Tamil Nadu

South Chennai

CC/419/2018

R Dinesh Ram - Complainant(s)

Versus

M/s Annai Builders - Opp.Party(s)

K Ramadoss

21 Feb 2023

ORDER

                                             Date of Complaint Filed :18.04.2018

                                             Date of Reservation      :27.01.2023

                                             Date of Order               :21.02.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                              : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,              :  MEMBER  I 

                   THIRU. S. NANDAGOPALAN., B.Sc., MBA.,        : MEMBER II

 

CONSUMER COMPLAINT No.419 /2018

TUESDAY, THE 21^st DAY OF FEBRUARY 2023

R. Dinesh Ram,

Rep. by his Power of Attorney Holder : Mr. K.Ramadoss,

1, Vasugi St, Kosapalayam,’

Pondicherry 13.                                                                                                                                         ... Complainant               

..Vs..

 

M/s. Annai Builders Real Estate Private Limited,

Rep. by its Managing Director/authorised signatory,

HavingOffice at Alpha Centre, 4^th Floor, 150 & 151,

North Usman Road,T.Nagar,

Chennai -600 017.                                                                                                                                        ...  Opposite Party

******

Counsel for the Complainant          : Party in Person

Counsel for the Opposite Party       : M/s. K. Rajasekaran

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

 

ORDER

Pronounced by Member-I, Thiru. T.R.Sivakumhar., B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Party to pay a minimum sum of Rs.6,00,000/- with interest thereon at the rate of 18% p.a from the date of complaint till payment and discharge, towards compensation for the physical hardship, mental agony and monetary loss caused to him and his family members by the Opposite Parties by their delay, deficiency in service and unfair trade practice and to pay a sum of Rs.20,000/- towards litigation expenses.

2.     The averments of Complaint in brief are as follows:-

The Complainant on seeing Advertisement and had approached the Opposite Party. On Opposite Party’s assurance in promoting flats and offering to sell, had agreed to buy a Flat for residential purpose.  In spite of the promotion agreement prepared by the Opposite Party was a onerous one with several clauses favourable to the them, like the interest payable in default of payment of the consideration amount in time by the allottee, and the same was agreed as they were in need of a Residential building and the Promotion agreement was entered into with the Opposite Party on 29.07.2012, under such constrained circumstances and the Complainant and the Power Agent of the Complainant were shown as Joint allottee of Flat No.F-3 in Unit No.B-15 at First Floor consisting of a Built-up area of 900 Sq.Ft and an Undivided Share of Land of 565Sq.Ft. out of 2445 Sq.Ft. The Opposite Party had promised to deliver the Constructed Flat and had assured to complete the Construction and hand over the possession of the flat within a period of 12 (Twelve) months from the date of sanctions being finally granted i.e on or before August 2013, in spite of sanction for construction was granted even prior to the date of Promotion agreement as early as on 26.04.2012, subject to general exception known in Law. But, the Opposite Party did not delivered the agreed Flat in time but with a delay of above 3 yearsonly on 02.05.2016, despite paymentsmade the Complainant as scheduled in the agreement and as and when they raised the demand. The Opposite Party did not provide any explanation as in contract or in law, for the delay they caused in handing over of the Flat. The Opposite Party had demanded a sum of Rs.30,000.00 and Rs.83,152.00 towards Electricity Board Charges and Service Tax Charges vide their letter dated 04.05.2016 without furnishing the mode of such sum being arrived, despite repeated demands for the same.Hence the delay in handing over the possession of the Flat, failure to furnish details regarding charges demanded, amounts to deficiency in service and Unfair Trade Practice. Further, though the Opposite Party has assured a passage of 20 feet Road by west of the Land marked as E-1 in the sale Agreement dated 14.02.2013, has not provided so on the site. The Opposite Party at the time of handing over the Possession had assured to attend the defect in the construction but failed to do so. The toilet flush tank was found to be without proper connection for supply of water, the window of the Toilet is seen facing the window of the other side flat without securing privacy to the user. The Basin sink was not properly attached to the wall and gave a ugly look. Though the same was brought to the knowledge of the Opposite Party in person at the time of handing over, the same was not rectified and thus were constrained to rectify by self incurring material and labour charges. Further, water being an essential need for living, the Borewell does not fetch any water and the residents are forced to import water from private vendors at additional cost. It was also found that the, Opposite Party has not done the Plumbing out-lets of the house to the septic tank with a quality pipe, resulting in damage of the pipe and seepage of the drainage water in the nearby vicinity causing bad odder and risk of contamination.During the monsoon season the ceiling of the 1^st floor was seen with dampened patches due to improper weathering course on the roofing.The Opposite Party has not provided the assured teak wood main door frame and shutter as promised but has only given a cosmetic finish of teak.The roofing over the OTS given at the terrace being of sub standard stands removed by wind. Further the Opposite Party seems to have not constructed the Flat as per the Approval of the Planning Authority since the space between two blocks of the house was very narrow causing risk at the terrace level to the allotees. Among the several other deficiencies in service, the Opposite Party has failed in its most essential duty of statutory compliance in their failure to obtaining a Completion Certificate from the St.Thomas Mount Panchayat Union at Chitlapakkam and C.M.D.A before handing over the possession to the occupants until this day and the Complaint’s occupation continues to be illegal being in violation of the term of the Planning Permit. Opposite Party said breach of the Statutory Condition in its failure to obtain the occupation Certificate for the Complainant amounts to deficiency in service and unfair illegal.The Opposite Party as a promoter had failed to provide common amenities like proper Road, Park and open spaces, Common Electrical Lines and Lightening, water lines, sewers, drains, pipes, internal roads, payments etc.,. The Opposite Party’s said Deficiency in Service and Unfair Trade Practice had caused physical hardship, mental agony and monetary loss to the Complainant and his family members and consequently the Opposite party is liable to appropriately compensate the Complainant for the same.Hence the complaint.

3. Written Version filed by the Opposite Party in brief is as follows:-

  The Complaint is not maintainable neither in law nor on facts, as the same requires adducing oral evidence for the proof of the facts and the same ought to be decided only by a Civil Court having proper jurisdiction. For the purpose of avoiding payment of Court Fees before the Civil Court, the Complainant had chosen to file the above Complaint before this Hon’ble Commission, with false, Vexatious and frivolous facts and the intention of the Complainant was to defame their name and to extort substantial sum so as to unjustly enrich him-self. The Complaint itself suffers from the patent illegality such as maintainability of the complaint and locus standi of the Complainant. The Locus standi of the Power of Attorney to represent the Complainant has been questioned on maintainability as the Power Agent without filing registered Power of Attorney and without having valid document of Power holding the power of attorney cannot represent on behalf of the Complainant. Further the Power Agent had no nexus with them and he has no personal knowledge of the transaction between them and the Complainant. And further though the Power of Attorney holder was mentioned as Allottee No.2 in the Promoters Agreement dated 29.07.2012 along with the Complainant as Allottee No.1, who had not signed in the Promoters Agreement in the year of 2012 and further when the Sale Deed was entered between the Complainant and the Opposite Party on 14.02.2013 the Power of Attorney holder was not a party to the Sale Deed. Admittedly as the present complaint was preferred against the violation of the terms of the Promoters Agreement. But the Promoters agreement has culminated to Sale Deed between R.Dinesh Ram and them, the Power Agent was not a party and he didn’t ascribe his signature anywhere in the agreement and not even as a witness. Further as per Clause 8 of the Promoter Agreement, the defect liability period was for one year from the date of completion of construction and in the instant case the possession was handed over on 02.05.2016 and one year period was expired even before filing of the complaint. The Complainant suppressed the fact of execution of Sale Deed between the Complainant wantonly failed to state the existence of the Supplementary Agreement entered between the Complainant and them on 08.03.2015. The Said Supplementary agreement would throw more light on the issue on the other hand on the suppression of the mere existence would show their ill state of mind. The terms of the Supplementary agreement are very crucial in the Original Promoters agreement the Complainant Allottee was only benefited of 900 Sq.ft of build up area whereas the Supplementary Agreement gave benefit of additional 96 Sq.ft of built up, which was in favour of the Complainant. The allegations made in the Complaint is utter false and has no iota of truth. The Complainant never ever made complaint against insufficiency of service and default of aggrieved terms of the Promoters agreement and Supplementary agreement or sale deed before the Opposite Party. If at all the allegations were true, the very premise that the Complainant ought to have been attempted to make his grievances to them, he had never done so. Hence the delay in handing over the possession of the Flat, failure to furnish details regarding charges demanded, amounts to deficiency in service and Unfair Trade Practice. It is more important that the Complainant on the date of handing over possession, ie., on 02.05.2016 gave a declaration / acknowledgment in which categorically acknowledged that the house was constructed as per the terms and condition as agreed by the Complainant and Opposite Party. The acknowledgment would establish that they had constructed the building as per the norms and terms of the agreement, statutory requirement and other legal comments. The Complainant malafidely suppressed the very fact of existence of this acknowledgment of satisfaction of requirement given by him to the Opposite Party. Therefore the Complainant has not come before this Hon’ble Forum with clean hands.The Supplementary Agreement, Sale Deed and acknowledgment were only given by the Complainant R.Dinesh Ram. Hence the Power of Attorney was not a party to this lis. The Complainant entered into a Supplementary Agreement dated 08.03.2015 for additional 96 Sq.ft super built area. The Complainant cannot raise the issue very belatedly as the promoters agreement was entered on 29.07.2012 and if at all the Complainant was aggrieved with regard to handing over of the possession belatedly he should have made a complaint before them or filing complaint before this Hon’ble Forum. Hence the said issue suffers on account of limitation. The Electricity charges (i.e., Inclusion of erection of poles, transformers, fixation of meter boxes, EB deposits) and service tax charges need to be borne by the Allottees, as a Promoter they always remit such charges to the appropriate authorities to the whole unit and not by the single unit, in support of the said contention they had filed the document for remittances of said taxes to the authorities. The promoters agreement dated 29.07.2012 was strictly followed and implemented by the Opposite Party and there is no short of 20 Feet Passage in the site. No such Complaint was brought to their notice and they cannot be made liable for any minor wear and tear defects. The Opposite Party reiterates it would be liable to follow the defect liability clause of 8 the Promoters Agreement. Water scarcity is rampant everywhere and it is cause of Nature. Therefore the Opposite Party has no role in it at the time of execution of Promoters Agreement and handing over the possession, there was no complaint of ground water deficiency. Further, the building was constructed strictly as per the building approval plan. The initial plan was slightly modified and got approval from authorities and with the knowledge and endorsement of Complainant it can be evident from e-mail correspondence of Complainant dated 26.05.2014.The Contents in it are irrelevant since obtaining Completion Certificate from the authorities are not mandatory before the act of RERA was enacted and following the Government Notification more so it is only applicable to residential buildings which are having more than 3 floors. The allegation are false as against the acknowledgment given by the Complainant dated 02.05.2016.There was no unfair trade practice on the side of Opposite Party since every terms, facilities, plan were made in consonance of agreement of the Complainant. The Complainant is not liable to get relief as claimed, as the allegation has no merit and base. Hence prayed to dismiss the complaint. 

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents marked as  Ex.A-1 to Ex.A-5. The Opposite Party submitted its Proof Affidavit and Written Arguments. On the side of Opposite Party documents were marked as Ex.B-1 to Ex.B-5.

Points for Consideration:-

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

It is an un disputed fact that the Complainant had booked a flat bearing No.F-3 in Unit No.B-15 at First Floor consisting of a Built-up area of 900 Sq.Ft and an Undivided Share of Land of 565 Sq.Ft. out of 2445 Sq.Ft, with the Opposite Party under Promoter’s Agreement dated 29.07.2012.

The disputed facts of the Complainant were that the Opposite Party had not handed over the possession of the Flat within 12 months from the date of sanctions being finally granted, as agreed under the Promotion Agreement dated 29.07.2012, though the Building sanction was obtained before the execution of the said Promoter’s Agreement and the reason for delay has not been informed to the Complainant. Further disputed that the construction of subject Flat made and handed over on 02.05.2016 was not as per the sanctioned plan and the services and amenities agreed to be provided by the Opposite Party were not provided as per the Promoter’s Agreement. Further disputed the failure of disclosure of charges demanded in respect of Electricity Board Charges and Service Tax charges.

Further disputed that the assured passage of 20 feet Road has not provided so on the site, assurance to attend the defect in the construction was not done like  toilet flush tank was found to be without proper connection for supply of water, the window of the Toilet is seen facing the window of the other side flat without securing privacy to the user, the Basin sink was not properly attached to the wall and gave a ugly look and contended that though the same was brought to the knowledge of the Opposite Party in person at the time of handing over, the same was not rectified and thus were constrained to rectify by self incurring material and labour charges.

Further disputed that Borewell does not fetch any water and the residents were forced to import water from private vendors at additional cost, the Plumbing out-lets of the house to the septic tank has not been done with a quality pipe, resulted in damage of the pipe and seepage of the drainage water in the nearby vicinity causing bad odder and risk of contamination. Further contended that during the monsoon season the ceiling of the 1^st floor was seen with dampened patches due to improper weathering course on the roofing. The assured teak wood main door frame has not been provided and shutter as promised but has only given a cosmetic finish of teak. The roofing over the OTS given at the terrace being of sub standard stands removed by wind. It seems the Flat has not been constructed as per the Approval of the Planning Authority since the space between two blocks of the house was very narrow causing risk at the terrace level to the allotees.

Further disputed that the Opposite Party has failed in its most essential duty of statutory compliance in their failure to obtaining a Completion Certificate from Concerned Authorities before handing over the possession to the occupants until this day as the Complainant’s occupation continues to be illegal being in violation of the term of the Planning Permit. The Opposite Party as a promoter had failed to provide common amenities like proper Road, Park and open spaces, Common Electrical Lines and Lightening, water lines, sewers, drains, pipes, internal roads, payments etc. Among other deficiencies mentioned above the Opposite Party said breach of the Statutory Condition in its failure to obtain the occupation Certificate for the Complainant amounts to deficiency in service and unfair illegal.

The contentions of the Opposite Party was that the Power Agent of the Complainant has no locus standi to represent on behalf of the Complainant, as he had filed or holding valid Power of Attorney to do so. Further the Promoter’s Agreement dated 29.07.2012 was signed by the Power of Attorney Holder as Allottee No.2 and the said document was not signed by the Complainant. Further the Sale Deed in respect of UDS executed on 14.02.2013 was signed by the Complainant and the Power of Attorney had not even signed as witness in the said document. Further the Complainant had agreed for change of construction plan and approved the same on 26.05.2014 and a Supplementary Agreement dated 08.03.2015 was entered into between the Complainant and Opposite Party, which facts were supressed in the complaint filed and the complaint filed was on the basis of the Promoter’s Agreement dated 29.07.2012, which suffers by limitation. Further they had completed the construction of the Flat as per the Supplementary Agreement and the drawing approved by the Complainant and handed over the same on 02.05.2016 and with complete satisfaction of the Complainant the same and on making the payment as demanded by them,was handed over and the Complainant was benefited with 96 sq.ft in built up area against originally agreed built up area of 900 sq.ft. Further contended that obtaining Completion Certificate from the authorities are not mandatory before the act of RERA was enacted and following the Government Notification more so it is only applicable to residential buildings which are having more than 3 floors. The Complainant had never made any complaint to them with regard to deficiency or provision of amenities agreed to be provided under Promoter’s Agreement. The Opposite Party had filed the Receipts for having paid the Service Tax charges and Electricity Charges as demanded by the Complainant along with other documents with the Written version.

On discussion made above and on considering the facts and circumstances of the case, it is clear that the complaint has been filed with clear suppression of material facts about the approval of revised plan of the subject flat made by the Complainant on 26.05.2014, the Supplementary Agreement dated 08.03.2015 entered into between the Complainant and the Opposite Party and the Acknowledgement and Declaration dated 02.05.2016 given by the Complainant, which were evidenced from Exs.B-2, 3 and 5. And further Ex.B-1 and B-4 evidencing the payment made by the Opposite Party towards Service Tax Charges and Electricity Fixed deposit Charges in the name of the Complainant, filed along with the written version and marked before this Commission, a CMP No. 261 of 2019 seeking copies of the same along with Original Building plan sanction with the Completion certificate filed by the Complainant which has been taken for decision along with the main CC. Though the Opposite Party contended on the point of Locus Standi of Power Attorney to represent on behalf of the Complainant, is not sustainable, as per records Original Power of Attorney dated 09.09.2018 has been filed and received by this Commission and further with regard to the contention that the Complaint filed based on the Promoter’s Agreement dated 29.07.2012, seeking delay in handing over of the Possession of the subject flat should have been filed before the limitation period, is not sustainable, as by supplementary agreement dated 08.03.2015 the alterations made in respect of the Built up area from 900 sq.ft to 996 sq.ft and additional payment in respect of built up area to an additional extent of 96 sq.ft, was based on the Promoter’s Agreement and the other clauses of the Promoter’s Agreement agreed to be remain same. Further the contention raised referring Clause 8 of Promoter’s Agreement relating to agreed Defect liability for one year from the date of completion and claiming that the Complainant had filed the present complaint after the said period of one year, ie., possession of the subject was handed over on 02.05.2016 and the complaint regarding any defect should have been filed on or before 01.05.2017 would not restrict the Complainant to file a complaint before the Commission if any defects has been found within two years from the date of handing over of the possession. Hence the Defect Liability mentioned Clause 8 of the Promoter’s Agreement does not bind or bar the Complainant in filing a complaint for defects in the subject flat.

With regard to dispute raised by the Complainant that the Opposite Party had failed to obtain Completion Certificate from the authorities and to provide the same to the Complainant and in this regard the Complainant had relied upon a Judgment of our Hon’ble Apex Court passed in Civil Appeal No.4000 of 2019 in Samruddhi Co-operative Housing Society Ltd Vs- Mumbai Mahalaxmi Construction Pvt Ltd, wherein it was held that failure to obtain Occupancy Certificate amounts to deficiency of service. The contentions of the Opposite Party with regard to obtaining Completion Certificate from the authorities is not mandatory before RERA was enacted and following the Government Notification, Completion Certificate for residential buildings having more than 3 floors is mandatory and the Opposite Party having obtained building permit for Ground plus First Floor, the Completion certificate is not mandatory, is acceptable, as the Opposite Party had obtained building permit for Ground plus First Floor and the Complainant had purchased the First Floor and taken delivery of the same, which was not denied by the Complainant. The Complainant having agreed to the revised plan of the subject flat as found in Ex.B-2, having agreed and signed the Supplementary Agreement as found in Ex.B-3 and having acknowledged and declared the possession of the subject flat taken vacant physical possession completed in all aspects and without any defects/snags, as found in Ex.B-5, the said facts are supressed by the Complainant before this Commission and filed the present complaint based on the Promoter’s Agreement dated 29.07.2012 as if there was delay in handing over of possession of the subject flat, would clearly proves that the Complainant had approached this Commission with clear suppression of material facts and with unclean hands. Further the Complainant had not filed any material evidence to substantiate his claim and had failed to prove the deficiency of service on the part of the Opposite Party. Therefore, this Commission of the considered view that the Opposite Party had not committed deficiency of service and/or unfair trade practice to the Complainant. Accordingly Point No.1 is answered.

CMP No.261 of 2019:

As the documents sought to be produced under CMP No.261 of 2019 filed by the Complainant, has already been produced by the Opposite Party along with the Written Version and the same were marked as Ex.B-1 and Ex.B-4 and the other document of Building Sanction with completion certificate, as Building Sanction was already mentioned in the Promoter’s Agreement, having verified the validity of the said document and signed the same and having agreed for revised plan of the subject flat seeking Completion Certificate though it is not mandatory for the building consisting of Ground and first floor, this Commission is of the considered view that the CMP is liable to be dismissed and the same is dismissed. Accordingly the CMP is disposed of.     

Point Nos.2 and 3:

As discussed and decided Point No.1 against the Complainant, the Complainant is not entitled for reliefs claimed in the complaint. And hence the Complainant is not entitled for any other relief/s. Accordingly Point Nos. 2 and 3 are answered. 

In the result the complaint is dismissed. No costs. C.M.P NO.261/2019 is disposed of accordingly.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 21^st of February 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

List of documents filed on the side of the Complainant:-

 

Ex.A1	29.01.2012	Promotion Agreement between the Opposite Description of Documents Party and the Joint Allottees, the Complainant and his Power of Attorney
Ex.A2	-	Print of the Photos of the defects found inbathroom, take by the complaint on his own in his mobile at the time of handing over the Possession
Ex.A3	14.02.2013	Sale deed executed by the Opposite Party to and in favour of the Complainant for the Un-Divided share of Land
Ex.A4	04.04.2016	Final Demand Letter by the Opposite Party to the Complainant for payment of the charges under Various Heads
Ex.A5	02.05.2016	Handing over Certificate issued by the Opposite Party to the Complainant.

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	04.01.2013 05.02.2013 06.03.2013	Receipt of remittance of Service Tax
Ex.B2	26.05.2014	e-mail correspondence between Complainant and Opposite Party
Ex.B3	08.03.2015	Supplementary Agreement
Ex.B4	31.08.2015	EB fixed deposit charges
Ex.B5	02.05.2016	Acknowledgement given by the Complainant

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT