Tamil Nadu

South Chennai

CC/695/2004

J.Rajasekaran& others - Complainant(s)

Versus

M/s Ananthi Construction Ltd.,& others - Opp.Party(s)

S.Mohan Das

25 Jan 2017

ORDER

                                                                        Date of Filing :   20.06.2003

                                                                        Date of Order :   25.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II          

C.C.NO.695/2004

WEDNESDAY THIS  25^th DAY OF JANUARY 2017

 

1. Mr. J. Rajasekaran,

S/o. Late Jeremy Parkerm,

Flat No.F-3, “Ananthis Yasodhaa”

46, Second Cross Street,

Ellaiamman Colony,

Vellala Teynampet,

Chennai 600 086.

 

2. Mr.K.M.Joseph,

S/o. Mr.K.E. Mathew,

Flat No.F-4, “Ananthis Yasodhaa”,

46, Second Cross Street,

Ellaiamman Colony,

Vellala Teynampet,

Chennai 600 086.

 

3. Mr.K. Venkatesh Kumar,

S/o. Mr. E.Kuppuswamy,

Flat No.G-3, “Ananthis Yasodhaa”,

46, Second Cross Street,

Ellaiamman Colony,

Vellala Teynampet,

Chennai 600 086.                                          .. Complainant.

 

                           ..Vs..

 

1.  M/s. Ananthi Constructions Ltd.,

Rep. by its Managing Director,

Mr.T.N.T.Rajasekar,

Door No.26/1, Cresent Park Street,

T.Nagar, Chennai 600 017.

 

2. Tmt. Yosotha,

Rep. by Mr. Damodharan,

No.8, Co-operative Colony Road,

Alwarpet,

Chennai 600 018.

 

3. The Commissioner,

Corporation of Chennai,

Ripon Building,

Periyar E.V.R. Salai,

Chennai 600 003.

 

4. The Chennai Metropolitan Development Authority

Rep. by its Chief Executive Officer

Having office in

“Thalamuthu Natarajan” Building,

Gandhi Irwin Salai,

Egmore, Chennai 600 008.                              .. Opposite parties.

 

 

Counsel for the Complainants         : M/s. Mohan Das & another

Counsel for the opposite party-1     : M/s. P.B. Ramanujam & K.Ganesan

Counsel for the opposite party-2     : M/s. Pathy & Pathy & another

Counsel for the opposite party-3     : Exparte.

Counsel for the opposite party-4     : M/s. P. Ramanathan

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.12,75,000/- (each of the complainant a sum of Rs.4,25,000/-) to pay a sum of Rs.30,000/- (each complainant a sum of Rs.10,000/-)  as compensation for mental agony and also to pay  a sum of Rs.10,000/- as litigation expenses to the complainants.

1. The averment of the complaint are brief as follows:

         Responding to an advertisement and offering of the 1^st opposite party the complainants entered into an agreement of sale and constructions of flats from the opposite party-2 being power of attorney agent of the 2^nd opposite party.   The 1^st opposite party did not specify the particulars of undivided share reserved for car parking in the sale deed for undivided share of land inspite of collecting more sale consideration including the value for reserved car parking from the complainants.   At the time of initial payment for the flat, the 1^st opposite party furnished x-copies of the documents of title but did not furnish the copy of the sanctioned building plan inspite of several requests made by the complainants to the 1^st opposite party.  The complainants wanted to make sure about the reserved car parking.   The 1^st opposite party repeatedly assured to the complainants that they need not worry about it.

2.    The 1^st opposite party handed over the flats to the complainants in July 2002 and even at that time, only a schematic drawing was handed over to the complainants wherein an extent of 527 sq. ft.  i.e. North – South 31 ft and East and West 17 ft. which in the normal course would be just quiet sufficient for three covered car parking slots.   However the complainants insisted for a copy of the sanctioned building plan which was not been handed over the 1^st opposite party abruptly left the site and never came back to allot the reserved car parking slots assured to the complainants.  

3.     That a month later, the 2^nd opposite party,  the owner of the vacant land  who had entered in a Joint Venture Agreement with the 1^st opposite party, walked across to the parking area lying on the eastern corner and demarcated an extent equivalent to 45%.  When the complainants questioned the 2^nd opposite party to whom the 1^st opposite party had allotted all the constructed flats of their share on the Western corner, the 2^nd opposite party produced a letter of the 1^st opposite party about the allotment of 45%  of area in the car parking to their share, it was only then that the complainants realized the deficiency in service of the 1^st opposite party rendered to them.

4.     Then the complainants approached the 1^st opposite party one Mr. T.N.T.Raqjasekar met the complainants and initially spoke in a convincing manner to somehow have the  car parking problem solved and handed over the copy of the sanctioned building plant to the complainants.   Furthermore, the complainants further enquired  about the fact that not put up compound wall for all the four sides and also informed about the deep rooted cracks on the walls of the flats  have caused panic to the inmates of a fear of collapse and that these defects also have to be attended to immediately.    At this incidence, the Managing Director of the opposite party unnecessarily and suddenly became highly furious and started shouting at the complainants and left the office abruptly. 

5.     From the copy of the sanctioned building plan furnished to them, it is noted that wide deviations, and violations in the construction have taken place.   Besides these violations, a small portion of about 250 sq. ft or thereabouts has also been constructed in the second floor without a sanctioned building plan.   Therefore the complainant sent a letter dated 1.8.2002 to the 1^st opposite party highlighting the defects and deficiencies and calling upon them to rectify the same.    Though the said letter was received and acknowledged on 8.8.2002, but the 1^st opposite party neither rectified nor replied.  Thereafter, the complainants through the 2^nd opposite party prevailed upon the 1^st opposite party to have the defects and deficiencies rectified.   Even after giving sufficient time, since positive approach came forth from both the first and second opposite parties,  the complainants issued a legal notice dated 1.2.2003 to the 1^st opposite party which was received and acknowledged on 4.2.2003.   Even then, the opposite party never bothered to go over to the premises to rectify the defects nor even sent a reply.    Thereafter, being strictly warned that the matter will be taken up with the 3^rd and 4^th opposite parties if not attended to.     The attitude of the opposite parties 1 & 2 is highly evasive and extremely irresponsible.   Therefore left with no other alternative, they caused a final legal notice on 16.4.2003 to the opposite parties.     After receiving the notice no reply was sent till date, nor the 1^st  to 4^th opposite parties have taken any effective steps to eliminate the defects.   The attitude of the opposite parties clearly amounts for deficiency in service which caused mental agony and annoyance. Hence this complaint.

 

6. Written Version of  1^st opposite party is  in brief as follows:

           This opposite party does not admit any of the allegations contained therein except those that are expressly and specifically admitted herein.   The present complaint  has been filed by the complainant after the expiry of the prescribed of limitation and therefore, the same is liable to be dismissed in limine.   

7.    It is true that the 1^st opposite party offering for sale of deluxe flats with car parking.   But the opposite party did not specify the particulars of undivided share reserved for car parking in the sale deed for undivided share of land in spite of collecting more sale consideration including the value for reserved car parking form the complainants.  As per the procedure and practice in the schedule to the sale deed, the undivided share pertaining to the complainants flat will be mentioned and the car park area will be mentioned only in the construction agreement.  

8.   At the time of making advance amount, the opposite party had furnished all the copies of the parents documents including the planning permit and sanctioned plan to enable the complainants to avail of housing loan.   Accordingly the complainants had applied for and obtained loan from financial institutions for the purpose of purpose of the flats.   It is needless to state that unless the sanctioned plan is produced, the complainants loan application would not have been considered by the bank or other financial institutions.    This itself shows the utter lack of bonafide on the part of the complainants and the complainants have not approached the Forum with clean hands.   The opposite party had never given any assurance to the complainants that need not worry about the covered car parking and it is responsibility to make necessary arrangement.   It is not correct to state that the flat had handed over to the complainants in July 2002.  In fact, the 1^st complainant had taken possession on 7.7.2001, the 2^nd complainant had taken possession on  30.12.2001 and the 3^rd complainant had taken possession on 1.9.2001 and it is false that at the time of possession only a schematic drawing was handed over to the complainants.   As per the  joint developer agreement entered into with the 2^nd opposite party, the 1^st opposite party shall construct 45% of the built up area and to allot car parking for them.   Accordingly this opposite party had allotted three car parking area to the complainants and the remaining car parking area shall be allotted to the owners of the total property.  

9.     In fact, the entire constructions put up by the opposite party as per the agreement entered into by the complainants with the opposite party.   The opposite party-1 has already provided front compound wall with M.S. grill gate and in view of the fact that the other three sides of the property is covered by compound walls, there is absolutely no need or necessity to provide compound wall for the entire property and therefore the allegation  in respect of the compound wall are all quiet in correct.

10.     As per the agreement with the owners of the property, the opposite party shall construct 45% of the built up area and to hand over the same to the owners and the remaining constructed area shall be allotted to the nominee or nominees of the opposite party.    At the request of the 2^nd opposite party the area earmarked for them has been constructed by way of individual flat for the sake of their convenience, for which the opposite party cannot at all be blamed in any event.   Further the opposite party has not constructed any area measuring 250 sq. ft. over the 2^nd floor and the allegation in respect of the same is unsustainable in law.

11.     With regard to the letter dated 1.8.2002 followed by a legal notice dated 1.2.2003 the opposite party has already explained the factual position to the complainants.   The entire complaint emanates because of the disputes inter between the 2^nd opposite party with the complainants, for which the opposite party’s name has been un-necessarily nor a proper party to the above complaint.

12.     The opposite party constructed the flats as per the terms and conditions made in the construction agreement and hence the allegations is nothing but figment of imagination of the complainants, invented for the purpose of the complaint.    In fact the construction put up by the opposite party is very sound in nature and as per the standard construction.   Therefore, there is no deviation and violation as imagined by the complainant.   Hence, there is no deficiency in service on the part of the 1^st opposite party.  The question of payment of compensation does not arise at all.  Hence this complaint is liable to be dismissed as devoid of merits with exemplary costs.

13. Written Version of  2^nd opposite party is  in brief as follows:

       All the allegations made in the complaint against the opposite party are denied.   This opposite party is not responsible with respect to the construction of the flat.   This opposite party has no knowledge about the promises to have been made by the 1^st opposite party

14.    As far as the contract pertaining to this opposite party the complainants do not come within the meaning of Consumer.   The opposite party has neither sold goods nor hired or availed any services for any consideration.    The payment of consideration for the purchase of undivided share in the land paid by the complainants does not amount to service.  

15.    The allegations  that the 1^st opposite party did not provide for a reserved car park for the complainants is not within the knowledge and responsibility of the opposite party.    The covenants set out in the agreement with respect of the opposite party is only to convey the undivided share and the opposite party has conveyed the said undivided share.   The allegations contrary to the same are emphatically denied.   The opposite party is no way for the alleged deficiency committed by the 1^st opposite party.     This opposite party has been vexatiously impleaded as one of the complainants seems to be against the 1^st opposite party. Hence this compliant is not maintainable against her legally and unsustainable.   Hence this complaint is liable to be dismissed with exemplary cost.

16.    In spite of notice served to the opposite party-3 and he has not chosen to appear before this Forum.  Hence the opposite party-3 was set exparte.

17.  Written Version of  4^th opposite party is  in brief as follows:

        Based on the complaint filed by the complainant the said property was inspected on 18.2.2005 and noticed that the construction of ground floor plus 1^st floor plus 2^nd floor part with nine dwelling units completed and occupied at the time of inspection no approved plan was produced hence the opposite party issued a notice calling for approved plan vide notice No.D.2577 date 18.2.2005 and the said notice issued to developer M/s Ananthi Construction Limited and 2^nd opposite party till date he has not furnished any approved plan. 

18.     The 4^th opposite party further states that the construction is ground plus first floor plus 2^nd floor part completed and occupied, this subject matter has been sent to Commissioner, Corporation of Chennai the 3^rd opposite party herein for necessary action against the construction vide in our office letter No.ESI/5358/2005 dated 28.2.2005, more over the opposite party has not issued any completion certificate for this construction.   The 4^th opposite party further states that there is no privity of contract between the complainant and the CMDA and the complainants are not at all a consumer under CMDA, therefore the above compliant is liable to be dismissed as against CMDA.  This complaint purely deals with a dispute between the complainants and the opposite parties 1 & 2.

19.    In order to prove the averments of the complaint, the complainants have filed proof affidavit as their evidence and documents Ex.A1 to Ex.A15 marked.  Proof affidavit of 1, 2, and 4^th opposite parties filed and no document was marked on the side of the 1, 2, and 4^th  opposite parties.

20.     At this juncture, the point for the consideration before this

        Forum is:  

 

1.   Whether the complaint is in time or not ?

 

2.  Whether there is any deficiency of service on the part of the 

     Opposite parties as alleged in the complaint?

 

3. Whether the complainant is entitled to any relief as prayed for?

21.    POINT NO.1

            Regarding this point, on careful perusal of the opposite party-1, it is contended that the complaint has been filed by the complainant after the expiry of the prescribed period of limitation, since the 1^st complainant to 3^rd complainant have taken possession of the flats on 7.7.2001, 30.12.2001, 1.9.2001 respectively.    At the outset on going through filing of this complaint it is stated by the complainant that the opposite parties handed over the possession in July 2002, but not mentioned the actual date of handing over the possession.  However it is admitted by the opposite parties the above said date of handing over the possession as mentioned in written version.   If it is so as per the Provision of Consumer Protection Act the complaint shall be within two years from the last cause of action.   So this complaint ought to have filed to the complainant on or before 6.7.2003, 29.12.2003, and 30.8.2003 respectively.   In this circumstances on careful perusal of the date of filing of the complaint is clearly noted from the records of this forum as 20.6.2003 and returned for certain quires on several times and it was taken on file on 10.2.2004.  Therefore it is crystal clear that this compliant filed by the complainant is within a time as prescribed under the Consumer Protection Act.  Hence this plea taken by the opposite party is unsustainable in law.    Thus point No.1 is answered accordingly.

23.  POINT NO.:2:- 

            On perusal of the evidence of the complainant it is learnt that the agreement of sale cum construction flats entered between the complainants and the power of attorney agent of the 2^nd opposite party which is marked as Ex.A4, Ex.A5 and Ex.A6 respectively and the sale deed regarding the conveyance of the respective undivided share in favour of the complainants are marked as Ex.A3, Ex.A7 and Ex.A14 respectively.   It is further narrated by the complainant that the 1^st opposite party handing over the flats to us in July 2002 he has only handing over the copy of the schematic drawing marked as Ex.A1 and on their pressure, the sanctioned building plan was handed over to us which is marked as Ex.A2.   Further it is seen from the evidence that  the sanctioned building plan is in total violation to the schematic drawing, the car park slots allotted in the sanctioned building plan have been converted a flat in the ground floor and the owners of the other flats are parking their two wheelers in the 55% of space and there is absolutely no place for three car parking slots for complainants and for which the opposite party had collected additional consideration from us.   Moreover there is seepage from the adjacent houses on all four sides since no compound wall has been raised by the 1^st opposite party and thereby causes nauseating atmosphere making it non habitationable.  Besides these violations a small portion of about 250 sq ft. or thereabouts has also been constructed in the 2^nd floor without a sanction from the 3^rd  and 4^th opposite parties.  

24.        Therefore the complainant highlighting all these discrepancies Ex.A8 and Ex.A9 sent to the opposite party-1 but not come forward to rectify the same.  Hence the complainants were constrained to send legal notice Ex.A10 to the opposite party-1 and Ex.A11 is acknowledgment for the receipt of the same and also sent another legal notice Ex.A12 and the same was received through Ex.A13.  Even then the opposite party-1 has not come forward to rectify the demands made by the complainant.  The photographs of the locations and physical features prevalent in the petition premises marked  as Ex.A15.  

25.        While being so on going through the evidence of the opposite party-1  it is narrated that he had handed over the vacant possession of the flats to the respective complainants to maintain and preserve the same and also allotted three car parking areas to the complainants and the remaining car park area shall be allotted to the owners of the property.   It is further stated that the entire construction was put up by the 1^st opposite party as per the agreement entered into the complainants and also already provided compound wall with M.S. Grill gate, having regard to the fact that the other sides of the property is covered by the compound walls.   Therefore there has been absolutely no need or necessity for the 1^st opposite party to provide compound wall for the entire property.   It is further stated in his proof affidavit that he had already handing over all the documents even at the time of initial payment and therefore there is no deficiency in service on his part.

26.      In such circumstances from the evidence of the opposite party-2 it is seen that no way responsible or liable for the allegations made against the opposite party-1 in the complaint and the convents set out in the agreement with respect to this opposite party is only to convey the undivided share and this opposite party has conveyed the said undivided share.  

27.      At this juncture, on careful perusal of the rival submissions put forth on either side, it is admitted case that there was an agreement between the complainants and the opposite party-1 for sale cum construction agreement which is marked as Ex.A4, Ex.A5 and Ex.A6.  Similarly there is no dispute at all, Ex.A3, Ex.A7, Ex.A14 being the sale deed for the conveyed the respective undivided shares with the complainants.   It is further seen from the evidence adduced on both sides though it is alleged in the complaint by the complainants that Ex.A1 was only given at the time of handing over the flats by the 1^st opposite party, when the said plan was handed over to the complainants.   Moreover, it is clearly admitted in the proof affidavit of the complainants that subsequently the sanctioned building plan was handed over to them which is marked as Ex.A2.   However, as rightly pointed out by the opposite party-1 that without production of the sanctioned building plan the complainants loan application could not have been considered by the bank or other financial institutions.  Therefore, there is every possibility to conclude that the sanctioned building plan was handed over to the complainants by the 1^st opposite party at the time of making advance amount.   At the outset the version given by 4^th opposite party reveals the fact that no approved plan was produced for the construction of ground floor for first floor, for 2^nd floor with main building units which is in question.   In such circumstances, the opposite party-3 the Commissioner Corporation of Chennai was an exparte.   From the above facts the allegations made in the complaint in respect of not handing over the sanctioned building plan is  not proved.  

28.        The next allegation made in the complaint is that with regard to the car parking area and compound  wall and all four sides have not been put up by the opposite party-1 is at all proved with relevant evidence.   Similarly with regard to the seepage of draining water with adjust building and other defects mentioned in the complainants have also not been proved by the complainant.   Whereas the opposite party-1 has clearly explained in the written version as well as in the proof affidavit.    If it is in order to disprove the explanation made by the opposite party-1, the complainant ought to have taken steps to file application for appointment of Advocate Commissioner to show about the actual deviation or violation as alleged by the complainants.   At least before filing of the complaint, the complainant in order to prove the above deviation and violation, the complainants ought to have appointed the qualified Civil Engineer to inspect the petition mentioned property and obtained the expert opinion, but the complainant failed to do so.  

29.     In the light of the above facts and circumstances the complainants have not come forward to prove the allegation made in the complaint the consistent and acceptable evidence.   Moreover the learned counsel for the opposite parties would submit that as per Sec 12 (1) (c ) of the Consumer Protection Act this complaint has not been filed in proper way.  In this complaint, it has been filed by three complainants for their grievance as a single complaint is not proper and in fact they shall file separate complaint for their grievance arose on different occasions and thereby this complaint is not maintainable.    Hence, the plea taken by the opposite party-1 cannot be easily thrown out.  Considering all these above facts and circumstances it is crystal clear that the deficiency of service on the part of the opposite parties as alleged  in the complaint have not been proved by the complainants.  Thus point No.2 is also answered accordingly.

30.    POINT NO.:- 2

As per the view concluded in point No.1, the complainants are not entitled for any relief as prayed for in the complaint.  Thus the point No.3 is also answered accordingly.

         In the result, this complaint is dismissed.  No costs.

          Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  25^th  day  of  January 2017.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainant’s side documents:   

Ex.A1- 5.5.2000    - Copy of Schematic Sketch Plan of the 1^st opposite party to

                               the complainants. 

Ex.A2- 1.7.2000    - Copy of sanctioned building plan of Corporation of Chennai

                               to 2^nd opposite party.

Ex.A3- 27.12.2000 – Copy of sale deed from the 2^nd opposite party to the

                               complainant.

Ex.A4- 23.8.2000   - Copy of agreement of sale cum construction of 1^st opposite

                               party to the 1^st complainant.

Ex.A5- 10.7.2001           - Copy of agreement of sale cum construction of 1^st opposite

                               party to the 3^rd complainant.

Ex.A6- 23.10.2001 – Copy of agreement of sale cum construction of 1^st opposite

                               party to the 2^nd complainant.

Ex.A7- 21.11.2001         -  Copy of sale deed of 2^nd opposite party to 2^nd complainant.

Ex.A8- 1.8.2002    -  Copy of letter from the complainants to 1^st opposite party.

Ex.A9- 8.8.2002    -  Copy of Acknowledgement from the 1^st opposite party to

                               the complainant.

Ex.A10- 1.2.2003   - Copy of legal notice by the complainants to the 1^st opposite

                               Party.

Ex.A11- 4.2.2003  -  Copy of Acknowledgment by the 1^st opposite party to

                               Complainant’s Advocate.

Ex.A12- 16.4.2003         - Copy of legal notice by the complainant’s advocate to

                                The opposite parties.

Ex.A13-       -       - Copy of Acknowledgements.

Ex.A14-       -       - Copy of Sale deed by the 2^nd opposite party to the 3^rd

                               Complainant.

Ex.A15-       -       - Copy of photographs.

 

Opposite parties’ side document: -   .. Nil.

 

MEMBER-I                        MEMBER-II                              PRESIDENT.