Andhra Pradesh

Chittoor-II at triputi

CC/19/2016

J.Subramanyam, S/o. M.Gangaiah, Hindu aged 65 years. - Complainant(s)

Versus

M/s MARG Business Park Private Limited, Represented by its Managing Director - Opp.Party(s)

K.S.Sridhar, K.S. Vasu

11 May 2017

ORDER

Filing Date: 16.03.2016

Order Date:  11.05.2017

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

THE ELEVENTH DAY OF MAY, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.19/2016

 

 

Between

 

 

1.         J.Subramanyam,

            S/o. M.Gangaiah,

            Hindu, aged 65 years,

 

2.         J.Mamatha,

            W/o. J.Subramanyam,

            Hindu, aged 56 years,

 

Both are residents of

7-96, Padmavathi Puram,

Tiruchanur Road,

Tirupati.                                                                                 … Complainants.

 

 

 

And

 

 

1.         M/s. MARG Business Park Private Limited,

            Rep. by its Managing Director,

            Holding Regd. Office at

            D.No.4/318, Old Mahabalipuram Road,

            Kottiwakkam,

            Chennai – 600 041.

 

2.         M/s. YUVA Constructions Private Limited,

            Rep. by its Managing Director,

            Holding Regd. Office at

            Panneru kalva Road,           

            Kotramangalam Village,

            Tiruchanoor By-Pass road,

            Thookivakkam Post,

            Renigunta Mandal,

            Tirupati – 517 520.

 

3.         M/s. MARG Limited,

            Rep. by its CMD G.R.K.Reddy,

            Holding Redg. Office at

            D.No.4/318, Old Mahabalipuram Road,

            Kottiwakkam,

            Chennai – 600 041.

 

4.         M/s. MARG Limited,

            Rep. by its Authorised Signatory,

            M. Chenga Reddy,

            S/o. M.Munirathnam Reddy,

            Hindu, aged 57 years,

            Residing at D.No.19-3-D13,

            Tiruchanoor Road,

            Tirupati – 517 501.                                                              …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 27.04.17 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.K.S.Sridhar, Sri.K.S.Vasu, counsel for complainants, and Sri.N.Manohar, counsel for opposite parties, and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section–12 of C.P.Act 1986, by the complainants against the opposite parties for the following reliefs 1) to direct the opposite parties to complete the construction work of flat No.603 in F6 floor in Block-E in Phase-II, in Marg Vishwashakthi Venture, Kotramangalam village accounts, Renigunta Mandal and deliver possession of the same with all amenities agreed upon to the complainants, 2) to direct the opposite parties to pay Rs.3,18,780/- towards compensation for the delay in completion of work and deliver possession @ Rs.5/- per sq.ft from 01.06.2012 to 28.02.2016 and also for further period from the date of complaint, till handing over of finished apartment, 3) to direct the opposite parties to pay a sum of Rs.16,00,000/- towards the interest paid on private borrowals and for physical and mental strain caused to the complainants and their family members and for the deficiency in service on the part of the opposite parties and  4) to direct the opposite parties to pay Rs.10,000/- towards costs of the complaint, such other reliefs as the Forum deems fit and proper in the circumstances of the case.  

            2.  The brief averments of the complaint are:-  that the opposite parties floated a project for the development of integrated township inclusive of residential apartment complex in the name and style of Marg Vishwashakthi Venture. That the complainants and various others having attracted by the publicity made by the opposite parties, booked a flat No.603 in F6 floor in Block-E in Phase-II in Marg Vishwashakthi Venture of opposite parties on 29.07.2010 by paying advance amount of Rs.50,000/- and the opposite parties have confirmed the booking by their letter dt:02.08.2010. By the time of booking, the opposite parties promised the following amenities – School, Service Apartments, Convention Center, Commercial Complex, Bank and ATM, Dispensary, Restaurant / Coffee Shop, Mini Theatre, Club House, Jogging Track, Snooker, Grocery, Senior Citizens Park, Children play area, Gym and various other usual amenities.

            3.  At the time of booking, the cost of the flat is Rs.24,76,951/- including 3BHK flat, G-stilt, car parking bearing No.1 and the same is mentioned in booking form. Payments to be released stage wise construction as per annexure-A1 and A2 of sale-cum-construction agreement dt:16.09.2010. The complainants have paid Rs.16,36,762/-, for which the opposite parties have issued receipts. The account statement issued by the opposite parties is filed herewith. At the time of agreement the opposite parties promised to handover the finished apartment by February 2012 with a grace period of 4 months. Till date 66% of the cost of the flat was received by the opposite parties but construction is in standstill position and no possession is delivered so far. The complainants are paying interest to the private borrowers from whom they have borrowed amount for the purpose. That the opposite parties have promised in the sale-cum-construction agreement that they will pay compensation of Rs.5/- per sq.ft. per month after expiry of grace period, in case they could not deliver possession of the flat as agreed by the opposite parties, but avoiding to pay the said agreed amount also.

            4.  Even after lapse of 5 complete years after booking, unfinished flats are exposed to sun and rain and the structural soundness of the apartment complex is very much affected due to non-plastering of bricks, pillars, beams and slab portion and the rods are in the stage of corrosion and lost its strength. That the complainants questioned the opposite parties for the delay, they pressurized the complainants to pay excess amount than the agreed amount to speed-up the construction, believing them the complainants have paid amounts more than the payment schedule. As the complainants refused to get the registered sale deed, as even the roofing was not completed, the opposite parties slow down the construction. When the complainants questioned the opposite parties for the delay, the opposite parties sent e-mails to all the customers stating that they have reworked the handing-over date to December 2014, and postponing the same on some pretext or the other and requested the complainants to pay the balance amounts, but so far no progress is made except skeleton work. The complainants got issued legal notice dt:23.01.2016, for which opposite parties gave reply dt:17.02.2016 will all false allegations. There is gross negligence and deficiency in service on the part of the opposite parties and they have not completed the construction of the apartments so far. Hence the complaint.

            5.  Opposite party No.1 filed written version and the same is adopted by opposite parties 2 to 4. The opposite partiers have admitted the complaint allegations to the effect of purchasing flat No.603 in 6^th floor of block-E in Phase-II of Marg Vishwashakthi Venture of the opposite parties on 29.07.2010. They also admitted the advance payment of Rs.50,000/- and also admitted that the complainants have paid Rs.16,36,762/- so far which is 66% of the total cost of the flat. They also admitted that they agreed in Ex.A3 sale-cum-construction agreement to pay Rs.5/- per sq.ft. as delay compensation after expiry of grace period. They further contended that they have started Phase-II and the work is in progress. Due to shortage of labour, sand and bricks, the project could not be completed within the stipulated time, due to separation of Andhra Pradesh, for forming Telangana State, Samaikyandhra Bandh and strikes by various parties, non- availability of raw material, delay regarding various approvals and Government regulations. Further exorbitant increase in the price of raw material, unforeseen economic slowdown, delay by the flat buyers for payment of the amounts committed by them under the payment schedule agreed, the opposite parties could not register the documents in favour of the customers due to non-functioning of Sub Registrar Office, Tirupati, as a consequence of the State issue, which resulted in non-payment of customers as chain reaction and the reasons were not uncommon in the integrated township development market.

            6.  That the complainants purchased a flat at Rs.1599/- per sq.ft. launched by Viswasakthi project. Unfortunately, material and labour cost increased and actual cost of construction grown up to Rs.3,200/- per sq.ft. The difference cost also invested by the opposite parties themselves without demanding from the complainants and other customers. The Government issued G.O not to lift the sand, as such there is delay in progress of the construction. The raw material and cement rates were abnormally increased and not available in free market. The labour also not available due to Samaikyandhra bandh. Unfortunately heavy rainfall in Tirupati,  resulting down-fall in the real estate market. As the situations are beyond the control of the opposite parties, they could not complete the construction as mentioned in the agreement, as such opposite parties are not liable to pay damages to the complainants.

            7.  That the opposite parties are going to work day to day and it is heavy project. The other customers also not cooperating in payment of balance amount as per schedule. Unless the opposite parties receive the amounts from other customers, there is no possibility in progress of work. The opposite parties are ready and willing to handover the flat to the complainants. Unnecessarily, the complainants approached the Forum with an intention to harass and defame the opposite parities in the society. The complainants provoked other customers not to pay the balance amounts. One C.Manohar, Civil Contractor, taken away the raw material and machinery at the instance of the customers. The opposite parties have also approached the police. There are 42 unsold units to sell and realize the payments. The opposite parties are ready to discuss and arrive at any understanding mutually beneficial and to complete the project. There is no deficiency in service on the part of the opposite parties and prays the Forum to dismiss the complaint with costs.

8.  The 1^st complainant J.Subramanyam has filed his evidence affidavit as P.W.1 and got marked Exs.A1 to A10. One T.Ram Mohan, authorized signatory of opposite parties filed evidence affidavit as R.W.1 and reported no documents on their behalf. Both the parties have filed their respective written arguments. Heard the counsel for both parties.

            9.  Now the points for consideration are:-

            (i).  Whether there is deficiency in service on the part of the opposite parties?

            (ii).  Whether the complainants are entitled for the reliefs as prayed for?                        

            (iii)  To what relief?

            10.  Point No.(i):-  the complainants case is that they have purchased flat No.603 in 6^th floor in Block-E in Phase-II of Marg Vishwashakthi Venture launched by the opposite parties on 29.07.2010, and also they paid an advance amount of Rs.50,000/- as per Ex.A1 booking form. The opposite parties have confirmed the booking by their letter dt:02.08.2010 (Ex.A2). By the time of booking, the opposite parties have promised to complete the construction of the flat and the payment schedule also clearly mentioned in Annexure A1 and A2 attached to Ex.A3 sale-cum-construction agreement. The opposite parties have promised to handover the finished flat by February 2012 with a grace period of 4 months. That the opposite parties have collected 66% of the cost of the flat i.e. Rs.16,36,762/-, later they failed to complete the construction so far and also failed to deliver possession of the flat to the complainants as promised. As per the complaint and also the written version, the construction of the flats were not completed except the skeleton structures, which were exposed to sun and rain, consequently they lost their strength. So far 5 complete years were lapsed, but the construction is in standstill position. The opposite parties have not mentioned anywhere in their written version or the chief affidavit or in their written arguments, what is the exact stage of the construction. They have mentioned in the payment schedule that the purchasers have to pay the amounts prescribing some percentages at stage wise of the construction. Here there is no meaning in asking their customers who purchased the flat in 1^st floor or 2^nd floor, to pay the amounts in a sum at the completion of 1^st floor, some amounts after completion of 3^rd floor, 5^th floor, 7^th floor and 9^th floor etc. It implies that the opposite parties intends to collect the amounts from their customers till the total 8^th floor or 9^th floor of the apartment were completed and keep the structures incomplete leaving their fate to nature, exposing the said skeleton structures to sun and rain years together. That apart the opposite parties are making use of every opportunity such as state bifurcation issue, agitations, rainfall, non-availability of sand, bricks and labour etc. and postponing the completion of work on some pretext or other. The alleged bundhs, strikes and non-availability of labour etc. could not be sustained by the opposite parties and they failed to discharge their contractual obligation. In this regard we are relying on a decision of the Hon’ble National Commission reported in 1(2017) CPJ 216 (NC) – Richa Aggarwal and Anr. Vs. Uni Tech – High Tech Developers Ltd. Thus the opposite parties have violated the terms and conditions of Ex.A3 sale-cum-construction agreement, for which the opposite parties are liable to pay compensation for the delay @ Rs.5/- per sq.ft. per month as agreed in Ex.A3. But so far the opposite parties neither completed the construction nor paid the agreed payments for the delay in construction. The state bifurcation was already completed by June 2014, that even after lapse of 2 years thereafter the opposite parties failed to complete the construction and further they have mentioned specifically in their written version that unless the customers have paid the total amount agreed, it is not possible to complete the construction, which shows the evil intention of the opposite parties. So far as non-availability of the sand, not granting permissions by the Government and non-availability of labour are the responsibilities of the opposite parties, without getting the prior permissions and sanctions from the Government, they are not supposed to launch the venture. As such there is deficiency in service on the part of the opposite parties in completing the constructions on some pretext or other and making advantage of every situation that were taken place in the state, but the opposite parties failed to mention from which date to which date the state bifurcation issue was existed, from which date to which date strikes were taken place, and on which date rainfall was there in Tirupati, making the opposite parties to stop the work of the apartments, except bold statement no dates or such other incidents were put forth to substantiate their contention till date. Except mentioning that day to day work is in progress, no factual work is going on as argued by the learned counsel for the complainants. The learned counsel for the opposite parties also while advancing arguments specifically mentioned that the opposite parties are taking steps to show the work in progress day to day, but no material is placed before the Forum. That the opposite parties further contended that their material as well as iron rods etc. were taken away by somebody else, but no proof is filed, more particularly no documents were filed on their behalf, and further they openly represented that they have no documents to file on their behalf. All these contentions of the opposite parties clearly shows that there is deficiency in service on their part, they could not fulfill their promise made under Ex.A3 in completing the construction of the apartment and handing-over the apartment to the complainants. Therefore, we are of the opinion that complainants have established that there is deficiency in service on the part of the opposite parties. Accordingly this point is answered.

            11.  Point No.(ii):-  to answer this point, it is necessary to mention that total cost of the apartment at the time of booking is Rs.24,76,951/- including 3BHK flat and G-Stilt car park bearing No.1 along with common amenities. The sale deed not executed so far. In this case, the complainants have paid so far a sum of Rs.16,36,762/-, which is 66% of the total sale consideration. The opposite parties agreed to deliver possession of the finished flat by February 2012 with a grace period of 4 months. The opposite parties also agreed to pay compensation in case of delay in handing-over the possession of the flat at Rs.5/- per sq.ft. per month, after the grace period is over, which was calculated by the complainants from 01.06.2012 to April 2017 i.e. 4 years 10 months. Complainants cannot be compelled to wait for an uncertain period till the opposite parties are able to complete construction of the flat. The total extent of the flat is 1449 sq.ft., 1449 x 5 = Rs.7,245/- per month, which comes to Rs.86,940/- per annum, Rs.3,47,760/- for 4 years and for the remaining 10 months it is calculated at 7245 x 10 = Rs.72,450/-, total comes to Rs.4,20,210/- as agreed by the opposite parties. This amount should be paid within one month from the date of receipt of copy of this order. That apart, the opposite parties also liable to pay compensation for deficiency in service at 10% of the amount paid, which comes to Rs.1,63,676/-. Thus the complainants are entitled to the above said amounts of Rs.1,63,676/- towards deficiency in service and for the mental agony caused to the complainants, and also the complainants are entitled to a sum of Rs.2,000/- towards costs of the complaint. Accordingly, this point is answered.

            12. Point No.(iii):-  in view of our holding on points 1 and 2, we are of the opinion that the complainants are entitled to the reliefs of compensation for deficiency in service and mental agony, and compensation for delay in handing-over possession of the property as agreed by the opposite parties in Ex.A3 sale-cum-construction agreement dt:16.09.2010, and complaint therefore is to be allowed accordingly.

            In the result, complaint is allowed in part (a) directing the opposite parties 1 to 4 jointly and severally to complete the construction of  flat No.603 in F6 floor in Block-E in Phase-II of Marg Vishwashakthi Venture, launched by the opposite parties within three (3) months from the date of receipt of copy of the order, execute registered sale deed in favour of the complainants and deliver vacant possession of the finished flat with all amenities agreed upon, on receipt of the balance sale consideration, and file delivery receipt duly signed by the complainants in the Forum.   (b)  that the opposite parties 1 to 4 are directed jointly and severally to pay a sum of Rs.4,20,210/- (Rupees four lakhs twenty thousand and two hundred and ten only) towards compensation for the delay in completing the construction as agreed in Clause-3 of Ex.A3 dt:16.09.2010 @ Rs.5/- per sq.ft per month from 01.06.2012 to April 2017, this amount shall be paid within one month from the date of receipt of copy of the order. (c) that the opposite parties 1 to 4 are jointly and severally directed to pay Rs.1,63,676/- (Rupees one lakh sixty three thousand six hundred and seventy six only) being 10% of the amount paid by the complainants out of the sale consideration towards deficiency in service and for mental agony caused to the complainants with interest at 9% p.a. from the date of complaint, till realization or till the date of delivery of the possession of the apartment / finished flat. (d)  that the opposite parties 1 to 4 are also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint. (e)  that the opposite parties 1 to 4 are jointly and severally further directed to comply with the orders within the time stipulated under each relief, failing which the delay compensation amount of Rs.4,20,210/- shall carry interest at 9% p.a. from the date of complaint, till the date of delivery of possession of the finished flat. 

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 11^th day of May, 2017.

 

       Sd/-                                                                                                                      Sd/-                        

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant.

PW-1: J. Subramanyam (Chief Affidavit filed).

Witnesses Examined on behalf of Opposite PartIES.

RW-1: T. Ram Mohan    (Chief Affidavit filed)

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT

Exhibits (Ex.A)	Description of Documents
	Booking Form (Notarized attested copy) Dt: 29.07.2010.
	Allotment Confirmation Letter issued by Opposite Parties (Notarized attested copy). Dt: 02.08.2010.
	Sale-cum-construction agreement in favour of 1st complainants (Notarized attested copy). Dt: 15.09.2010.
	Account Statement showing payments made by Complainants (Notarized attested copy).
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 23.01.2016.
	Reply Notice.  Dt: 17.02.2016.
	Multi coloured brochure of the opposite parties.
	Email given by the opposite parties (Notarized Attested copy).                        Dt: 23.11.2013.
	Email given by the opposite parties (Notarized Attested copy).                        Dt: 24.05.2014.
	Calculation Sheet memo filed on behalf of the Complainants.

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES

     -NIL-

 

          

                                                                                                                                    Sd/-        

                                                                                                                      President

      // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

           Dist. Consumer Forum-II, Tirupati.

 

Copies to:-     1.  The complainants.

                        2.  The opposite parties.