Tamil Nadu

North Chennai

244/2013

Mrs.Remyza - Complainant(s)

Versus

Mr.Valiyullah,The Builder,M/s.Sameerr Constructions - Opp.Party(s)

Party in Person

06 Dec 2017

ORDER

                                                               Complaint presented on:  26.12.2013

                                                                Order pronounced on:  06.12.2017

 

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

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

WEDNESDAY  THE 06^th  DAY OF DECEMBER 2017

 

C.C.NO.244/2013

 

 

Mr.S.Remyza

No:25/2, Chankrapani St Extn,

Kodambakkam, Chennai – 600 024. 

 

                                                                                               ...  Complainant

 

      ..Vs..

 

Mr. Valiyullah

The Builder,

M/s.Sameer Constructions,

25/B- First floor, Wuthucotton  street, Periyamet,

Chennai – 600 003.                                                           …  Opposite party

 

 

Date of complaint                                 : 27.12.2013

Counsel for Complainant                      : Party in Person

Counsel for Opposite Party                      : M/s. A.Bala Singh Ramanujam,

                                                                    P.Mahenderchand, B.Pannalal Jain

 

 

 

 

O R D E R

 

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

          This complaint is filed by the complainant to direct the opposite party to pay a sum of Rs.4,00,000/- towards compensation for mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant is a owner of a property at Iyyapanthangal. The opposite party builder agreed to develop the property by constructing flats. Accordingly the complainant and opposite party entered into joint venture agreement on 13.03.2011. In the said agreement the opposite party agree to construct five flats as one in the ground floor, two in the first floor and two in the second floor. Both of them agreed to take two flats i.e one in the first floor and another one in the second floor. They further agreed to share 50 :50 in the flat to be constructed in the ground floor. The opposite party agreed to bear the entire cost of construction and also to complete the building within 18 months.

          2. The complainant has paid a sum of Rs.1,35,000/- for  her two flats to obtain electricity connection charges. However the opposite party has not obtained EB connection for her flats and also plumbing and mason works are still pending. Further lift provision was also not made. Therefore, the opposite party has committed deficiency in service and the complainant suffered with mental agony. Hence the complainant filed this complaint to direct the opposite party to pay a sum of Rs.4,00,000/- towards compensation for mental agony with cost of the complaint.

 

3. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          This opposite party admits that he entered a joint venture agreement with the complainant on 13.03.2011 and he agreed to construct five flats in her property  and agreed to take two flats each to the complainant and him and the fifth flat in the ground floor to be shared equally.  The complainant approached the opposite party to purchase the flat No.S-2 for her husband Rajasimja. This opposite party agreed to sell the flat on the sale price of Rs.35,34,000/- accordingly the opposite party executed a sale deed for UDS in favour of the complainant husband vide registered Document No.2567 of 2013 dated 18.03.2013 on the file of Sub-Registered of Saidapet. An agreement for sale of Undivided Share of Flat cum construction agreements was also entered between the complainant and her husband on 14.03.2013.

          4. The complainant requested the opposite party to adjust a sum of Rs.5,00,000/- to be paid to her in respect of the fifth flat in the agreement. The complainant husband totally paid a sum of Rs.12,90,000/- towards sale consideration.  However, the complainant’s husband neglected to pay the remaining sale consideration amount of Rs.22,42,000/- The opposite party borrowed loan with heavy interest and completed the entire  construction. The complainant also has done house warming ceremony as well in the year 2013. The complainant stood as a guarantor for due sale consideration on behalf of her husband. However, they did not pay the balance amount. The allegation that pending plumbing, EB connection and Mason work is absolutely false. There is no agreement to provide lift facility. Hence the opposite party has not committed any deficiency in service and prays to dismiss the complaint with costs.

 

5. 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?

6. POINT NO :1 

          The complainant is the owner of the property at Iyyapanthangal and she wanted to promote and develop the said property and the opposite party  agreed to  construct residential flats  in the said land and the opposite party agreed to put up construction on his own cost for which the complainant and the opposite party entered into Ex.A1 joint venture agreement dated 13.03.2013 to develop the property. As per the said agreement the opposite party agreed to put up construction to a total extent of 4194 sq.ft consisting of 5 residential flats. Out of the constructed area the opposite party/builder (second part) and the complainant (first part) agreed to take 2 flats each. The opposite party has to complete the construction of 2 flats and hand it over to the complainant  within 18 months and further agreed to share equally in the fifth flat.

          7. The complainant alleged the following deficiencies against the opposite party is that

1.the opposite party did not inform the cost selling of the 5^th flat  in the ground floor

2. the opposite party did not obtained EB connection and kept pending plumbing and mason work,

3. till date he had not completed the flats  and handed over the same to the complainant  and

4.lift provision was not made.

The opposite party would contend that the complainant husband purchased S-2 flat from him and for the same he had paid  a part sale consideration of Rs.12,90,000/- and a sum of Rs.5,00,000/- was adjusted to her husband as requested by the complainant in respect of the 5^th flat and after deducting those amounts the complainant husband has to pay a sum of Rs.22,42,000/- towards part sale consideration and therefore he had not  committed any deficiency in service and on the other hand the complainant who stood as a guarantor for her husband and who had  committed default in payment.

          8. The complainant paid a sum of Rs.1,35,000/- under Ex.A2 to Ex.A4 for obtaining EB connection for her two flats. The receipts Ex.A2 to Ex.A4 proves that the opposite party acknowledged the said amount for obtaining EB connection to the complainant.  However, nowhere in the written version or any other documents filed by the opposite party to prove that he had obtained EB connection. Therefore having received from her a sum of Rs.1,35,000/- from the complainant to get EB connection and failed to obtain connection establishes that the opposite party has committed deficiency in service in this respect.

          9. With regard to  the plumbing and mason work are still pending , no specific averments  made in the pleading or filed any document to prove that what kind of plumbing and mason work are left pending by the opposite party. Further, there is no provision made in the Joint Venture Agreement to provide lift. Therefore, in such circumstances the complainant had not proved the deficiencies committed by the opposite party in respect of plumbing and mason work and also provision for lift.

          10. The opposite party specifically would contend that the complainant’s husband has not paid balance sale consideration of Rs.22,42,000/- and therefore he had not committed any deficiency in service.  This complainant is the owner of the land and the opposite party entered joint venture agreement with her to construct flat and further agreed to share equally in the constructed flats.  The complainant’s husband separately entered into an agreement to purchase S-2 flats from the opposite party. Such transaction of complainant’s husband has no bearing with the dispute between this complainant and the opposite party in this case. Further, as contended by the opposite party, no document filed by the opposite party to prove that the complainant stood as guarantor to her husband. She only asked to adjust Rs.5,00,000/- for her husband. Beyond that she never stood as guarantor for the balance amount payable by her husband. Therefore in such circumstances the contention of the opposite party that he had not committed any deficiency is rejected.

          11. Therefore, from the forgoing discussions it is clear that the opposite party after receiving Rs.1,35,000/- from the complainant to obtain EB connection and failed to obtain the same for her flats has been proved and hence it is held that the opposite party has committed deficiency in service.

12. POINT NO: 2

          The complainant sought reliefs only compensation for mental agony and litigation expenses. Since the opposite party failed to get EB connection and considering the amount received by him, it would be appropriate to order to pay a sum of Rs.3,00,000/- towards compensation for  deficiency in service and mental agony, 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.3,00,000/- (Rupees three lakhs only)  towards compensation for deficiency in service and mental agony, besides a sum of Rs.5.000/- (Rupees five thousand only) towards litigation expenses. 

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 06^th day of December 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 13.03.2011              Joint Venture Agreement Ex.A2 dated 08.03.2013              Receipt for Rs.25,000/- Ex.A3 dated 09.03.2013              Receipt for Rs.60,000/- Ex.A4 dated 28.02.2013              Receipt for Rs.50,000/- Ex.A5 dated 04.11.2013              Notice Ex.A6 dated 05.11.2013              Speed Post Receipt Ex.A7 dated 13.11.2013             Acknowledgement Card
LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :   Ex.B1 dated  14.02.2013                  Agreement for sale of undivided share of land                                                          cum- construction   Ex.B2 dated 16.03.2013                   Sale deed
MEMBER – I                                                               PRESIDENT