Tamil Nadu

South Chennai

CC/299/2019

Mr. Sriram Dharmapadam - Complainant(s)

Versus

m/s Fortune Infra and Constructions Pvt.Ltd - Opp.Party(s)

M/s S.S. Rajesh

06 Mar 2023

ORDER

                                                 Date of Complaint Filed : 12.11.2019

                                                  Date of Reservation      : 21.02.2023

                                                  Date of Order               : 06.03.2023

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.299 /2019

MONDAY, THE 6^th DAY OF MARCH 2023

Mr. Sriram Dharmapadam,

S/o. A.V. Dharmapadam,

Flat 3, “Krishna Apartment”,

U-91, Anna Nagar,

Chennai – 600 040.                                                                                                                     ... Complainant                

..Vs..

M/s. Fortune Infra and Constructions Pvt Ltd.,

Represented by its Director Mr.Sudhan,

No.2, Guna Towers,

North Boag Road, T.Naga,

Chennai – 600 017.                                                                                                               ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. S.S.Rajesh

Counsel for the Opposite Party       : M/s. V.Suresh Kumar

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and upon treating the written arguments as oral arguments of Opposite Party on endorsement made by the Opposite Party,  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 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party to pay a sum of Rs.7,31,445/- being the compensation for the delay in handing over the project caused by the Opposite Party as per the clause 7 of the Construction Agreement dated 26.09.2014 and registered as document No.6587 of 2014 before SRO Velacherry and to pay a sum of Rs.1,88,760/- being the rental loss incurred by the Complainant from 14.12.2018 till date and to pay a sum of Rs.5,00,000/- for the mental agony caused by the Opposite Party.

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

The Complainant being an NRI had contacted the Opposite Party for purchase of a flat in their project “Swastika”. On assurance by the Opposite Party that they would complete the project well within the time limit the Complainant believing the words of the Opposite Party had purchased a flat in apartment No.B104, 2^nd floor, B Block, measuring to an extent of 1573 sq.ft of built up area along with a stilt car parking towards total sale consideration of Rs.72,96,940/-. As per Clause 7 of the Construction Agreement dated 26.09.2014 registered as document No.6587/2014 before SRO, Velacherry entered between the Complainant and the Opposite Party, the Opposite Party agreed to complete the Construction within a time span of 18 months with a grace period of 3 months that being the case, the Construction ought to have been completed latest by July 2016. Further the Opposite Party had agreed to pay a sum of Rs.15/- per sq.ft rent per month towards failure in handing over the apartment to the Complainant. To his utter shock and dismay the Opposite Party did not complete the apartment as promised and delayed the project far beyond the originally scheduled time. The Complainant submitted that whenever he approached Opposite Party for handing over the apartment the Opposite Party made false assurance of quick handover but delayed the handing over of the apartment. Thereafter with a delay of more than 2.5 years the Opposite Party handed over one set of keys to the Complainant on 14.12.2018. The Opposite Party handed over the apartment without completing the work which denied the Complainant the benefits of even letting out the apartment for tenancy. The fact that the lift was promised to be a part of construction was not ready inspite of the assurance made by the Opposite Party, because of which the Complainant was not able to put the property to proper use and thus resulting in huge loss. The Complainant was constrained to issued legal notice on 16.08.2019 claiming compensation from the Opposite Party and to install the lift. Though the notice was received by the Opposite Party there was no response. Hence the complaint.

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

The Opposite Party submitted that as per the Construction Agreement registered as Document No. 6587/2014, dated 26.09.2014, wherein they have agreed to hand over the apartment in 18 months from the date of agreement with a grace period 3 months. The allegation that the construction of the apartment was completed after 2 ½ years is totally false and misconceived. The apartment was completed by September 2016. The apartment was ready for occupation and the Complainant has already collected his apartment key and the Opposite Party had informed that they were waiting for the payment to initiate the Lift commissioning since the Lift erection was not included in the construction agreement nor in the approved plan. All the minor works had been completed as per the specifications of Complainant and as a goodwill the Opposite Party had nearly spent more than Rs.5,00,000/- for the inner wardrobe for the apartment which was not included in the construction agreement, the Opposite Party submitted that the Complainant was with full satisfaction while receiving the keys for the apartment. Further submitted that as per the ledger account there is an outstanding due of Rs.7,72,665/- by the Complainant for the apartment, the Opposite Party is ready to instal the lift provided the Complainant pays the actual lift cost Rs.7,67,000/- directly to the lift manufacturing company. Having handed over the flat, and the Complainant, is not utilzing the flat premises for his stay, but to rent it out, the EB, Consumer No.092100172151, the Metro water and the Corporation Tax had been assessed in the name of the Complainant would go to say that the Complainant apartment is ready for possession without any delay. The Opposite Party is ready and willing to give NOC Letter to the Complainant if the Complainant settles the outstanding dues of Rs 7,72,665 as per the ledger account to the Opposite Party. Hence prayed to dismiss the complaint.   

4. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as  Ex.A-1 to Ex.A-8. 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-7.

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:

6.    Upon perusal of Ex.A-4, it is evident that the Complainant had entered into Construction Agreement dated 26.09.2014 with the Opposite Party, whereby the Opposite Parties had agreed to construct a residential flat in Apartment No.B104, 2^nd Floor, B Block of an extent of 1573 sq.ft  of super built up area including common area along with a covered stilt car parking for a total consideration of Rs.72,96,940/-. As per Ex.A-5, the Complainant  had purchased the undivided share of land measuring to an extent of 766 sq.ft by a registered Sale Deed dated 26.09.2014, bearing Document No.6588/2014, in SRO Velacherry for Sale Consideration of Rs.32,97,000/-. The payments made by the Complainant to the Opposite Parties is evident from Ex.A-1, Ex.A-2, Ex.A-3, Ex.A-6.  Clause 7 of the Construction Agreement reads  as follows:

“The Promoters agrees to complete the construction of the said Apartment within 18 months from the date of signing of this agreement with a grace period 3 months. In case the promoter commits default on handing over the apartment in the above specified time, they will be liable to pay Rs.15/- per sq.ft rent per month for Specific Performance Act”.

7.     The Construction Agreement was entered on 26.09.2014. The 8 months time period to complete the Construction along with the grace period of 3 months expired by June 2016. The Opposite Party ought to have handed over the premises by June 2016. Though it was averred in the Written Version that the apartment was completed by September 2016, the Complainant had contended that the apartment was handed over only  on 14.12.2018. However from Ex.B-1 it is seen that on 23.06.2017 the Opposite Party had intimated the Complainant about the readiness of the apartment.  Corporation Assessment and Metro Water Bill stands in the name of the Complainant which is prior to the alleged handing over on 14.12.2018. Hence the contention of the Complainant that the apartment was handed over only on 14.12.2018 could not be accepted. As regards the contention of non provision of lift by the Opposite Party there is no agreement in writing as to the provision of lift. The Opposite Party had submitted that they would provide lift on payment of the cost of lift by the Complainant which need not be considered at this stage as the Complainant’s financier, State Bank of India had sold the property to third person by exercising the provisions of under Securitisation and Reconstruction of financial Assets and Enforcement of Security Interest Act, 2002, as evident from Ex.B-7. However the Sale was effected on 03.06.2022, by the Bank after filing of this complaint.

8.     In view of the above discussions, this Commission is of the considered view that the Opposite Party had agreed to hand over the apartment by June 2016 as evident from Ex.B-1. However the Opposite Party had not handed over the apartment till June 2017 and there was a delay of 12 months in handing over the apartment, though the Complainant had made payments in the year 2014 itself. Hence the delay in handing over the apartment amounts to deficiency in service. Accordingly, Point No.1 is answered.

Point Nos.2 and 3:

9.     As discussed and decided Point No.1 against the Opposite Party, the Opposite Party is liable to pay a sum of Rs.2,83,140/- being the compensation as per clause 7 of the Construction Agreement dated 26.09.2014 registered as document No.6587/14 before SRO, Velacherry for the delay in handing over the flat by the Opposite Party and to pay a sum of Rs.10,000/- for the deficiency in service and mental agony caused by the Opposite Party along with a sum of Rs.5,000/- towards cost of the litigation 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.2,83,140/- (Rupees Two Lakh Eighty Three Thousand One Hundred and Forty Only) being the compensation as per clause 7 of the Construction Agreement dated 26.09.2014 registered as document No.6587/14 before SRO, Velacherry for the delay in handing over the flat by the Opposite Party and to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) for the deficiency in service and mental agony caused by the Opposite Party along with a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of the litigation to the Complainant within 8 weeks  from the date of receipt of the order, failing which the above said amount of Rs. 2,83,140/- shall carry interest @6% p.a from the date of the  order till the date of realization.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

          In the result this complaint is allowed in part. 

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 6^th March  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	21.02.2014	Cheque payment Receipt issued by the Opposite Party to the Complainant
Ex.A2	25.02.2014	Cheque payment receipt issued by the Opposite Party to the Complainant
Ex.A3	14.08.2014	Demand Draft issued by the Complainant to the Opposite Party
Ex.A4	26.09.2014	Construction agreement entered into between the Complainant and the Opposite Party
Ex.A5	26.09.2014	Deed of absolute sale entered into between the Complainant and Opposite Party
Ex.A6	26.09.2014	Cheque payment receipt issued by the Opposite Party to the Complainant
Ex.A7	16.08.2018	Legal notice issued by Complainant to the Opposite Party
Ex.A8	-	Email communication between the Complainant and the Opposite Party

 

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

 

Ex.B1	23.06.2017	Handing over letter
Ex.B2	13.08.2018	Metro water bill
Ex.B3	19.08.2019	Electricity bill
Ex.B4	23.01.2018	Corporation assessment
Ex.B5	03.12.2019	Ledger account details
Ex.B6	15.09.2019	Email communication
Ex.B7	-	Sale Deed

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT