Date of Filling: 29.01.2015
Date of Disposal: 07.08.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CC No.15/2015
TUESDAY, THE 07 DAY OF AUGUST 2018
S.Venkatesh,
S/o.Sakaranarayanan,
No.5, Latithalaya Apartments,
Panchaliamman Koil Street,
Arumbakkam,
Chennai - 600 106. ……Complainant.
//Vs//
KG Foundations(P) limited,
Rep. by its Authorised Representative,
Mr.Kishorekumar Gokul Das,
No.5, Bishop Wallers Avenue (east)Mylapore,
Chennai - 4 …..Opposite party.
The complaint is coming upon before us finally on 20.07.2018 in the presence of Thiru.A.R.Poovannan, counsel for the complainant and M/s.Dr.P.Vasudevan, counsel for the opposite party and upon hearing arguments, having perused the documents and evidences that Forum delivered the following.
ORDER
PRONOUNCED BY THE S.PANDIAN, PRESIDENT.
This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite party for seeking direction to pay a sum of Rs.5,00,000/- towards compensation for the non delivery of the flat as per the agreement time and to pay a sum of Rs.3,25,000/- towards the complainant house rent charges and to pay a sum of Rs.25,000/- for mental agony and deficiency of service on the part of the opposite party and with cost Rs.10,000/- only.
2.The brief averments of the complaint are as follows:-
The Complainant has approached the opposite party who is the builder to construct a flat and for which the opposite party has informed about the ongoing project and the complainant has agreed to purchase of the flat when the opposite party has canvassed about the highlights of the said project.
3. The complainant has agreed and entered into a builders agreement dated02.08.2010 to build a flat situated at KG Signature, 200 Bye pass Road, Adyalampattu Village, Ambattur Taluk, Thiruvallur District and by the agreement the opposite party has allotted a 2nd Floor flat No.C201 at Block C, as per the agreement the complainant has to pay the consideration of the building amount at the regular intervals as per clause 8. On 02.12.2010 the complainant has also purchased an undivided share of 206 sq through a sale deed dated02.12.2010 from the opposite party who is the power agent of the land owner for a valuable sale consideration of Rs.2,61,620/-. As per the agreement the opposite party has to complete the construction of the flat and handover the possession to the complainant in the first of December 2013 but the opposite party has failed to act as per the agreement the complainant has paid the regular installments completed the payments but the even after the grace period the opposite party has not handed over possession after completion of one year from the grace period time lapsed. In spite of several oral requests and phone calls but the opposite party is seeking a further grace period of one month thereby the opposite has committed deficiency in service by not handing over possession of the flat for more than a year after excluding the 8 months grace period. So, the complainant is staying at a rented house and paying a rent of Rs.25,000/- per month for the past four years. The variation of penalty amount itself will show that the agreement itself the opposite party has got unrestricted power which amounts to unfair trade practice.
4. Because of the act of the opposite party and to an extent the complainant is forced to continue in a rented house for the past fourteen months because of the act of the opposite party the complainant put to mental agony, stress and financial crises. Hence this complaint.
5. The contention of written version of the opposite party is briefly as follows:-
6. The opposite party denies all the allegations stated in the complaint as false except those that are specifically admitted herein. The complainant in the agreement dated 02.08.2010 has acquiesced to the jurisdiction of the courts at Chennai. Therefore this complainant is not maintainable before the Hon’ble Forum.
7. In terms of the agreement the complainant had to abide by the payment schedule for completion and handing over the flats. Contrary to the same, the complainant had hot come forward to make the payment claimed by the opposite party vide its letter dated 30.12.2014.
8. The opposite party vide its letter dated 30.12.2014 had registered the complaint to remit the sum of Rs.3,01,731 being the contractual due in terms of builders agreement dated 02.08.2010 for handing over the possession of the fat of the said dues along with other amounts payable in terms of the contract, the opposite party will be liable to hand over possession of the flat.
9. The opposite party had completed the project. In terms of the agreement, however due to same factors beyond the control of parties viz., untoward incidents in some other project not related to the opposite party. There was a delay of few months in obtaining completion certificate for the flat of the complainant from the concerned department. It is pertinent to note that completion certificate by the statutory authority is mandatory for taking possession for the flat. This opposite party had intimated about taking possession of the flat by complainant in its letter dated 30.12.2014 at the earliest after receipt of the completion certificate.
10. Therefore the opposite party is not responsible for any delay and has not committed any deficiency. The opposite party had also paid compensation to the flat owners in terms of the agreement, for those who had abided the payment schedule. The complainant has failed to do so.
11. The opposite party submits that it had not exhibited any unrestricted power in the Builders agreement. Therefore, the allegation of unfair trade practice against the opposite party itself is farce and liable to be rejected. It is established that the complainant has not come to this Hon’ble Forum with clean hands. Hence this complaint is liable to be dismissed.
12. At this juncture, the point for consideration before this Forum is:-
Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
To what other reliefs, the complainant is entitled to?
13. Written arguments filed and oral arguments also adduced by both sides.
14. Point no:1:-
As per averments of the complaint, the complainant and the opposite party have entered into an agreement dated 02.08.2010 and also the sale deed is executed for the undivided share on 02.12.2010. The complainant has purchased the alleged flat from the opposite party but even within the grace period the opposite party has not handed over possession and even after completion of one year from the grace period, in spite of several demands, the opposite party has not delivered the flat which caused much mental agony and stress and thereby for several months the complainant has forced the stay in the rental house which clearly amounts for deficiency of service on the part of the opposite parties.
15. On the other hand, as per the version, it is stated that as per the agreement the complainant has not come forward to make the payment claimed by the opposite party and there was a delay of few months in obtaining the completion certificate from the concerned department which is mandatory one and the opposite party could not hand over the flat. It is further stated that the opposite party had intimated the above taking possession of the flat through letter dated 30.12.2014 after receipt of the completion certificate but due to non- payment of final amount and therefore the opposite party is not responsible for delay and has not committed deficiency of service.
16. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that there is no dispute about the builder agreement Ex.A2 and the execution of Ex.A3 the sale deed for an undivided share land in between the complainant and opposite party. The main averments put forth by the complainant is that the opposite party has not delivered the flat within the prescribed time as per the Ex.A2 and thereby the delay occurred which leads of the complainant to stay in the rental house and thereby the complainant has compelled to pay rent for which the complainant has claimed of Rs.3,25,000/-. First of all, it is foremost duty of this forum to consider whether any delay as alleged by the complainant in delivery of the alleged flat has agreed on the side of the opposite party and the same has not been explained. For which, on the side of the complainant it is stated that as per the Ex.A2 the opposite party ought to have completed the construction of the flat and handed over the possession in March 2013 as per the (Annexure-C) in the agreement after four months grace time has agreed as per the clause 14.2 and another grace period of four months taken by the opposite party failed to handed over the possession of the alleged flat.
17. At the outset, on the side of the opposite party, it is submit that the delay and default in payment, the complainant shall been liable to pay interest at 18% on such outstanding amount from the date on which such amount became due till the date of payment which is clearly agreed in Annexure –B. The ALLOTTEE(S) shall pay the respective installments on the due date but the complainant herein has not paid the final payment and thereby he is a defaulter. Further, it is brought to the knowledge of this forum, as per the Ex.B1 the balance due on 13.12.2014 of Rs.3,20,927/- as per the Ex.B2 dated 25.02.2016 the difference in amount due in full settlement on verification of total dues of Rs.19,092/- and the statement between the parties after filing of this complaint compensation for the delay period given to the tune of Rs.79,200/- and in continuance as agreed and accepted by the complainant herein on 25.02.2016 itself Ex.B3 was executed in the parties in the full settlement.
18. Further, it is stated by the learned counsel for the opposite party that in fact at the time of filing the complaint, the complainant is a defaulter and he is not paid the full consideration but only part amount. In this aspect, it is seen that the same has not been disputed by the complainant. Then, regarding the delay occurred, the learned counsel would submit that clause 27 under the here FORCE MAJEURE the Builder shall not be reasonable for any delay caused on account of FORCE MAJEURE i.c. delays attributable for reasons beyond the control and argued that the delay occurred only in obtaining the completion certificate from the concerned authority which is mandatory one. For which, the opposite party has paid the amount compensation of Rs.79,200/- as agreed by the complainant as full settlement through Ex.B2 and Ex.B3. Hence the allegation in respect of delay has been fulfilled by the opposite party and thereby there is no deficiency of service on the part of the opposite party. Next relief in respect of damages for staying in the rental house, it is crystal clear that no relevant document has been filed on the side of the complainant. It is further seen that any other document viz. and the receipt for the payment of the rent for the relevant periods has not been produced before this Forum in order to substantiate the said claim. Therefore, such prayer claim in the complaint is fully devoid of merits.
19. In the light above other facts and circumstances, it is crystal clear that there is no deficiency of service on the part of the opposite party as alleged by the complainant in the complaint. Thus the point No.1 is answered accordingly.
20. Point No.2:-
In view of the decision arrived in point No1, the complainant is not entitled for any relief as prayed in the complaint. Thus, the point No2 is answered accordingly.
In the Result, this Complaint is Dismissed. No Cost.
Dictated by the president to the stent-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 07th August 2018.
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MEMBER PRESIDENT.
List of document of the complainant.
Ex.A1 | | Letter of Authorization | Xerox |
Ex.A2 | 02.01.2010 | Builders agreement | Xerox |
Ex.A3 | 02.12.2010 | Sale Deed (Doc.No.2582/2010 | Xerox |
List of document of the opposite party:-
Ex.B1 | 30.12.2014 | Final Statement of Accounts. | Xerox |
Ex.B2 | 25.02.2016 | Final statement of Accounts | Xerox |
Ex.B3 | 25.02.2016 | Possession letter | Xerox |
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MEMBER PRESIDENT
