Tamil Nadu

South Chennai

CC/92/2021

Mr.V.S.Prasanna Varathan, Mrs. S. Amurudhavalli - Complainant(s)

Versus

M/s K.P Developers and 6 others - Opp.Party(s)

Mr. J. Kiran Kumar

12 Apr 2023

ORDER

                                                       Date of Complaint Filed :31.12.2020

                                                      Date of Reservation      : 28.03.2023

                                                       Date of Order               : 12.04.2023

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. 92/2021

WEDNESDAY, THE 12^thDAY OF APRIL 2023

1. Mr. V.S.PrasannaVarathan,

    S/o. S.V.Seshan,

 

2. Mrs. S.Amurudhavalli,

 

   Both are residing at No.46/3, Agraharam,

   Upparpatti, Theni District,

   Tamil Nadu, India.

 

   Presently residing at

   Flat No.41, Building 1017, Road 1813,

   Hoora, Manama,

   Road 1813, Kingdom of Bahrain.

 

   Both represented by their power of attorney

   (Dated 24.11.2015 adjudicated before Joint SRO –1 Chennai South Doc.            

   No.2664/2015)

   Mr.Sridharan S/o. S.Ramabhadran,

   Residing at B-4, Anugraha Apartments,

   Parameswari Nagar III Street,

   Adayar, Chennai 600 020.                                                                                                   ... Complainants

 

..Vs..

 

1. M/s. KP. Developers, (Partnership Firm, Rep.by its Managing Partners)

    No.36, Old No.157, 1^st Floor, Eldams Road,

    Alwarpet,Chennai-600 018.

 

2. M/s. KP. Estates, (Partnership Firm,Rep.by its Managing Partners)

    No.36, Old No.157, 1st Floor, Eldams Road,

    Alwarpet,Chennai - 600 018.

 

3. M/S. Rudradev Avition Private Limited,

    (Rep by its Managing Director) R.R. Towers,

    III, Thiru Vi-Ka Industrial Estates,

    Guindy,Chennai-600 032.

 

4. M/s. NHD Developers, (Partnership Firm, Rep.by its Managing Partners),

    No.36, Old No.157, 1^st Floor,Eldams Road,

    Alwarpet.

    Chennai-600 018.

 

5. M/s. KP HOMES, (Partnership Firm, Rep. by its Managing Partners)

    No.36, Old No. 157, 1^stFloor,

    Eldams Road, Alwarpet,

    Chennai-600 018.

 

6. M/S. Adinath Infrastructure,

    (Partnership Firm, Rep. by its Managing Partners),

    No.41/44, G.P. Road,

    K.G. Plaza, 3^rd Floor,

    Chennai-600 002.

 

7. M/s. Amar Prakaash Developers Private Limited,

    (Rep by its Managing Director) No.42,

    Rajendra Prasad Road, Nehru Nagar,

    Chromepet,

    Chennai-600 044.                                                                                                                        ...  Opposite Parties

 

******

Counsel for the Complainant   : M/s. Lawthrist Associates,

                                                Mr.J. Kiran Kumar,

                                                Mrs. D. Sangeetha, Mr. G.Bikku &

                                                Mr. J. Nanda Gopal

Counsel for the 1^st to 6^th

                  Opposite Parties  : Exparte on 27.06.2022

Counsel for the 7^th

                 Opposite Party       : Exparte on 01.06.2022

 

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

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar., B.A., B.L.,

(i).   The Complainant has filed this complaint as against the Opposite Parties under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Parties to pay a sum of Rs.50,00,000/- for the unfair trade practices and continuous delay to handover the flat by the Opposite Parties and to pay a sum of Rs.49,00,000/- as compensation for the resultant physical mental agony and monetary loss caused by the Opposite Parties to the Complainant along with cost of Rs.50,000/-.

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

1.     The Complainants approached the 7^thOpposite Party in the year 2015 and thereby committed to purchase a flat promoted by the Opposite Parties construction project namely PALMRIVERA (The Venezian). On the above said commitment they entered into an "AGREEMENT OF PROJECT PROMOTION AND CONSTRUCTION" on 13.11.2015 with the Opposite Parties, which was registered as Document No.9458/2015 before the SRO Padappai and as construction agreement they were liable to pay the sum of Rs.59,18,056/- to the Opposite Parties for the sale consideration in respect of the said flat. The Opposite Parties had allotted the flat bearing apartment No.F706 in the 6th Floor, Block No.F. Phase No.03 of the residential project PALMRIVERA (The Venezian) with the super built-up area 942 sq.ft.(including proportionate undivided share in common constructed area) and private terrace area 481 sq.ft, with features along with 350 sq.ft of undivided share of land in the survey NOS. 124/2, 233/1B, 230, 243/1, 243/2A, 243/282, 242/1A part, 228/2, 229/3, 231/1, 231/2, 232/1B, 232/2, 233/2B, 244 at Thirumudivakkam Village, Panchayat, Sriperumbudur Taluk and Kancheepuram District. The above said UDS of 350 sq.ft was registered on 23.12.2015 in their favor, as Document No.9459/2015 at SRO Padappai.Towards purchase of the above said flat they had arranged a home loan facility from the HDFC Bank, Adyar, Chennai, to the tune of RS.45,31,000/-. They had paid a sum of Rs.59,18,056/- to the Opposite Parties in respect of consideration committed for the allotted flat. Under clause No.17 of the Agreement, the Opposite Parties had undertaken to hand over the said flat on or before April 2017. Due to some internal financial setbacks in the project of the Opposite Parties and some other issues the Opposite Parties sought various dates of postponement for handing over their said flat. The pathetic situation is that as on today the Opposite Parties did not completed the Flat F706 -PALMRIVERA (The Venezian) for which only construction is completed without any drainage and/or electricity and/or common utilities and other promised amenities are not in situation of living condition and no any proper response was given by the Opposite parties, in spite of receipt of entire sale consideration long back in the March 2019. The EMI for the home loan availed in HDFC Bank is Rs.51,993.00/- per month were paid by them up to date. They trusted the reputation of the Opposite Parties and thereby committed to purchase the said flat, but now the situation become very worst as they had purchased the said flat for the purpose of sheltering the old aged parents of the 2^nd Complainant, being the only child for her parents with a sole responsibility to take care of her age old parents. The allotted flat was not been handed over to them even after the expiry of the contractual essence of time and hence the 2^nd Complainant and her family members were very much stressed and as the result of bitterness her father Mr.R.Sridharan was affected by heart disease in December 2018, who was admitted in Sri Ramachandra Hospital, Porur, Chennai, for a month in ICU. For the said treatment a sum of Rs 20,00,000/- has been spent for his recovery and thereby they faced the mental agony as well as experienced the monetary loss to the sum of Rs.85,00,000/-. They were dragged by the Opposite Parties to their administrative office for more than 10 times but all the efforts made by them to get their flat for habitat of possession from the Opposite Parties become dream against the reality. On 27.07.2020 they were constrained to cause a legal notice to the Opposite Parties explaining the above said facts and specifically gave one week time for the Opposite Parties to act according to Clause No.20 of the contractual agreement and also claimed the damages from the Opposite Parties to the tune of Rs.1,50,00,000/- for the mental agony and the monetary loss caused by the Opposite Parties, in spite of receipt of the said notice the Opposite Parties did not heed or did not comply their statutory commitment of contract to handover the flats to them which clearly proves their adamant and arrogant attitude and their undue influence with the authorities. The nature of cheating attitude of Opposite Party remains same even after five months from the date of receipt of the above said legal notice. The Opposite Parties didn't come forward to resolve and to dilute their grievance as on today. As on today the Opposite Party did not handover the possession of their flat in continuous breach of contract by the Opposite Parties. Hence the complaint.

II. The Opposite Parties set ex parte:

        Notice was sent to the Opposite Parties and was duly served to the Opposite Parties. Despite the notice being served to the Opposite Parties they failed to appear before this Commission either in person or by  Advocate on the hearing date and not filed any written version on their side.  Hence the Opposite Parties 1 to 7 are called absent and set ex-parte. Subsequently, the case was proceeded to be heard on merits.

III. The Complainant has filed his proof affidavit and Written Arguments, in support of his claim in the complaint and has filed documents which are marked as Ex.A-1 to A-6.

IV.  Points for Consideration:-

1. Whether there is deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

2.     The Contentions of the Complainants are that they had entered into an "AGREEMENT OF PROJECT PROMOTION AND CONSTRUCTION" on 13.11.2015 with the Opposite Parties, which was registered as Document No.9458/2015 before the SRO Padappai, in respect of flat bearing apartment No.F706 in the 6th Floor, Block No.F. Phase No.03 of the residential project PALMRIVERA (The Venezian) with the super built-up area 942 sq.ft.(including proportionate undivided share in common constructed area) and private terrace area 481 sq.ft, with features along with 350 sq.ft of undivided share of land in the survey NOS. 124/2, 233/1B, 230, 243/1, 243/2A, 243/282, 242/1A part, 228/2, 229/3, 231/1, 231/2, 232/1B, 232/2, 233/2B, 244 at Thirumudivakkam Village, Panchayat, Sriperumbudur Taluk and Kancheepuram District. As per the construction agreement they have to pay a sum of Rs.59,18,056/- to the Opposite Parties and a Sale Deed for Undivided share of Land measuring to an extent of 350 sq.ft was registered on 23.12.2015 in their favor, as Document No.9459/2015 at SRO Padappai. Towards purchase of the above said flat they had arranged a home loan facility from the HDFC Bank, Adyar, Chennai, to the tune of RS.45,31,000/-, as such they had paid a sum of Rs.59,18,056/- to the Opposite Parties in respect of consideration committed for the allotted flat. It was undertaken to hand over the possession of their Flat on or before April 2017 under clause No.17 of the said Agreement. Instead of complying the said clause the Opposite Parties had sought for postponement of handing over possession of their Flat stating their internal financial setbacks in the project and some other issues. The Opposite Parties did not complete the Flat F706 -PALMRIVERA (The Venezian) except the construction without any drainage and/or electricity and/or common utilities and other promised amenities and not in situation of living condition and no proper response was given by the Opposite parties who had received entire sale consideration long back in the March 2019 from them. They are paying the EMI of Rs.51,993.00/- per month towards home loan availed from HDFC Bank and were paid by them up to date. They trusted the reputation of the Opposite Parties and committed to purchase the said flat, as the said flat was purchased for the purpose of giving shelter to the old aged parents of the 2^nd Complainant, being the only child for her parents with a sole responsibility to take care of her age old parents. The allotted flat was not been handed over to them even after the expiry of the contractual essence of time, because of which the 2^nd Complainant and her family members were very much stressed and as the result of bitterness her father Mr.R.Sridharan was affected by heart disease in December 2018 and was admitted in Sri Ramachandra Hospital, Porur, Chennai, for a month in ICU, whereby had spent a sum of Rs 20,00,000 for his recovery and thereby they faced mental agony as well as experienced monetary loss to the sum of Rs.85,00,000/-. They were dragged by the Opposite Parties to their administrative office for more than 10 times but all the efforts made by them to get their flat for habitat of possession from the Opposite Parties became dream against the reality. On 27.07.2020 they were constrained to cause a legal notice to the Opposite Parties explaining the above said facts and sought for damages from the Opposite Parties for the mental agony and the monetary loss caused by the Opposite Parties, in spite of receipt of the said notice the Opposite Parties didn't come forward to resolve and to dilute their grievance. Till date the Opposite Party did not handover the possession of their flat in continuous breach of contract by the Opposite Parties.

3.     On perusal of records and the contentions of the Complainants, it is clear from Ex.A-1 that the Complainants had entered into an "AGREEMENT OF PROJECT PROMOTION AND CONSTRUCTION" on 13.11.2015 with the Opposite Parties and the same was registered as Document No.9458/2015 before the SRO Padappai, whereby Flat bearing apartment No.F706 in the 6th Floor, Block No.F. Phase No.03 of the residential project PALMRIVERA (The Venezian) with the super built-up area 942 sq.ft.(including proportionate undivided share in common constructed area) and private terrace area 481 sq.ft, with features along with 350 sq.ft of undivided share of land comprised in survey Nos. 124/2, 233/1B, 230, 243/1, 243/2A, 243/282, 242/1A part, 228/2, 229/3, 231/1, 231/2, 232/1B, 232/2, 233/2B, 244, measuring total extent of 13 Acres and 31.42 centres situated at Thirumudivakkam Village, Panchayat, Sriperumbudur Taluk and Kancheepuram District. It is also clear that as per Clause 17 of Ex.A-1 the Opposite parties had agreed to deliver the subject Flat to the Complainants on or before April, 2017. The Complainants to substantiate the entire payments made by them towards the purchase of the subject flat to the tune of  Rs.59,18,056/-, the advance payment, consideration paid on registration of Sale Deed for UDS, Home Loan Agreement entered into by the Complainants with HDFC Bank, which were marked as Exs.A-1, A-4, A-5 respectively and the Complainants during their oral arguments had produced the Bank Statement of 2^nd Complainant and Email Correspondences sent by HDFC Bank for the disbursement of amount made to 7^th Opposite Party as per the said Home Loan Agreement, and it is clear from the said exhibits the Complainant had paid a sum of Rs.59,18,056/- to the Opposite Parties from the date of entering into the Agreement of Project Promotion and Construction, i.e, from 13.11.2015 till 30.01.2019 on which date a sum of Rs.1,28,628/- found to be disbursed by HDFC Bank to 7^th Opposite Party under the Home Loan Agreement. As it was contended by the Complainants that till date the Opposite parties had not handed over the possession of the subject flat though the construction of the flat was completed but the common amenities like drainage, electricity and also other amenities promised by the Opposite Parties were not in living condition, inspite of having received entire amount as demanded by the Opposite Parties, the lethargic and negligent act of the Opposite parties by not handing over the Possession of the subject flat as agreed upon to the Complainants clearly amounts to unfair trade practice and deficiency of service on the part of the Opposite Parties 1 to 7 and thereby had caused serious mental agony to the Complainants. Accordingly Point No.1 is answered. 

Point Nos.2 and 3:

4.     As discussed and decided Point No.1 against the Opposite Parties 1 to 7, the Opposite Parties 1 to 7 are liable jointly and severally to hand over the flat bearing apartment No.F706 in the 6^th floor, block No.F, phase No.03 of the residential project PALMRIVERA (The Venezian) with the super built-up area 942 sq.ft, to the Complainants and to pay a sum of Rs.5,00,000/-  towards unfair trade practice, deficiency in service and mental agony, along with cost of Rs.5,000/-. Accordingly Point Nos. 2 and 3 are answered. 

In the result the Complaint is allowed in part. The Opposite Parties 1 to 7 are directed jointly and severally to hand over the flat bearing apartment No.F706 in the 6^th floor, block No.F, phase No.03 of the residential project PALMRIVERA (The Venezian) with the super built-up area 942 sq.ft, to the Complainants and to pay a sum of Rs.5,00,000/- (Rupees five Lakhs Only) towards unfair trade practice, deficiency in service and mental agony, along with cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant, within 8 weeks from the date of the receipt of this order, failing which the above said amount of Rs.5,00,000/- shall carry interest @9% p.a from the date of the order till the date of realization.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 12^th of April 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	13.11.2015	Agreement of Project Promotion and Construction Reg.Doc. 9458/2015
Ex.A2	24.11.2015	General Power of Attorney executed by the Complainants in respect of purchase of property
Ex.A3	24.11.2015	General power of Attorney executed by the Complainants in respect of Bank Loan
Ex.A4	28.11.2015	Home Loan Agreement by Complainants with the HDFC Bank
Ex.A5	23.12.2015	Sale Deed in favour of Complainants
Ex.A6	27.07.2020	Legal Notice to Opposite Parties with AKD

 

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

 

NIL

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT