Date of Filing       : 07.10.2015

                                                                                                                                 Date of Disposal:  08.08.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR

PRESENT: THIRU.   J. JUSTIN DAVID., M.A., M.L.                            .…. PRESIDENT

                   TMT.      K.PRAMEELA. M.Com.,                                       …..MEMBER-I

                   THIRU:  D.BABU VARADHARAJAN., B.Sc., B.L.,              ….MEMBER-II

CC.No.45/2015

THIS THURSDAY THE 8^th    DAY OF AUGUST 2019

Mrs.R.Anusuya,

W/o.D.Ramamoorthy,

Plot No.226, Sri Om Nagar,

Thodukadu Village,

(Via) Sriperumubudur,

Thiruvallur Thulk & District.                                                           …… Complainant.

                                                                   //Vs//

M/s.Jain Estates,

Rep. by its proprietor Mr.Ashok Metha,

No.157, North Usman Road,

T.Nagar.

Chennai -17.                                                                                      ……...Opposite party.

This complaint is coming upon before us finally on 25.07.2019 in the presence of Mr.A.R.Poovannan, Counsel for the complainant and M/s.P.R.S.Baranivel and Mr.M.V.Seshachari, Counsel for the opposite party and having perused the both side documents and evidences, this Forum delivered the following:

ORDER

PRONOUNCED BY THIRU. J.JUSTIN DAVID, PRESIDENT.

This complaint is filed by the complainant U/S -12 of Consumer protection Act-1986 against the opposite party for a direction to furnish the completion certificate and to submit the acknowledgement of handing over possession to the complainant and to pay a sum of Rs.1,25,000/-paid by the complainant to the opposite party’s contractor to complete the construction work and to pay  a sum of Rs.1,36,450/- paid by the complainant as interest to the AXIS Bank on the delay made by the opposite party and to pay a sum of Rs.1,44,000/-paid by the complainant towards rent during the delayed period and to pay a sum of Rs.5,00,000/- towards compensation for causing mental agony, hardship and strain due to the deficiency in service  on the part of the opposite party and to pay a sum of Rs.25,000/- towards cost of this litigation to the complainant.

2. Brief averment in the complaint filed by the complainants is as follows:-

The opposite party is an absolute owner of the property measuring Acre 4.03 cents in No.136, Thodukadu Village, Thiruvallur Taluk, and he developed the property into house sites by name SRI OM NAGAR (Phase-II/5). The opposite party started selling the plots as Villas.  The complainant applied for an allotment of plot and villa and he has made a payment of Rs.50,000/- towards allotment on 07.01.2011.  The sale cum promoter agreement was entered between the parties on 06.04.2011. In the mean time, the complainant has paid a sum of Rs.5,70,000/- on 14.01.2011 and the plot was duly registered in the complainant’s name. The Axis Bank sanctioned the loan on 13.02.2012 and the complainant came to know that on 24.01.2012 itself Jain Estates/opposite party herein, raised a demand for Rs.10,00,000/- for foundation and lintel with the Axis Bank.  Further the complainant was shocked that the bankers on 04.04.2012 has sanctioned a sum of Rs.12,62,400/- over and above the demand raised by the opposite party. The complainant went to the opposite party’s site for inspection on 14.05.2012 and was shocked to found that the construction was not even up to the plinth level.  The complainant entered an agreement and paid the total sale consideration for the plot and also paid 90% of the construction costs, the complainant had no other option except to request the opposite party to complete the construction.  The complainant’s husband contacted Mr.Sanjay Metha over phone, he shouted at him that 90% is nothing and the complainant will have pay more money if the construction has to be completed soon. The complainant then requested the Axis Bank to know about the exact loan sanctioned and disbursed to the opposite party and the documents submitted by them for the said sanctioned amount on 10.08.2012.  The complainant received a copy of sale cum promoter agreement from the bank on 02.04.2013 never seen such a document before and while perusing the same she came to know that the opposite party had forged and fabricated the sale cum promoter agreement dated 06.04.2011.  The complainant lodged a complaint with the Axis bank on 08.04.2013 and the same was registered in complaint No.5723848.  On the date of inspection by the bank during May 2013 only 55% of the construction was completed and they have disbursed a sum of Rs.12,62,400/- to the builder on the basis of a demand received from the builder.  The bank officials in collusion with the opposite party have disbursed the amount to the opposite party.  There was no progress from the opposite party’s side even after receiving 90% of the total cost of construction.  The complainant by paying a sum of Rs.1,25,000/- to the opposite party’s contractor was able to finish the construction.  Because of the inordinate delay the complainant was forced to pay the interest to the bank and also lived in rental house.  Thus the complainant assessed the damages for a sum of Rs.4,35,450/- payable by the opposite party.  The complainant was put to great financial loss, mental agony and stress because of the delay in completing in construction. The complainant and her husband were very much put to great mental agony, hardship, physical and financial loss by the deficiency in service of the opposite party.  Thus the complainant is obliged to file this complaint for damage and compensation.

3. The brief contention of written version of the opposite party is as follows:-

This above case is hopelessly barred by limitation and on this score itself the same is liable to be dismissed in limine.  As per the own allegation of the complainant, she is in possession and enjoyment of the property from June 2013 onwards.  As per Sec.24-A of the Consumer Protection Act-1986 the above complaint ought to have been filed within a period of two years from the date on which cause of action had arisen.  The cause of action for the alleged complaint had arisen even prior to handing over of possession.  Therefore the complainant ought to have filed the above case within a period of two years atleast from June 2013 onwards.  The present complaint is filed during Sep.2015 is hopelessly barred by limitation and the above complaint is liable to be dismissed on this score itself. The complainant voluntarily and out of her own free will submitted application for availing loan from Axis Bank and the same was also sanctioned to her by Axis Bank.  The allegation that the Axis Bank sanctioned a loan on 13.02.2012 and the complainant came to know that the opposite party had raised a demand for Rs.10,00,000/- for foundation and lintel with the Axis Bank and it was shocking that a sum of Rs.12,62,400/- was sanctioned over the above the demand raised by the opposite party are all not true and correct. While submitting for loan application, it is the usual course of business practice that the amount of work done by the opposite party will be intimated to the banker to get funds.  Similarly such a demand was raised and funds were disbursed in two installments only after sanctioning of loan.  A sum ofRs.3,62,400/- was paid on 17.03.2012 and  a further sum of Rs.9,00,000/- was paid on 04.04.2012.  It was the complainant who had received the cheque from Axis Bank, T.Nagar branch and handed over the same to the opposite party. After receiving the said sum from Axis Bank, the opposite party had given due receipts to the complainant. The allegation that the opposite party had forged and fabricated the sale cum promoter agreement dated 06.04.2011 which was submitted to the Axis Bank is not true and correct.  Further allegation that the opposite party made a site inspection and found the fault is also not true and correct.  The allegation that during May 2013 only 55% of the construction was completed, that the bank officials in collusion with the opposite party have disbursed the amount to the opposite party, that in the reply the bankers have stated that they have requested the opposite party to complete the construction on priority basis is not true and correct. The complainant who had forged the signature of the opposite party in the sale cum promoter agreement dated 06.04.2011 and had submitted the forged one to the Axis Bank. The complainant had also given a letter to the opposite party stating that the entire work has been completed. The complainant had taken possession of the suit property during June 2013 and the complainant had not paid the balance amount of Rs.3,69,289/- due and payable by her.  When the opposite party demanded the said amount, the complainant started acting in a wayward manner. In order to avoid making payment to the opposite party, the complainant had lodged a false complaint with the police authorities and filed the above case.  The opposite party is prepared to issue completion certificate, provided the complainant pays the balance sum of Rs.3,69,289/- payable by her.  Without making payment of the said amount, the complainant is not entitled to insist for completion certification. Hence this complaint is liable to be dismissed.  Hence this complaint is liable to be dismissed.

4. In order to prove the case, on the side of the complainant, the proof affidavit submitted as their evidence and Ex.A1 to Ex.A32 were marked.  While so, on the side of the opposite party, the proof affidavit submitted as his evidence and Ex.B1 to Ex.B3 were marked and also oral argument adduced on both sides.

5. At this juncture, the point for consideration before this forum is:-

(1)Whether the complaint is barred by limitation?

(2)Whether there is any deficiency in service on the part of the opposite party?

(3) Whether the complainant is entitled for completion certificate from the opposite party?

(4) Whether the complainant is entitled for compensation and cost from the opposite party?

(5) Whether the complainant is entitled for other reliefs as claimed in the complaint?

(6) To what other reliefs, the complainant is entitled?

6. Point No.1:-

The opposite party in their written version contended that the alleged complainant is in possession and enjoyment of the property from June 2013 onwards.  As per Section 24-A of the Consumer Protection Act -1986, the complainant ought to have filed within a period of two years on which cause of action had arisen and the complainant ought to have filed within a period of two years from 2013 onwards.  But the complainant filed this complaint during September-2015 and therefore the complaint is barred by limitation and therefore this complaint is to be dismissed. Section 24-A of the Consumer Protection Act -1986 reads as follows:-

“(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-Section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the Nation Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reason for condoning such delay.”

Hence the Consumer Complaint ought to be filed within two years from the date on which cause of action has arisen.  In this complaint the complainant took possession of the property during June 2013. The complainant in Para No.12 of the complaint stated that the complainant is in lawful possession and enjoyment from June 2013.  The complainant might have noticed the defects in the construction only after taking possession of the property.  Further the opposite party has not handed over the completion certificate to the complainant.  According to the complainant, the opposite party has not completed the construction but the complainant has taken possession of the property without getting completion certificate from the opposite party.  Further one of the prayers in the complaint is directing the opposite party to furnish the completion certificate.  As per construction agreement the opposite party has to complete the construction within 11 months from the date of execution of the construction agreement.  But the opposite party failed to complete the construction work within stipulated time mentioned in the construction agreement.  It is the duty of the opposite party to issue completion certificate to the complainant after completing the construction, but the opposite party failed to hand over the completion certificate to the complainant and therefore it is only a continuing  cause of action.  The cause of action arises in the month of June 2013 and continued till the completion of the work by the opposite party and to furnish the completion certificate to the complainant and therefore the above allegation made by the opposite party that the complaint is barred by limitation is unsustainable. Thus the point No.1 is answered accordingly.

7. Point No.2 to 4:-

The complainant is the purchaser of the flat and the opposite party is the owner cum builder.  It is admitted by both the parties that the complainant purchased a flat from the opposite party on 24.01.2011.  Ex.A2 is the copy of sale deed dated 24.01.2011.  The complainant purchased the flat No. 226 at Sri Om Nagar in survey No.226/2C, 226/2E, 226/3A Thodukadu Village, Thiruvallur Taluk for Rs.1,20,000/-from the opposite party.  Thereafter the complainant and the opposite party had entered into sale cum promoter agreement on 06.04.2011.  Ex.A3 is the copy of sale cum promoter agreement.  The opposite party agreed to construct the house at the cost of Rs.14,37,600/-, cost of land is Rs.1,20,000/-, development cost is Rs.4,80,000/- and therefore the total cost of land and building are Rs.20,37,600/-.  The opposite party agreed to complete the entire consideration and hand over the possession of the residential villa within 11 months from the date of starting the construction.  Clause 5 of the sale cum promoter agreement is as follows:-

“The promoter agrees to complete the entire construction and to hand over possession of the said residential villa within 8 months from the date of starting the construction with a grace time of three months from the date of these presents, subject to force majeure clause and subject to the building work not being delayed or suspended due to unexpected or unavoidable circumstances, shortage of water and commodities like steel, cement and other building material, civil commotion, riots, acts of God, orders of court, statutes, notification, labour problems etc.,  or delay in getting electrical or water or sewer connections or excessive rain beyond the control of the promoter.”  Further the complainant paid a sum of Rs.6,00,000/- as advance before execution of the sale cum promoter agreement and agreed to pay 5,00,000/- on completion of foundation, Rs.5,00,000/- on completion of lintel, Rs.3,47,600/- on completion of roof and Rs.90,000/- on handing over the possession.  Therefore the complainant has to pay a balance amount of Rs.14,37,600/-after execution of sale cum promoter agreement.

8. The opposite party has written a letter to the complainant on 24.01.2012 stating that the foundation and lintel stage is completed and requested the complainant to pay Rs.10,00,000/- immediately.  Ex.A4 is the copy of letter written by the opposite party to the complainant. Therefore the opposite party has completed the lintel and foundation work in the month of January 2012.  Therefore the opposite party might have started the construction in the month of February 2012 itself.  As per Ex.A3 the construction must be completed within 11 months from the date of starting the construction work and the possession must be handed over to the complainant within 11 months from the date of starting the construction work. The opposite party started the construction work in the month of February 2012 and therefore the construction ought to have completed before January 2013, but the opposite party failed to complete the construction of the building within stipulated time mentioned in the sale cum promoter agreement. As per Ex.A3 the total cost of construction and land is Rs.20,37,600/-.  The complainant has paid 6,00,000/- as advance for construction of the building before execution of sale cum promoter agreement dated 06.04.2011 and the balance amount payable by the complainant to the opposite party is Rs.14,37,600/-as on 06.04.2011.

9. The complainant had applied for loan at AXIS Bank and the Bank sanctioned the loan amount on 13.02.2017.  Ex.A5 is the copy of letter issued by the Axis Bank.  As per Ex.A5 Axis Bank sanctioned the loan of Rs.17,00,000/-.  The opposite party has received a sum of Rs.12,62,400/- from the Axis Bank on 04.04.2012.  The opposite party also admitted in the written version stating a sum of Rs.3,62,400/- on 17.03.2012 and a sum of Rs.9,00,000/- on 04.04.2012 has been received by way of cheque from the Axis Bank, T.Nager Branch.  Therefore the opposite party clearly admitted the receipt of 12,62,400/- before 04.04.2012 and hence the complainant paid Rs.12,62,400/- out of balance amount of Rs.14,37,600/-.  After reduction of Rs.12,62,400/- has to pay the balance amount of Rs.1,75,200/- to the opposite party.  The complainant has paid the balance amount to the opposite party as on 04.04.2012 Rs.12,62,400/- instead of Rs.14,37,600/- as stated in the Ex.A3.  The opposite party has not mentioned in Ex.A3 the cost of land of Rs.1,20,000/- which was already paid by the complainant to the opposite party at the time of execution of sale deed.  So, the actual amount payable by the complainant as on 06.04.2011 is Rs.14,37,600/-The complainant has paid a total sum of Rs.13,82,400/- and the balance amount payable is  Rs.55,200/-.  The balance amount payable only at the time of handed over the possession.  The opposite party has not completed the construction and failed to hand over the possession of the building with completion certificate.  Therefore the question of payment of balance amount does not arise.

10. According to the complainant, the complainant has taken possession of the property in an incomplete stage and the complainant himself completed the construction by spending more than Rs.1,25,000/-to the contractor.  The complainant also filed documents to show that he spent some amount for completing the construction and therefore it is very clearly that the opposite party has not completed the construction as per the sale cum promoter agreement.  Further the opposite party has not handed over the possession of the building within the stipulated time as agreed between both the parties which amounts to deficiency in service. The complainant has sent many e-mail and letter to the opposite party for completing the construction and handed over the possession, but in spite of repeated reminders the opposite party failed to complete the construction and handed over the possession in time.  Further the opposite party has not furnished the completion certificate to the complainant, because of the deficiency in service on the part of the opposite party, the complainant suffered mental agony and financial loss.  Further the opposite party is liable to furnish the completion certificate to the complainant.  Under these circumstances there is deficiency in service on the part of the opposite party the complainant is entitled for completion certificate from the opposite party and the complainant is entitled for compensation and cost. Thus the points No.2 to 4 are answered accordingly.

11. Point No.5:-

The complainant in the complaint alleged that the opposite party is liable to pay Rs.1,36,450/-towards interest paid by the complainant to the Axis Bank, directing the opposite party to pay a sum of Rs.1,44,000/-towards rent paid by the complainant and directing to pay a sum of Rs.1,25,000/- paid to the contractor to complete the construction.  With respect to payment of contractor, the complainant is liable to pay the remaining balance amount of Rs.55,200/- to the opposite party since the opposite party has not completed the construction work the complainant has not paid the balance amount and in turn he paid some amount to the contractor and completed the construction therefore the complainant is not entitled for a sum of Rs.1,25,000/- paid to the contractor to complete the construction work.

12. With respect to the payment of interest to Axis Bank and payment of rent for delay period, the complainant has not filed any acceptable documents to prove the above averment.  The complainant has paid a sum of Rs.12,62,400/- to the opposite party after getting loan from the Axis Bank.  The said amount was paid to the opposite party as per the agreement.  Further the complainant is liable to pay the loan amount with interest for which the opposite party is no way responsible.  Since this forum already granted compensation for delay in completing the construction, the complainant is not entitled for interest paid to the Axis Bank towards loan and also not entitled for any rent during delayed period.  Further the complainant has not filed any documents to show that he paid rent for the delayed period.  Under these circumstances, the complainant is not entitled for any other reliefs as claimed in the complaint.  Thus the point No.5 is answered accordingly.

13. Point No.6:-

In the result, this complaint is allowed in part.  Accordingly, the Opposite Party is hereby directed to furnish the completion certificate to the complainant within two months from the date of receipt of the copy of this order. Further the opposite party is directed to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for causing mental agony and financial loss to the complainant due to the deficiency in service on the part of the opposite party and also to pay a sum Rs.10,000/-(Rupees ten thousand only) towards cost of this litigation to the complainant. With respect of other reliefs, this complaint is dismissed.

The above amount shall be payable by the opposite party within two months from the date of receipt of the copy of this order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 08^th August 2019.

     -Sd-                                                    -Sd-                                                      -Sd-

MEMBER-II                                     MEMBER-I                                           PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER-II                                     MEMBER-I                                           PRESIDENT