Tamil Nadu

North Chennai

CC/102/2017

B.Priyadarshini Sreevinoth, - Complainant(s)

Versus

Mr.Puithavel M/s.ASR Buildders rep by its Proprietor - Opp.Party(s)

party in person

23 Nov 2022

ORDER

Complaint presented on : 15.05.2017

Date of Disposal                : 23.11.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

CHENNAI(NORTH)

2^nd  Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai-600 003.

 

PRESENT :  THIRU G. VINOBHA, M.A., B.L.,                                       : PRESIDENT

                       TMT. KAVITHA KANNAN, M.E.                         : MEMBER-I

                       THIRU V. RAMAMURTHY, B.A., B.L., PGDLA : MEMBER-II

 

C.C. No. 102/2017

 

DATED THIS DAY WEDNESDAY THE 23^rd  DAY OF NOVEMBER 2022

 

1).B.Priyadarshini Sreevinoth,

2).T.Sreevinoth,

S/o.V.Thiagarajan, (Sr.Citizen)                                                           

both are residing at

Sneham Homes, S7,

No.15 & 16, Thiruvalleswarar Colony,

Devar nagar, Padi,

Chennai-600 050.                                                                    ….Complainants

 

…Vs…

 

1.Mr.Punithavel,

M/s.ASR Builders,

Rep.by its Proprietor,

No.#20, New No #12, Raja Street,

Perambur, Chennai-600 011.

 

2.   Chennai Metropolitan Development Authority,

Rep.by its Chairman,

“Thalamuthu-Natarajan Maaligai”

No.1, Gandhi Irwin Road,

Egmore, Chennai-600 008.

 

3. Axis Bank,

Ms.Priya,

Rep. by its Branch Manager,

Home Loan,(Loan Account No. PHR086501275828)

Axis Bank Ltd, Asset Sales Centre,

Claret Complex, 2^nd floor, Duraisamy Reddy Street,

Tambaram, Chennai-600 045.

 

4. Geeta Mandlik,

Nodal Officer Team,

Axis Bank Ltd.,

NPC1, 5^th floor Gigaplex, Plot No.I.T 5,

MIDC, Airoli Knowledge Park,

Airoli, Navi Mumbai-400 708.

                                                                                      …..Opposite parties.

                                     

 Counsel for Complainant                  : Party-In-Person

 Counsel for opposite party 1               : M/s.R.Gunasekarun and 3 other.  

 Opposite party 2                                  : Givenup by the Commission on 09.08.2017

 Counsel for opposite parties 3 & 4     : M/s.N.Muthukumaran & Hasmukh Jain

 

ORDER

THIRU G. VINOBHA, M.A., B.L.,       : PRESIDENT

          This complaint is filed by the complainant against Opposite parties under section 12 of Consumer protection Act 1986 prays to directing the 1^st opposite party to complete pending works as stated in the prayer (a)  I to X which are major defects and I to XVI which are minor defects and directing the 1^st opposite party to refund the cost against the depreciation to the property in the line to the FAS deviation Rs.1000000/- along with 6% interest and to directing the 1^st opposite party to share the unsold s8 flat for common use of flat owners in person to deviation in common area calculations and to directing the 2^nd opposite party authorities to validate ASR Builders all other ongoing buildings & properties for adherence to RERA rules & regulation and to directing the 3^rd and 4^th opposite parties to have precise valuation on projects and recommend their customers with risk & deviation projects and to pay a sum of Rs.200000/- towards the physical strain and mental agony suffered by the complainant and to pay a sum of Rs.15000/- towards the maintenance cost occurred till date to the complaint and to pay a sum of Rs.10000/- towards the cost of this complaint.

1.THE COMPLAINT IN BRIEF :

          The complainant submitted that the 1^st opposite party is engaged in the business of selling multi-storey apartments, flat to the public for a consideration apart from other activities. The complainant stated that they had purchased a flat no.S7 at Sneham homes 15 & 16 Thiruvalleswarrar colony, Devar Nagar, Padi Chennai-600 050 from the 1^st opposite party builder on February 2015.  Further stated that the reason to rain water leakage in common passage area, the 2^nd complainant Sreevinoth has slipped twice in the common passage area.  The complainants communicated to the 1^st opposite party several times through orally, Email and letters sent on 20.08.2016 about the above said rain water leakages.  As per the agreement & set terms and condition the work completion of apartments has to be completed by March 2016.  But they never replied. Further stated that as far as the completion of work is concerned it has been passed years but the works kept on hold. Due to the halt working conditions the complainant’s resident facing much trouble. The complainant further stated that due to non-hand over of apartment in reasonable time and non-compliance to statutory requirements like occupation certificate, completion certificate, lift operation approval & proper documentations.  The complainant awaiting prompt reply for so long but there is no response from the 1^st opposite party. The complainant further stated that the pending works and other concerns  I to X which are major defects and I to XVI which are minor defects. The complainants stated that the 3^rd opposite party is engaged in the business of funding home loan to salaried class people where as the 3^rd opposite party had not advised complainants on the flaw on property on their own valuation & legal opinion. Hence the complainant prayed in para.12(a)  I to X which are major defects and I to XVI which are minor defects and also sought for direction against the 1^st opposite party to refund the cost against the depreciation Rs.1000000/-along with 6% interest and also direction to share the unsold S8 flat for common use and sought for direction against 2^nd opposite party to validate all on going building of ASR builders to adhere to the RERA rules and regulations and for a direction against 3^rd and 4^th opposite parties to have precise valuation on projects and recommend their customers with risk and deviation in projects and for compensation etc.,

2. WRITTEN VERSION FILED BY  1^st  OPPOSITE PARTY IN BRIEF:

          The 1^st opposite party denies all the allegations in the complaint save those that are specifically hereinafter admitted and the complainant is put to strict proof of such of those allegations that are not so admitted. The 1^st opposite party is a builder running his business for many years. This opposite party stated that there is  rain water leakages in common passage area and as per the agreement and terms and conditions the work completion of apartments has to be completed by march 2016 but they never replied.  All these aspects are false the original possession of the flat was handed over during the month of April 2015 itself. The complainant has availed a bank loan and the entire loan was paid by the bank, the complete completion of the building and flat and on production of the completion certificate. The complainant was enjoying possession from April 2015 but falsely committing the completion of building was not over upto march 2016. The work was completed during the April 2015 as per the terms and conditions. Through one year free maintenance service is the terms in the contract the 1^st opposite party free maintenance service in the building for more than two years without allowing any residence in the apartments to spend any money for any this. Some flats are not booked by the customers at that time and the builder also utilizing some flats for his personal usage for some period. All the certificates has been handed over to the respective occupants residents and common certificates has been handed to the association head in the building. Rain water leakage at terrace floor has been immediately cleared and the 1^st opposite party attached the photo copy. Further stated that there was a multipurpose room measuring 250 spft in the building area which was already handed over to the association head and still that room above said is in occupation and enjoyment of the resident of the apartment. The South elevation of external finishing has been complete done except the pipelines area which could not done due to the technical aspect and also due to the non cooperation of neighbors surrounding the apartments. The service tax was already paid to the government and still the government has refunded any service taxes so far, and if the refunded service tax already shall be repaid to the complainant at any cost. The rain water harvesting system is perfectly working in the apartment and the recent photo picture proves that the rain water harvesting system is very comprehensive. All the handrails in the apartments are perfectly done and made upto the satisfaction of the resident apartment. There is no deviation in the building plan as said by the complainant, Further submitted that there is no materials left in the building premises and there is common toilet and bathroom facilities provided and constructed in the apartment.  The name board and numbering of the flats is fixed in the apartment. The sheets covering  OTS were damaged due to varada cyclone and now it is cleared by 1^st opposite party by his own money. All the provision done by the 1^st opposite party as per the terms and conditions. Hence prayed that dismiss this petition without cost.

3. WRITTEN VERSION FILED BY  3^rd and 4^th  OPPOSITE PARTY IN BRIEF

          The opposite party denies all the allegations in the complaint save those that are specifically hereinafter admitted and the complainant is put to strict proof of such of those allegations that are not so admitted. The 3^rd opposite party is engaged in the business of funding Home Loan to salaried class people, whereas the 3^rd opposite party has not advised the complainants on the flaw on property on their own valuation & legal opinion.  The fact that the complainants approached this opposite party bank for housing loan for purchase of the subject property after making a decision to purchase the property. At the time of applying for loan with this opposite party bank the complainants had already executed sale agreement with the property owner and they have submitted the agreement and satisfied with the title of the property after entered into the sale agreement with the property owner. This opposite party is neither responsible for execution of such sale agreement nor the bank had advised the complainants to purchase the subject.  Further the complainant satisfying with the quality of construction of the builder had entered into the construction agreement. The quality of the construction is to be agitated with builder only. This opposite party no way connected with the construction or the quality of the property.  The 3^rd opposite party and the nodal officer had answered all the queries to the complainants. The 3^rd and 4^th opposite party are no deficiency in service on the part of the opposite party, the complaint may be dismissed.

4. POINTS FOR CONSIDERATION

1. Whether there is any deficiency of service or unfair trade practice on part of the Opposite parties ?
2. Whether the Complainant is entitled to the reliefs as prayed in the complaint.  If so, to what extent?

The Proof Affidavit was filed by the Complainant as his evidence and the documents were marked as Ex. A1 to A6 and Written argument also filed by Complainant. The Opposite parties have filed proof affidavit and documents Ex.B1 to B4 were marked on his side.

5. POINT NO. 1:-

                The  complainant has purchased flat no.S7 at Sneham Homes at Padi from the 1^st opposite party in February 2015 and the construction agreement entered between the complainants and the 1^st opposite party is marked as Ex.A1 dated 23.01.2015 it is found that the complainant has agreed to purchase flat No.S7 and paid Rs.3713000/- towards the cost of construction to the 1^st opposite party who is builder as per Ex.A1 agreement the builder has to complete the construction within three months from the date of agreement. Under Ex.A2 sale deed the complainants 1 and 2 purchased 427 spft of undivided share of land from the 1^st opposite party on 16.02.2015.  It is alleged in  the complaint that there were many defects in the flat and there was rainwater leakage in the common passage area which was communicated with the 1^st opposite party through  letters and mails and it was not rectified and further the completion of apartment has to be finished by March 2016 but has not been completed and further contended that the occupation certificate and completion certificate as per CMDA norms was not given and approval for lift was not obtained from the competent authority and service tax refund with 6% interest as per the High Court Judgment in W.P(C).No.2235/2011 dated 03.06.2016 was not refunded by the 1^st opposite party and there are several deviation in the construction and in para.8 of the complaint the complainant has alleged several defects in the apartment which were not rectified or completed by the 1^st opposite party inspite of several mails and prayed for a direction against the 1^st opposite party and claimed several reliefs in para.12(a)  I to X which are major defects and I to XVI which are minor defects and also sought for direction against the 1^st opposite party to refund the cost against the depreciation Rs.1000000/-along with 6% interest and also direction to share the unsold S8 flat for common use and sought for direction against 2^nd opposite party to validate all on going building of ASR builders to adhere to the RERA rules and regulations and for a direction against 3^rd and 4^th opposite parties to have precise valuation on projects and recommend their customers with risk and deviation in projects and for compensation etc.,

          6.  The 2^nd opposite party was given up at the time of taking on the complaint on file by the commission as unnecessary party on 09.08.2017 and hence the alleged prayer against the 2^nd opposite party is not maintainable.  In the version filed by the 1^st opposite party it was contended that the1st opposite party is a reputed builder having several years experience in the field and further stated that the possession of the flat was handed over to the complainant in April 2015 itself and the complainant has availed bank loan and the entire loan was paid by the bank only on production of completion certificate and hence denied the fact that completion certificate was not obtained for the flat and further stated that as per the terms and conditions of the agreement though one year free maintenance has to be provided by the 1^st opposite party for more than two years the 1^st opposite party maintained the services free of cost since some of the flats were not booked by the customer and some flats were personally used by the 1^st opposite party and further stated all the necessary certificates which were prayed by the complainant were handed over to the respective residents and common certificates were handed over to the head of the association and the rain water leakage at terrace was cleared immediately and there was no damages in the terrace and the south elevation of external finishing has been completed and service tax was already paid to the government which was not refunded and if the government refund it the same will be repaid to the complainant and the rain water harvesting system was also working perfectly and there is common toilet and bathroom facilities provided and handrails in the apartment are perfectly done to the satisfaction of the residents  and there is no deviation in the building plan and further contended the covering OTS sheets which were damaged due to cyclone were replaced by the 1^st opposite party by spending his own money and also filed photo prints to prove that which were marked as Ex.B3 to prove that the above said works were completed and therefore contended there is no unfair trade practice and deficiency in service on their part.

          7.  In the written version of the 3^rd opposite party which were adopted by the 4^th opposite party contended that the prayer against them is not maintainable since the bank duty is only to provide loan after verifying the title of the property and credit worthyness of the complainant which were perfectly done by this opposite parties and further stated that it is only the complainant who had selected the property and builder and after satisfying with the construction he purchased the property and therefore contended that the prayer against the bank is not maintainable.

          8.  The fact that the complainant has purchased undivided share of the land from the 1^st opposite party and also entered into a construction agreement with him under Ex.A1 and A2 is not in dispute though the complainant alleged that there was delay in completing the construction by the 1^st opposite party there is no proof for such incompletion of work except the minutes of meeting among the residents and request letter by the complainant to the builder which is marked as Ex.A3 and A4.  Though the complainant has filed Ex.A6 photographs to support his contention in the complaint that there were many defects in the construction the opposite party 1 has filed Ex.B3 photographs and contended that all the defects were rectified and the necessary certificates required by the complainant were handed over to the resident and to the association head. Under such circumstances the complainant ought to have filed necessary application for inspection of the building by a advocate commissioner with a direction to submit his report to prove the allegations in the complaint which was not done by the complainant. The nature of complaint requires adducing documentary and oral evidence in a lengthy manner in order to decide the dispute involved in the complaint between the parties which cannot be decided by this commission since the procedure involved in a consumer complaint is summary in nature. The points raised in the complaint requires elaborate evidence on both side and the same has to be agitated before competent legal authority.  The complainant has not filed any civil engineers report to prove regarding the defects in the construction of apartment as alleged in the complaint.  Though the complainant has sought for refund of service tax as per the High Court Judgment in W.P(C).No.2235/2011 dated 03.06.2016 the complainant has not filed the same and failed to explain how he is entitled for such refund.  Opposite party 3 and 4 filed Ex.B4 which is home loan agreement between the complainant and bank and as per the terms and conditions of the Ex.B4 the bank has to verify only the credit worthyness of the complainant and the title to the property which was perfectly done by the 3^rd and 4^th opposite parties and the complainant is not entitled for the prayed against the 3^rd and 4^th opposite parties as claimed in the complaint.   The complainant failed to prove the various defects and incomplete work as claimed by him in para.8 of the complaint and complainant failed to prove the unfair trade practice and deficiency in service on the part of the opposite parties. Point No.1 is answered accordingly.

9. Point No.2:

          Based on finding given in Point no.1 since the complainant failed to prove the unfair trade practice and deficiency in service on the part of the opposite parties the complainant is not entitled for any of the reliefs claimed in para.12(a) I to X and I to XVI and also not entitled for the reliefs claimed para 12 (b to h) against the opposite parties. Point No.2 is answered accordingly.

         In the result the Complaint is dismissed.  No costs.

           Dictated by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 23^rd   day of November 2022.

 

MEMBER I                           MEMBER II                     PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT

Ex. A1	23.01.2015	Construction agreement between the complainant and the 1st opposite party.
Ex. A2	16.02.2015	Sale deed executed between the complainants and the 1st opposite party
Ex. A3	10.07.2016 & 17.07.2016	Sneham Homes flat owners MOM 1 & 2
Ex.A4	20.08.2016	Registered request letter sent to the 1st opposite party with acknowledgement.
Ex.A5	28.11.2016	Complainants to Nodal of Axis Bank.
Ex.A6		Photos and documents.

 

LIST OF DOCUMENTS FILED BY THE 1^st  OPPOSITE PARTY

Ex. B1	23.01.2015	Construction agreement.
Ex.B2	13.02.2015	Sale deed in favour of the complainant.
Ex.B3		Photos

 

LIST OF DOCUMENTS FILED BY THE 3^rd and 4^th  OPPOSITE PARTIES:

Ex. B4		Loan agreement and terms and conditions.

 

MEMBER I                           MEMBER II                     PRESIDENT