Date of Filing : 14.03.2017
Date of Disposal: 27.05.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. J.JAYASHANKAR, B.A, B.L. ..… MEMBER-I
THIRU P.MURUGAN, B.Com., ….. MEMBER-II
CC. No.28/2017
THIS FRIDAY, THE 27th DAY OF MAY 2022
G.Gopinathan,
S/o.P.Govinda Panikar,
Residing at Flat SH53/3,
1st Floor, Aswini Flats,
Korattur, Chennai – 600 080. .....Complainant.
//Vs//
M/s.Greenway Homes,
Represented by its Managing Director,
V.M.Vijayakumar,
No.965 &966, H Block,
24th Street, Thangam Colony,
Anna Nagar West,
Chennai -600 040. .........Opposite party.
Counsel for the complainant : Mr.G.Prakash, Advocate.
Counsel for the opposite party :M/s.S.Sathyaraj, Advocate.
This complaint is coming before us on various dates and finally on 23.05.2022 in the presence of Mr.G.Prakash, Counsel for the complainant and upon hearing the arguments of the complainant and upon perusing the documents and evidences of both parties, this Commission delivered the following;
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant U/S 12 of the Consumer Protection Act, 1986 seeking direction to the opposite party to pay a sum of Rs.4,53,000/- for poor construction materials used by the opposite party and for loss suffered by the complainant due to unfair trade practice of the opposite party and to pay cost of this complaint.
Summary of facts culminating into complaint:-
The present complaint has been filed alleging deficiency in service against the opposite party/Builder for the following reliefs;
To pay Rs.4,53,000/- to the complainant for poor construction materials used by the opposite party and for the loss suffered by the complainant due to the unfair trade practice of the opposite party;
To pay the cost of the complaint and pass such other or further order as this Hon’ble Forum may deem it fit on the circumstances of this case and thus render justice;
The complainant who is the absolute owner of the property in Flat No.5, HIG, C Type, First Floor, Block No.53, Aswini Flats, Korattur, Chennai -80 comprising in Survey No.1293/2 part, Korattur Village, Thiruvallur District purchased by the complainant by virtue of registered Sale Deed Dated.31.08.1999 bearing No.No.2304/1999 on the file of SRO, Villivakkam and along with other flat owners had entered into a Joint Development Agreement with the opposite party on 28.10.2013. The complainant and the other flat owners vacated the premises soon after the joint development Agreement and handed over the flats to the opposite party for demolition and reconstruction. The opposite party promised to complete the construction within 15 months from the date of handing over possession and also promised to pay Rs.10,000/- towards additional rents until the construction was over and hence time was essence of the contract. The opposite party also promised to use quality materials for construction. However, dispite the agreement the opposite party failed to keep up its commitments and possession was handed over much belatedly and in July 2015 the complainant out of necessity occupied the flat in a semi furnished stage. The complainant intimated the opposite party about the remaining works to be done by them with respect to EB connection, Metro Water connection, Common area pumps, CCTV Camera, Kitchen Chimney, Bore Well etc. But the opposite party failed to provide and complete the requirements and the complainant was made to spend out of his own money amounting to Rs.53,000/- besides the loss of 2,00,000/- towards monthly rents paid by him due to the delayed delivery. On a notice sent by the complainant to the opposite party, he made a rival claim for Rs.5,60,000/- for certain additional works done by him. Thus the complaint was filed for the reliefs as mentioned above.
Defense of the Opposite Party by way of Written Version:-
The opposite party filed version disputing the allegations in the complaint contending interalia that the complaint is barred by limitation and they never created any violation to the conditions covenanted in the Joint Venture Agreement dated 28.10.2013. The opposite party submitted that it had completed the works such as EB connection, Metro water connection and common area pumps connection etc. Apart from the agreed monthly rental, the complainant received Rs.5,05,000/- against Rs.3,00,000/- from the opposite party as free money. The opposite party has handed over the premises within the stipulated time in the month of November 2014 and the flat was ready to occupy in the month of December 2014 and hence the opposite party stopped paying the monthly rental to the complainant. The opposite party submitted that he had paid around Rs.5,60,000/- to the complainant and the complainant is liable to repay the excess payment of Rs.2,05,000/- received from the opposite party and also the additional work expenses of Rs.31,450/-. Thus also alleging that there is no averment in the complaint with regard to the poor construction materials used, the opposite party sought for the dismissal of the complaint.
Complainant filed proof affidavit and submitted documents marked as Ex.A1 to 11.
On the side of opposite parties proof affidavit was filed and documents marked as ExB1 and B2 were submitted by them.
Point for consideration:
Whether the complainant is successful in proving the alleged deficiency in service on the part of the opposite party and if so what relief he is entitled to?
Point:
Documents Ex.A1 to A11 were filed by the complainant in proof of his alligations and on perusal of the same the following facts emerge;
Sale Deed of the complainant dated 31.08.1999 was marked as Ex.A1 to show that the flat given for promotion was purchased by him;
Joint Development Agreement dated 28.10.2013 was marked as Ex.A2 wherein both parties agreed for demolition and reconstruction and the terms and conditions were found mentioned in the agreement;
Letter issued by the complainant dated 24.06.2016 and acknowledgement card were marked as Ex.A3 &Ex.A4;
Letter issued by the complainant dated 05.08.2016 and acknowledgement card were marked as Ex.A5 &Ex.A6;
Lawyer’s notice dated 21.09.2016 and the reply notice given by the opposite party were marked as Ex.A7 and Ex.A8;
f) Material Purchase Receipt dated 15.12.2014 was marked as Ex.A9;
g) Retail Invoice dated 25.12.2014 was marked as Ex.A10;
h) Receipt with translated copy dated 17.05.2015 was marked as Ex.A11;
The documents Ex.B1 and B2 filed on the side of opposite party and the same were perused;
Bank Statement and Demand Draft dated 28.10.2013 were marked as Ex.B1 and Ex.B2;
An Advocate Commissioner appointed along with a qualified Civil Engineer who inspected the property had filed his detailed report which document was marked as Ex.C1;
Heard the oral arguments adduced on the side of the complainant.
The opposite party failed to appear for oral arguments in spite of sufficient time given for the same. However, they have filed written arguments which was treated by us as oral agurments and considered for the disposal of the complaint on merits.
The crux of the arguments advanced on the part of the complainant is that there is delay in handing over the completed construction after the demolition and reconstruction is carried out by the opposite party and for the delay the complainant demanded the opposite party a sum of Rs.10,000/- towards additional rent till the flat is handed over for occupation. Further it is argued that in July 2015 the complainant was forced to occupy the semi furnished flat and though agreed, works such as Electricity Board connection, Metro Water connection, Common area pumps etc. CCTV Camera, Kitchen Chimney, Intercom connection, Air Conditioner in Master bed room, Solar power back up, bore well, patching up the cracks, change of tiles in bath room as well as in the other rooms and closets in the toilets etc., were not carried out by the opposite party even after repeated demands and the complainant was made to spend around Rs.53,000/- for carrying out those necessities and also had a loss of Rs.2,00,000/- by way of monthly rents due to delayed possession. It is also argued that contrary to the agreed terms the opposite party has come out with the defence that the complainant is entitled to get benefit under Plan 2 mentioned in the Joint Venture Agreement page 16 and therefore entitled only for five month rent and free money of Rs.3,00,000/-. Thus arguing that the documents clearly shows that there is an apparent non- performance of the contract on the part of the opposite party the complainant sought that the complaint has to be allowed.
The summary of the written arguments by the opposite party is that as per the complainant, the allegations as to poor construction material was raised for the first time and no pleadings with respect to the same was found in the complaint. It is submitted that the opposite party had completed the construction in the month of November 2014 and in December 2014 the opposite party handed over one set off keys to the complainant and requested to take possession but the complainant refused the same requesting for some additional alteration works. It is specifically submitted that apart from the agreed monthly rental amount this opposite party had paid a sum of Rs.5,05,000/- to the complainant which could be ascertained by perusing the bank statement filed by the complainant. Further as per request of the complainant, the opposite party made some additional work in the said flat for which the complainant has to pay a sum of Rs.31,450/- to the opposite party.
The details of the work and expenses are as follows:
S.No. Details of work Expenses
1 Teak Wood Main Door Rs.8,000/-
2 Wash Basin White Rs.900/-
3 Western Classet White Rs.2,800/-
4 Hall Tiles Rs.15.000/-
5 Bathroom Tiles Rs.4,750/-
Total Expenses Rs.31,450/-
Thus the opposite party submitted that he had made expenses as mentioned above believing the promises made by the complainant for payment of the said amounts towards the additional works as required by the complainant. The details of the payment made by the complainant was also provided in the written argument. The total amount comes to Rs.5,60,000/- whereas the complainant is entitled only for Rs.3,55,000/- Hence the opposite party submitted that the complainant is liable to refund the excess payment of Rs.2,05,000/- and the expenses for additional work of Rs.31,450/- totalling an amount of Rs.2,36,450/-. The opposite party further submitted that the damages claimed by the complainant is erroneous and sought for dismissal of the complaint.
We have perused the pleadings and materials submitted by both the parties, we also persued the report filed by the Advocate Commissioner along with the Engineer‘s Report. It is the specific case of the complainant that poor construction materials was used by the opposite party/Builder in the construction and the completed flat was handed over belatedly. With regard to the first allegation poor materials were used by the opposite party we find that no sufficient evidence was produced by the complainant in proof of the same. The Advocate Commissioner’ Report filed is not sufficient to hold that the construction material is poor as there is no specific finding in the report. The Advocate Commissioner has given the report as follows;
“At the time of my inspection, I have seen the fully furnished house with Sofa set, cot, bureau, Fridge, Air conditioners Etc. as shown in my rough sketch. I also noted that I have seen cracks in hall wall, Master bed room walls, Balcony walls and Kitchen service area walls as shown in my rough sketch. I submit that there was no metro water connection in the property. I have not seen the kitchen chimney in the kitchen. I also noted that there was no CCTV camera in common area; no Common area; no common area pumps in common area, no intercom connection, no solar power back up on the above flats. The EB Board is in ground floor near the steps. I also seen there was one well and one bore well. Both are closed. I had also seen the lift on the side of eastern side of petitioner’s Flat, F4 on West, Common Passage on North”.
Further It is also seen that the PWD Engineer who inspected the flat along with the Advocate Commissioner had stated that the construction was deviated from the original plan and has also enclosed a copy of the plan. Further it is seen that he also informed that the ¨EB Connection for Metro Water Connection, Common area pump etc., CCTV Camera, Kitchen Chimney, Intercom Connection, Air condition in Master Room, Solar Power backup etc., to be evaluated by the Executive Engineer, PWD, Electrical Division-1, Chepauk, Chennai-5“. However, no efferts was taken by the complainant to approach the Executive Engineer PWD for getting a report with regard to the materials used by the opposite party for construction. Hence it is requested that the above subject may please to address to the Executive Engineer, PWD, Electrical Division-1, Chepauk, Chennai -5.
Therefore, when it is the specific case of the complainant that poor construction materials was used by the opposite party for construction there is no specific supporting materials to substantiate the said allegation and to hold that the opposite party had committed deficiency in service. With regard to the allegation about the delayed delivery the complainant had not produced any completion certificate or handing over letter issued by the opposite party to show that possession was handed over belatedly as it was the specific submission by the opposite party that the construction was completed in the month of November 2014 and the complainant was requested to take possession in December 2014. In such circumstances we are of the view that the complainant has failed to prove his case. Both the llegations raised by the complainant towards belated delivery and poor construction materials used remains not proved. The opposite party also submitted that the complainant was paid extra amount towards free money and the complainant is liable to pay for the additional works done by them. In such circumstances when there are contra demands with regard to payment of money to be made by both parties we feel that the issues between the parties cannot be resolved by this commission in a summary manner as it requires lot of evidences and examination of witnesses which is possible only before a Civil Court. Hence we hold that the complainant was unsuccessful in proving the deficiency in service on the part of the opposite party and hence not entitled to any reliefs. Considering the facts and circumstances we order no cost in this complaint.
In the result, this complaint is dismissed without cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 24th day of May 2022.
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MEMBER-II MEMBER-I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 31.08.1999 Sale Deed of Complainant. Xerox
Ex.A2 28.10.2013 Joint Development Agreement. Xerox
Ex.A3 24.06.2016 Letter issued by the complainant. Xerox
Ex.A4 27.06.2016 Acknowledgement Card. Xerox
Ex.A5 05.08.2016 Letter issued by the complainant. Xerox
Ex.A6 08.08.2016 Acknowledgement Card. Xerox
Ex.A7 21.09.2016 Lawyer’s Notice. Xerox
Ex.A8 ……………… Reply Notice. Xerox
Ex.A9 15.12.2014 Material Purchase Receipt. Xerox
Ex.A10 25.12.2014 Retail Invoice. Xerox
Ex.A11 17.05.2015 Receipt with translated copy. Xerox
List of documents filed by the oppostie party:-
Ex.B1 .............. Bank Statement with details. Xerox
Ex.B2 28.10.2013 Demand Draft. Xerox
List of documents filed by the Advocate Commissioner:-
Ex.C1 19.07.2019 Advocate Commissioner’s Reports Original
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MEMBER-II MEMBER-I PRESIDENT
