05.01.2012	Xerox  copy of the Letter given by  the Opposite Party
Ex.A10 dated 13.01.2012	Xerox copy of the letter sent by SBT to the Opposite Party
Ex.A11 dated 24.05.2012	Xerox copy of the notice issued by the counsel for the Complainant with postal receipt

Ex.A12 dated 26.08.2015                   Copy of the Notice addressed to the Opposite

                                                      Party along with acknowledgement card

Ex.A13 dated 03.09.2015                    Property tax receipt issued by corporation of

                                                      Chennai

Ex.A14 dated NIL                                 Property tax demand card issued by corporation

                                                       of Chennai

Ex.A15 dated NIL                                 Water and sewerage service charges card issued

                                                        by CMWSSB

Ex.A16 dated 04.07.2015                     Bill issued by TNEB for caution deposit and

                                                       other charges

Ex.A17 dated 13.07.2015                     Bill issued by TNEB for charges

 

Ex.A18 dated 30.06.2015                          Bill issued by TNEB for appln. Charges and

                                                               Electricity meter reading card. (Other

                                                               common documents are filed in my

                                                               brother case bearing No.CC.No.201 of

                                                               2013)

Ex.A19 dated NIL                                      Recent photographs

Ex.A20 dated NIL                                      Rental receipts from the house owner for

                                                               the year 2011 to 2016

Ex.21 dated NIL                               Statement of accounts from SBT regarding

                                                               housing loan

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

Ex.B1 dated 08.04.2011	Sale Cum Construction Agreement between Opposite Party and S.Munirathanam Reddy
Ex.B2 dated 20.04.2011	Sale Deed executed by Dharani Bai rep. by Opposite Party in favour of  S.Munirathinam Reddy Doc.No.1661/2011
Ex.B3 dated 10.05.2011	Sale Cum Construction Agreement between Opposite Party and S.Muninathinam Reddy
Ex.B4 dated 13.05.2011	Sale Deed executed by Dharani Bai rep. by Opposite Party in favour of S.Manirathinam Reddy Doc.No. 2071/2011
Ex.B5 dated  NIL	Photographs of Flat of the Complainant

                                       

 

MEMBER – II                                                               PRESIDENT