Tamil Nadu

StateCommission

A/19/2016

S.Liquat Hussain - Complainant(s)

Versus

M/s Colorhome Developers (p) Ltd - Opp.Party(s)

M/s J.Michael Visuvasam

16 Feb 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

            Tmt. Dr. S.M.LATHA MAHESWARI  ... MEMBER

 

F.A. No.19 of 2016

 

(Against the Order, dated  20.10.2015,  in C.C. No.20/13,

on the file of  the DCDRC, Chennai-North)

                                                    

                                 Orders pronounced on:   16.02.2022

            

S.Liquat Hussain,

S/o.Syed Hussain,

Flat No.10, Block C-11,

SAF Games Village,

Koyambedu,

Chennai 600 107.                      … Appellant / Complainant

 

vs.

 

1.M/s.Colorhome Developers (P) Ltd.,

Rep. by its Managing Director,

Old No.23, New No.19,

Water Purifier Block,

7^th Street, Anna Nagar,

Chennai 600 040.                      … 1^st Respondent/1 O.P.

 

2.  Attaluri Krishna Kishore,

7-B, Type V, MS Block – 3,

CLRI Quarters,

Adyar, Chennai 600 020.            … 2^nd Respondent/2^nd O.P.

 

             Counsel for Appellant    :M/s.BFS Legal

             Counsel for R1              :Mr.M.Devaraj

             Respondent No.2, called absent.

 

 

          This First Appeal came up for final hearing on 20.01.2022 and, after hearing the arguments and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. - President.

             Questioning the Order of dismissal, dated 20.10.2015, passed in C.C. No.20 of 2013, by  the District Consumer Disputes Redressal Forum, Chennai (North), the complainant has preferred the present First Appeal.  

 

             2.   The case of the complainant, as projected in the complaint filed before the District Forum, in brief, is as follows:-

             Believing the representation/assurance of the 1^st Opposite Party that he is a Builder, promoting projects and doing quality construction of flats, on 21.02.2011,  the complainant had booked Flat No.1, “Golden Palm Apartments’, Thoraipakkam, Chennai.  In that regard, he had entered into a Tripartite Construction Agreement, dated 23.03.2011, with the 1^st and 2^nd Opposite Parties and, in terms of the said Agreement, he also paid 70% of the total construction cost.   By sale deed, dated 13.05.2011, the complainant registered the undivided share of the land from the 2^nd Opposite Party as well.

             The complainant was in constant touch with the 1^st Opposite Party, seeking details on progress and other aspects of the construction.  From 23.01.2012 onwards, he was constantly pursuing with the 1^st Opposite Party for further alterations in the internal partitions of the flat as well as changing the common bathroom as attached one and the attached bathroom as common one.  While so, the 1^st Opposite Party, vide reply, dated 31.01.2012, informed that such change could be done by the complainant himself after handing over of the possession, since the construction stage had matured.  The alterations sought to be done by the complainant would, in no way, cause any loss to the 1^st Opposite Party, for, the entire cost of the same would be borne only by the complainant himself.   Further, those alterations could be done easily at the basic construction stage itself and the same would, in no way, hamper the progress of construction in any manner, if done.  But, the alterations would cause huge expenditure, if the same is done after handing over of the possession. When Clause-9 of the construction agreement specifically provides to safeguard the satisfaction of the complainant regarding modification to internal partitions,  the 1^st Opposite Party alone would be held responsible for the consequences, if he fails to carry out the modifications.

             While the complainant was waiting for the 1^st Opposite Party to complete the construction with the alterations in the internal partitions in accordance with the specifications of the construction agreement, he was shocked to receive a mail, dated 14.04.2012, from the 1st Opposite Party, informing that further stages of construction were in progress without alterations to internal partitions and by letter, dated 10.05.2012, they demanded the complainant to settle the balance amount.  The complainant, who had taken loan from the HDFC Bank with EMI at Rs.30,839/- per month and had also paid over 70% of the total construction cost, was greatly shocked by the conduct of the 1^st Opposite Party in demanding balance payment when the works remained virtually incomplete.  The 1^st Opposite Party, in fact, failed to complete many works mentioned in the agreement viz., cupboards not provided in the kitchen & bathrooms, electrical points with proper wiring not given according to the plan, not making a provision for exhaust fan in the kitchen, putting up kitchen tiles and fan hooks contrary to the purpose, defective skirting of wall in smaller bedroom, replacement of broken wooden frames, not providing standard wash-basin in the attached bathroom, not providing window in Namaz Room, not providing open kitchen and not carrying out alterations to the internal partitions.  Hence, he prayed the District Forum to pass an award against the Opposite Parties to – (i) hand over a fully completed Flat No.F1, “Golden Palm Apartments”, Thoraipakkam, Chennai, in all respects as per the agreed terms on payment of balance after due deductions, (ii) permit the complainant to deduct the cost of remaining unfinished works as listed out in Para 7 of the complaint, from the balance payable, (iii) appoint an Advocate Commissioner to inspect, verify with the aid of a qualified civil engineer and submit a report of the said flat, (iv) pay Rs.5,00,000/- for alterations to the internal partitions which the Opposite Party failed to do, as agreed, (v) pay Rs.5,00,000/- as compensation for the deficiency of service by the Opposite Party for failure to complete and handover a fully completed flat in all respects as per the Construction Agreement, dated 23.03.2011, (vi) pay Rs.5,00,000/- for the resultant mental agony and pain caused by such deficiency of service and (v) pay Rs.25,000/- as costs of the complaint.

 

             3. The 1^st Opposite Party filed a Version, wherein, among other things, it is stated thus:

             The 2^nd Opposite Party had entered into a Joint Venture Agreement with the 1^st Opposite Party on 14.01.2011 to develop the land measuring 4023 sq. ft. comprised in S. Nos.24/7 and 24/9, Okkiam Thoraipakkam Village, Tamabaram Taluk, bearing Plot Nos.6 & 7 Balaji Nagar.  As per the terms of the said Joint Venture Agreement, the 1^st Opposite Party is entitled to 45% of the land and the 2^nd Opposite Party to 55% of the land, on which, 8 flats were agreed to be constructed, out of which, four would be allotted to the 1^st Opposite Party and the remaining four to the 2^nd Opposite Party. Flat No.F1 in the First Floor, measuring 1073 sq. ft. along with 547 sq.  ft. undivided share and interest in the land, is the subject-matter of the complaint.  The complainant, the 1^st Opposite Party and the 2^nd Opposite Party had executed the tripartite construction agreement, dated 23.03.2011, in respect of the said flat.  As per the said agreement, the total cost of the flat is Rs.39,82,202/-, payable in various stages, as mentioned in clause-3 of the agreement.  As per clause-12 of the agreement, 12 months is the maximum period provided for completing the construction and handing over vacant possession, subject to the condition in clause-13 that possession will be handed over after 15 days of receipt of the entire payment. But, the complainant did not strictly adhere to the above said terms and conditions.  Further, it is the own admission of the complainant that he had paid only 70% of the amount, which is disputed.  During the course of construction, the complainant had made a request for certain changes, which are beyond the scope of clause-9 viz.., to re-model the interior structure, suiting to his requirement.  In order to satisfy the complainant, though the request made was not within the scope of clause-9, the 1^st Opposite Party undertook to make the changes and accordingly, submitted a quotation for Rs.48,000/-, which was not accepted by the complainant, who had negotiated and requested the Opposite party to agree for a lesser price.  For satisfying the complainant and to have a good customer relationship and also to get the project complete, the 1^st Opposite Party had agreed for Rs.8,000/-, thereby, he had to incur loss.  While the Project was about to be completed and ready for handing over possession to the flat owners concerned, the complainant had requested for additional changes.  Through an Email, dated 23.01.2012, while thanking for carrying out the alteration, he had requested for further modifications viz., certain changes in the existing brick work and altering the bathroom.  By Reply/Email, dated 31.01.2012, the 1^st Opposite Party had responded by stating that the same cannot be done at such matured stage of construction and thus, requested the complainant to carry out the same once the flat was handed over to him.   The complainant, through an Email, dated 31.01.2012, had requested to grant 3 days’ time for carrying out the changes on his own without putting the 1^st Opposite Party to loss, which is not at all contemplated in the agreement. Through an email, dated 04.02.2012, the 1^st Opposite Party had informed the complainant that, once the flat is completed, he can carry out the alterations, since execution of the same at that stage would disrupt the completion of the Project.  Simultaneously, the complainant was also reminded about clause-17 of the agreement, which prohibits him from giving technical instructions while the construction is in progress and also about clause-10,  specifying that the complainant should not proceed with interior design works such as wood/electrical works, before taking possession.  While so, through an email, dated 02.03.2012, by quoting clause-9 of the agreement, the complainant once again insisted for effecting additional changes, which were not permissible at such advanced stage.  By letter, dated 08.04.2012, he demanded payment of compensation by stating that the flat was not delivered within 12 months, as per clause-12 of the agreement.  This would clearly expose the back-door-tactics of the complainant waiting to get the alterations done even in violation of the agreement.  Having failed to pay the balance 30% of the cost for getting delivery of the flat, when called upon by an email dated 03.07.2012 to pay the balance of Rs.12,00,000/-, failing which, the sale deed would be cancelled by invoking clause-7 of the agreement; through a legal notice,  dated 01.12.2012, the complainant demanded to finish all pending works in respect of the flat, without asking for delivery of the flat.   While so, by reply, dated 04.12.2012, by reiterating the earlier stand, when the 1^st Opposite Party demanded the complainant for payment of the balance, failing which, the sale deed would be cancelled, in his letter, dated 15.12.2012, the complainant, while admitting that the balance was not paid, had stated that he did not know whether the construction was complete or not.  Since the demand for payment of the balance amount was raised only after completion of the flat, the failure in honoring payment on the part of the complainant virtually rendered cancellation of the sale deed itself, as such, no cause of action on the ground of deficiency in service has ever arisen to sue against the 1^st Opposite Party.  Accordingly, he prayed for dismissal of the complaint.

            

             4. While both the complainant and the 1^st Opposite Party filed their respective proof affidavits before the District Forum, the complainant marked 10 documents Exs.A1 to A10 and, on the side of the 1^st Opposite Party, Exs.B1 and B18 came to be marked. The 2^nd Opposite Party was set ex-parte.

`

             5. The District Commission, by the impugned order, dated 20.10.2015,  dismissed the complaint by holding that the Opposite Parties have not committed any deficiency of service and hence, the complainant is not entitled for any relief.   Aggrieved thereby, the present First Appeal is preferred by the complainant.

 

             6. Learned counsel for the appellant submits that, in terms of clause-9 of the construction agreement, by the email, dated 23.01.2002, the appellant sought for certain internal modifications such as changing the common bathroom to an attached one and the attached bathroom to a common one, but, the first respondent blatantly refused to accede to such request under the pretext that the construction was at matured stage.  Since the 1^st respondent proceeded with the construction without carrying out the alterations to the internal partitions and executed other works in a shabby manner and consequently, demanded payment of the entire balance through the email, dated 10.05.2012, the appellant, by reply/email dated 14.05.2012, pointed out the 1^st respondent’s failure to carry out the alterations, the shortcomings in the construction and also the remaining unfinished portion.   While so, the first respondent, instead of carrying out the obligations as per clause-9 in the construction agreement, threatened to cancel both the construction agreement and the registered sale deed for the undivided share.   According to the learned counsel, when the 1^st respondent himself has admitted that they were not in a position to carry out alterations to the internal partitions in the flat, violation of clause-9 is glaringly apparent, attracting the element of deficiency in service on the part of the 1^strespondent.  It is stated that the demand of the first respondent for payment of Rs.12,00,000/- towards balance is absolutely unjustified since the construction work was not virtually completed.   But, without properly considering this core aspect and also the facts that there was not even any categorical denial in the written version filed before the District Forum about the deficiencies listed in the complaint and that the first respondent has not placed any proof with regard to the assertion that ‘construction stage had matured’ thereby, further alteration was not possible, the District Forum erroneously dismissed the complaint and as such, the impugned order calls for absolute interference by this Commission, he ultimately pleaded.

 

             7. Countering the above submissions, learned counsel for the 1^st respondent would submit that, of course,  as per clause-9 of the Construction agreement, the appellant/complainant had the option to modify the internal partitions, change in flooring,  glazed tile/any other extra fittings, but, that shall be only at the cost of the appellant.   While so, the appellant had sought for certain changes which were beyond the scope of clause-9 in seeking to re-model the entire interior work.  However, in order to satisfy the appellant,  although the modifications sought for did not fall within the scope of clause-9 of the agreement, the 1^st respondent undertook to effect the alterations at the cost of Rs.8,000/- though the actual cost was Rs.48,000/-, thereby, the 1^strespondent suffered loss.  While so, at the verge of completion of the project and handing over of possession to the flat owners concerned, by the Email, dated 23.01.2012, the appellant, once again requested for further alterations by effecting changes in the existing brick work and altering the bathroom.  The said request could not be entertained owing to the fact that the project was at the matured stage and further, the appellant was requested carry out the same once the flat was handed over to him. Very often, by seeking for alterations, the appellant intended to directly interfere with the structural and technical specification of the building as a whole.  Since the 1^st respondent made it clear that the alteration sought to be done by the appellant was not feasible, as it would affect the entire project, by letter, dated 08.04.2012, with ulterior motives, the appellant demanded the 1^st respondent to pay compensation, stating that the flat was not delivered within  12 months as per clause-12 of the agreement.  When the 1^st respondent called upon him by letter, dated 04.12.2012, to settle the balance, failing which, the sale deed would be cancelled, by stating that he had no knowledge about the completion of construction, the appellant defaulted in honouring the agreement.  Hence, no case having been made out to entertain the prayer on the ground of deficiency in service, rightly, the District Forum dismissed the complaint, hence, the said order does not call for interference.

    

             8. Having regard to the rival submissions advanced on either side and the materials available on record,  the only question that needs to be answered is, as to whether the plea of the appellant/complainant is justified so as to issue a direction to the 1^st respondent for payment of  compensation, etc.,  as sought for.

            

         9. It is the main grievance of the appellant/complainant that, in terms of Clause-9 of the construction agreement, he had sought for certain internal modifications viz., changing the common bathroom to an attached one and the attached bathroom to a common one.  But, the first respondent went ahead with the construction without carrying out the above alterations sought for in terms of clause-9.  Apart from that, many shortcomings and deficiencies, as listed out in the complaint, were never corrected/rectified, thereby, clear deviation from the construction agreement by the 1^st respondent is apparent.  Per contra, it is the stand of the 1^st respondent that the request made by the appellant to re-model the interior work, costing Rs.48,000/-, was beyond the purview of clause-9 of the construction agreement, however, only to satisfy the appellant, they agreed to do it at the cost of Rs.8,000/-, thereby, they suffered loss. According to the 1^st respondent, since the act of the appellant in not coming forward to pay the balance sum for taking possession of the constructed flat clearly indicated that he failed to honour the agreement, the very complaint lacks bona fides particularly in regard to the allegation of deficiency in service.

 

             10.  With reference to the above contrary claims, it would be relevant to first look into the tripartite construction agreement under Ex.A1, dated 23.03.2011, in particular clause Nos.9 and 17 thereof (connected to the appellant herein/complainant, mentioning him as “Party of the Third Part”), which read as follows:-

           “9. That in the event of the PARTY OF THE THIRD PART desiring to alter or modify the internal partitions, change in flooring, glazed tiles and any other extra fittings shall be only at the cost of the PARTY OF THE THIRD PART and the Party of the Third Part shall pay the difference in cost in advance. “

           “17. THAT THE PARTY OF THE THIRD PART shall visit the site to look after the progress of work, but have no rights to hinder/supervise or give technical instruction on the progress of construction work over the property described…. “

A combined reading of the above two clauses make it clear that while, as per clause-17, the appellant has no right to supervise/give technical instructions on the progress of construction or to stall it, clause-9 specifies that any alteration/modification to the internal partitions, change in flooring, glazed tiles and any other extra fittings shall be only at the cost of the appellant and he shall pay the difference cost in advance.   While so, the case of the appellant being that, although he made specific pleas for modification to the internal partitions in terms of clause-9, without even caring to accede to those genuine pleas, the first respondent proceeded with the construction work, over which, the appellant cannot have any supervision in terms of clause-17 and ultimately, by stating that the construction was at the verge of completion, very conveniently, his requests were declined; the 1^st Respondent would claim that, for the works covered by clause-9, the appellant was always reluctant to spare the costs in advance and since he was repeatedly coming up with claims of modification one after the other which amounted to violation of clause-17, such demands could not be entertained owing to the fact that, by that time, the construction has reached the final stage.  To find out as to whether the appellant’s request in terms of clause-9 was made at the relevant time/basic stage of construction suitable to carry out the changes or it was purposely delayed due to the tactics of the 1^st respondent by taking shelter under clause-17 of the construction agreement, is a question of fact that cannot be gone into in summary proceedings, since it requires comprehensive adjudication based upon elaborate evidence by affording opportunity of cross-examination to the other side before appropriate civil court, where, the appellant can very well canvass other points raised by him viz., whether there was flawed design in the original plan of the 1^st respondent, whether there was failure to lay a pit in the place marked for a common bathroom to provide Indian-type closet when a sunken pit was provided in the attached bathroom which was not required at all for placing the western-type closet, whether or not the first respondent was conscious of the structural design that the pillars would come in the way of the proposed modification, whether there was deviation from the construction agreement on the part of the first respondent in not providing cupboards  in the bed-room with Cudappa Stones without shutters, as per schedule-D of the agreement & in not providing wash basin in the attached bathroom and more importantly about cost adjustments, etc.  Although the Report, dated 25.07.2019, of the Advocate Commissioner, appointed by this Commission subsequent to the orders, dated 22.04.2019, passed in CMP No.131 of 2019, as well as the Engineer’s Report, dated 24.06.2019, indicate that many deficiencies and defects need to be rectified, we refrain ourselves from discussing the same since we are afraid, any such exercise would again incidentally lead to disputed questions on fact.    For any wholesome adjudication, it is for the appellant to approach the civil court concerned, where the parties can examine/cross-examine the other side and adduce elaborate evidence to canvass/substantiate their respective claims.  Accordingly, we are not inclined to entertain the present Appeal.

             11. The First Appeal is dismissed with the observation that, for a wholesome adjudication, it is for the appellant to approach the civil court concerned, where the parties can examine/cross-examine the other side and adduce elaborate evidence to canvass/substantiate their respective claims.   No costs.

 

 

S.M.LATHA MAHESWARI                             R.SUBBIAH, J.

MEMBER                                                      PRESIDENT.

 

Index    :  Yes  / No.

ISM/SCDRC/Chennai/Feb/2022.