Tamil Nadu

South Chennai

CC/301/2018

Mr. Thyagarajan Arunachalam - Complainant(s)

Versus

M/s Bharath Building Construction - Opp.Party(s)

M/s R Amaarnath

12 Oct 2022

ORDER

Date of Complaint Filed : 02.07.2018

Date of Reservation      : 23.09.2022

Date of Order               : 12.10.2022

 

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. 301/2018

WEDNESDAY, THE 12^th DAY OF  OCTOBER 2022

Mr. Thyagarajan Arunachalam Thevar,

No.17/1, 4^th Main Road,

V.G.P Layout Part 1,

Palavakkam,

Chennai – 600 041.                                                           ... Complainant                      

 

..Vs..

M/s. Barath Building Construction (India) Pvt Ltd,

Rep. by its Chief Finance,

No.20, Mylai Ranganathan Street, T.Nagar,

Chennai – 600 017.                                                      ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. R.N. Amarnath

Counsel for the Opposite Party       : Exparte

 

        On perusal of records and after having heard the oral arguments of the Complainants, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.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 sum of Rs.4,80,000/- towards loss of rent and to pay a sum of Rs.2,00,000/- towards mental agony and delay in completion of Construction and to pay a sum of Rs.3,00,000/- towards hardship caused to the Complainant.   

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

The Complainant’s parents are native of Tamil Nadu, doing business at Nasik, Maharashtra. The Complainant’s father is a Renal Transplant patient and requires regular medical check-up and consultation. The lack of medical facilities in Nashik and on their wish to settle down in their native the Complainant had taken house for rent at Palavakkam, Chennai. He came to know that the Opposite Party was promoting apartment at Thoraipakkam. When the Complainant approached the Opposite Party the Complainant was made to believe that the apartment will be completed and handed over around April 2016. Believing the promises made by the Opposite Party the Complainant made an advance payment for a sum of Rs.49,500/- on 25.02.2015. On payment of advance the Complainant was issued with an allotment letter for an apartment in E Block, 3^rd Floor bearing Apartment No.3E with built up area of 1121 sq.ft along with undivided share of 531.79 sq.ft and one for car parking for a total sale consideration of Rs.63,25,859/-.  The Complainant made further payment of Rs.49,500/-. Based on the advance paid and issuance of allotment letter, a memorandum of understanding was entered between the Opposite Party and the Complainant on 03.03.2015. As per clause 12 of the MoU the Construction of Apartment should be completed within a period of 24 months from the date of grant of approval of the building plan or by April 2016 whichever is later, with a grace period of 3 months.  The Complainant had paid a sum of Rs.4,98,182/- and Rs.22,90,135/-. As per Annuxure-D of MoU the payments to be made at regular intervals. The Complainant was intimated with a status report on 05.01.2016, which had no information regarding Block E.  The Complainant was also intimated with another status report on 22.04.2016 which had photographs of Block- E from which it is clear that the foundation work was started only on April 2016. On 30.11.2016 the Opposite Party demanded payment for stage 4 through email which is to be made on completion of the first floor slab. With regard to the said email the Complainant had sent an email on 01.12.2016 enquiring the date of completion of the construction and handing over possession, since they have already crossed the due date.  Thereafter there was several communications between the Complainant and the Opposite Party regarding the completion of the Apartment and finally on 24.04.2017 the Opposite Party had demanded for a payment for 95% of the total sale consideration which arises only after completion of the construction of Apartment. Further as per clause 2.9 of the MOU it is clear that the allotee who availed loan is liable to pay only 55% of the total sale consideration for registration and the remaining amount to be paid stage wise. On 05.10.2017 a legal notice was sent to the Complainant regarding the delay in construction, for which no reply was sent by the Opposite Party.  The Complainant received a mail on 15.03.2018 stating that the Opposite Party has completed the apartment and was issued with a completion certificate by the CMDA, which certificate is only to get electricity, sewage and water connection. On 15.03.2018 when the complainant visited the premises it was still in inhabitable condition. On 09.04.2018 the Complainant issued notice to the Opposite Party stating that the Opposite Party has not completed the building in a manner suitable for occupancy. By email dated 15.03.2018 the Opposite Party has demanded a sum of Rs.23,63,149/- which is bogus claim with interest as if the flat has been completed and ready to be occupied. The Complainant has suffered loss due to delay in completion of construction and had to pay Rs.25,000/-per month which has inccurred a sum of Rs.5,00,000/- from September 2016, the date of handing over as per the MOU and the same is liable to be payable by the Opposite Party. The Complainant had suffered mental agony due to the act of the Opposite Party. Hence the complaint.

3.    The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-31 were marked.

4.     The Opposite Party did not appear before this Commission even after notice was served on them and remained set exparte.

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?

 

Point No.1:-

      Upon careful perusal of records it is evident that on payment of Rs.49,500/- as advance on 26.02.2015, the Opposite Party had issued Letter of Allotment, Ex.A-2, informing that an Apartment in E-Block, 3^rd Floor, bearing No.3E with a built up area of 1121 sq.ft along with undivided share of 531.79 sq.ft and a car parking had been allotted to the Complainant for a total sale consideration of Rs.63,25,859/- which payment is to be made stage wise. The Complainant had also paid a sum of Rs.49,500/- on 27.02.2015, Ex.A-3, subsequent to which Memorandum of Understanding dated 03.03.2015, Ex.A-4 was entered between the Vendors, Opposite Party and the Complainant. As per Clause 12 of the Memorandum of Understanding, the Opposite Party agreed to complete the construction of the Building/Apartment within a period of 24 months from the date of obtaining necessary approvals from the concerned authorities or commencement of the construction, whichever is later i.e. by April 2016 with a grace period of 3 months to complete the construction of the said Building/Apartment.

The contention of the Complainant was that as per the schedule of payments to be made in Annexure D of the MOU, the Complainant had paid a sum of Rs.4,98,182 and Rs.22,90,135/-.

As per Ex.A-8, the status report of the Opposite Party and the photographs reveal that the piling work of Block E was in progress, which shows that the Opposite Party started the construction work for Block E only in April 2016. The Opposite Party had demanded payment on 30.11.2016 and 03.12.2016, remaining silent about the completion of construction. Hence the Complainant had sent an e-mail dated 07.03.2017, Ex.A-16, stating that he had already paid 50% of the total cost and that he is paying rent and interest for the loan every month and sought information regarding date of completion of his apartment. The Opposite Party assured of handing over the Apartment by July 2017. The Complainant had made further payment of Rs.14,91,815/-in March 2017.

The Opposite Party by its  E-mail dated 24.04.2017, Ex.A-20, demanded for 95% payment of total consideration for preparing Construction Agreement and for the Sale Deed of the Undivided Share, which payment as per the MOU is to be paid after completion of construction of the Apartment. However, Clause 2.9 of the MOU stipulates that allotee who has availed loan is liable to pay only 55% of the total sale consideration for UDS registration.

The Complainant had caused a legal notice dated 05.10.2017, Ex.A-22, claiming damages for the delay in completing the construction and to execute the Sale Deed in respect of the Undivided Share of Land and to give a probable date of completion of construction. On 15.03.2018, the Opposite Party informed that the CMDA had issued Completion Certificate, but according to the Complainant as the building was found inhabitable another legal notice was sent on 09.04.2018 to complete the building suitable for occupation.

On careful perusal of records and upon hearing the submissions of the Complainant, it is found that the Opposite Party  had agreed to hand over the possession of the Apartment by April 2016 with a grace period of 3 months i.e., in the month of July 2016. The Opposite Party had also obtained Planning Permission from CMDA on 30.04.2014 itself. After a delay of nearly 2 years on 15.03.2018 had sent a e mail informing that the CMDA had issued Completion Certificate and sought for further payments. According to the Complainant, he had  made payments towards purchase of  Flat on various dates amounting to Rs.49,74,364/- and the Opposite Party vide notice dated 15.03.2018 had demanded a sum of Rs.23,63,149/-. The Complainant had sought for the relief of loss due to payment of rent from 18.09.2006, the due date of completion of construction as agreed in the MOU dated 30.03.2015 at Rs.4,80,000/- which is not supported by any valid documentary evidence and hence this Commission is not inclined to grant relief for compensation for the loss due to payment of rent. However the Complainant had established that there was delay on the part of the Opposite Party in completing the construction. Considering the facts and circumstances of the case this Commission is of the considered view that the Opposite Party committed deficiency in service on account of the delay in completing the construction of Apartment allotted to the Complainant. Accordingly, Point No.1 is answered.

Point No.2 and 3:-

As discussed and decided in Point No.1, the Opposite Party is liable to pay a sum of Rs.1,00,000/- as compensation for the deficiency in service and mental agony caused to the Complainant along with cost of Rs.3000/- to the Complainant. Accordingly, Point Nos.2 and 3 are answered.

In the result the Complaint is allowed in part. The opposite party is directed to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) towards deficiency in service and mental agony caused to the Complainant and to pay a sum of Rs.3,000/- (Rupees Three Thousand Only) towards costs, to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% p.a from the date of receipt of this order till the date of realisation.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 12^th  day of October 2022.  

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

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

 

Ex.A1	25.02.2015	Copy of Payment receipt copy
Ex.A2	25.02.2015	Copy of Letter of allotment
Ex.A3	26.02.2015	Copy of Payment receipt copy
Ex.A4	03.03.2015	Copy of the MoU
Ex.A5	06.03.2015	Copy of Payment receipt copy
Ex.A6	14.09.2015	Copy of Disbursement Details
Ex.A7	05.01.2016	Copy of Status Report
Ex.A8	22.04.2016	Copy of Status Report
Ex.A9	30.11.2016	Copy of e-mail
Ex.A10	01.12.2016	Copy of e-mail
Ex.A11	02.12.2016	Copy of e-mail
Ex.A12	30.12.2016	Copy of e-mail
Ex.A13	07.01.2017	Copy of Status Report
Ex.A14	02.03.2017	Copy of e-mail
Ex.A15	21.02.2017	Copy of e-mail
Ex.A16	07.03.2017	Copy of e-mail
Ex.A17	07.03.2017	Copy of e-mail
Ex.A18	24.03.2017	Copy of Disbursement Details
Ex.A19	02.05.2017	Copy of Status Report
Ex.A20	24.04.2017	Copy of e-mail
Ex.A21	25.04.2017	Copy of Payment claim
Ex.A22	05.10.2017	Copy of Advocate Notice
Ex.A23	15.03.2018	Copy of e-mail
Ex.A24	16.03.2018	Copy of e-mail
Ex.A25	09.04.2018	Copy of Advocate notice
Ex.A26	27.01.2018	Copy of Rental Agreement
Ex.A27	-	Copy of Statement of Account of ICICI Bank
Ex.A28	10.05.2018	Copy of Photos showing status of Project area and flat No.3E(No.11)
Ex.A29	10.10.2018	Copy of Statement of account showing interest paid by the Complainant from 01.04.2016 to 31.03.2017
Ex.A30	10.10.2018	Copy of Statement of Account showing interest paid by the Complainant period from 01.04.2017 to 31.03.2018
Ex.A31	23.08.2017	Copy of E-mail sent by Opposite Party regarding payment made by the Complainant

 

 

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

 

NIL

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT