Andhra Pradesh

Chittoor-II at triputi

CC/21/2016

K.Vinay kumar Reddy, S/o K.Sreenivasulu Reddy - 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: 26.03.2016

   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.21/2016

 

 

Between

 

 

1.         K.Vinay Kumar Reddy,

            S/o. K.Sreenivasulu Reddy,

            Hindu, aged 33 years,

 

2.         K.Sreenivasulu Reddy,

            S/o. K.Krishna Reddy,

            Hindu, aged 69 years,

 

Both are residents of

302 C, BCIL Collective,

Yelahanka – Dodballapur Road,

Avalahalli,

Bangalore – 560 064.                                                          … 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 1 to 4 for the following reliefs 1) to direct the opposite parties to complete the construction work of flat No.206 in F2 floor in Block-G 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.1,50,040/- towards delay compensation from 01.05.2014 to 28.02.2016 at Rs.5/- per sq.ft., per month for further period from the date of complaint till handing over of finished apartment with interest at 24% p.a., 3) to direct the opposite parties to pay Rs.13,00,000/- towards the interest paid on private borrowals, physical strain and mental agony suffered by the complainants and their family members for gross deficiency in service on the part of the opposite parties with interest at 24% p.a., and to pay Rs.10,000/- towards costs of the litigation.      

2.  The brief averments of the complaint are:-  that the complainants booked flat bearing No.206 in F2 floor in Block-G (Block No.303) in Phase-II in Marg Vishwashakthi Venture of opposite parties on 16.12.2010 by paying an advance amount of Rs.50,000/-. The opposite parties confirmed the booking of flat No.206 by their letter. At the time of booking the cost of the flat is Rs.24,22,876/-, which was mentioned in the booking form. The costs includes 3BHK flat and G-Stilt car parking bearing No.7 along with common amenities. The payments are to be made / released stage wise construction as per Annexure – A1 and A2 of Ex.A2 sale-cum-construction agreement dt:15.10.2012. That the complainants so far paid Rs.16,00,227/-, for which opposite parties have issued payment receipts and the account extract issued by the opposite parties also herewith filed. Till date the complainants have paid 66% of the total cost of the flat. The opposite parties have promised to handover the finished flat by December 2013 with a grace period of 4 months. Complainants borrowed amounts from private lenders and paid to the opposite parties, they are paying interest to private borrowals. Though 5 complete years have been completed, the unfinished apartment complex is exposed to sun and rain for years together and structural soundness is very much affected. The opposite parties did not choose to pay delayed payment at Rs.5/- per sq.ft. per month as agreed in Ex.A2 sale-cum-construction agreement. Even today the construction is incomplete. The opposite parties are postponing to deliver possession of the finished apartment on some pretext or the other. Having received 66% of the total cost of the flat, the opposite parties failed to complete the construction and also failed to pay the delayed compensation as agreed in Ex.A2. Thus the opposite parties have committed deficiency in service. Hence the complaint.      

            3.  Opposite party No.1 filed written version and the same is adopted by opposite parties 2 to 4. In the written version, paragraphs 3 to 18 are the general denial of parawise allegations of the complaint. The opposite parties further contended that the work in Phase-II was started and is in progress day to day. That due to shortage of labour, sand and bricks, the project was not completed within the stipulated time.  Due to separation of Andhra Pradesh, for formation of Telangana State, Samaikyandhra Bandh, strikes by various parties, non- availability of raw material, delay in various approvals by the Government, and exorbitant increase in the cost of raw material etc. are the causes for delay in completion of the construction. The opposite parties admitted that the complainant purchased a flat at Rs.1659/- per sq.ft. Later the rates were gone up to Rs.3,200/- per sq.ft. That the Government issued G.O. not to lift the sand without prior permission. There is delay in progress of construction for the above reasons, which are beyond the control of the opposite parties. Therefore, the opposite parties are not liable to pay any amount to the complainants. The opposite parties further contended that unless the opposite parties receive the payment from other customers, there is no possibility for progress of work. The opposite parties are ready to handover the flat to the complainants and it is progressive work, and the complainants unnecessarily approached the Forum with an intention to harass the opposite parties. One C.Manohar, Civil Contractor has taken away the raw material. Recently, the followers of the complainants also took away the raw material and machinery. That 42 unsold flats were there and they are to be sold away. There is no deficiency in service on the part of the opposite parties. That the complainants have violated the terms and conditions of the sale-cum-construction agreement, by filing the complaint before this Forum instead of approaching the arbitrator at Chennai. This Forum has no jurisdiction to entertain the complaint and prays the Forum to dismiss the complaint with costs.  

            4.  The 2^nd complainant K.Sreenivasulu Reddy has filed his chief affidavit and got marked Exs.A1 to A8. 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.  

            5.  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?

            6. Point No.(i):-  to answer this point, burden lies on the complainants. To substantiate the case of complainants they relied on Ex.A1 booking form dt:16.12.2010 through which they purchased flat No.206 in F2 floor in Block-G in Phase-II of Marg Vishwashakthi Venture launched by the opposite parties by paying Rs.50,000/- as advance amount. That the total cost of the flat is Rs.24,22,876/- and both parties have entered into sale-cum-construction agreement Ex.A2 wherein certain terms and conditions were incorporated. The payment schedule was also given in Annexure – A1 and A2. In Ex.A2 sale-cum-construction agreement dt:15.10.2012, at  Clause-13, it is agreed by the opposite parties that the possession of the residential apartment will be delivered by December 2013 with a grace period of 4 months. Clause-13.2. Force Majeure, it is mentioned that the opposite parties are not liable for the delays, reasons mentioned therein are including act of God. Clause-24 refers to arbitration and jurisdiction fixed, the venue is at Chennai. In Clause-3 the opposite parties agreed to pay compensation at Rs.5/- per sq.ft. per month in case of delay in construction and delivery of possession of the residential apartment. The schedules B to E clarifies the specifications and features of construction. Schedule-F shows the list of common amenities. From the date of Ex.A2 (15.10.2012) 4^1/2 years were completed, but none of the terms and conditions were complied with by the opposite parties. Construction is not completed. Possession is not delivered. Complainants cannot be compelled to wait for an uncertain period till opposite parties are able to complete the construction of the flat. In this regard, we are relying on a decision reported in 11(2017) CPJ 508 (NC) Ranjeet Bhatia Vs. Super Tech Limited and Anr. wherein their Lordships held: “Consumer Protection Act 1986 – Section 2(1)(g), 14(1)(d), 21(a)(1) – Housing – Allotment of flat – Non-delivery of possession – Deficiency in Service – Considering failure of opposite party to perform its contractual obligations by offering possession of flat booked by the complainants, complainants cannot be compelled to wait for an uncertain period till opposite party is able to complete construction of flat which it had booked by them – opposite party is directed to refund entire amount of Rs.55,92,636/- to the complainants along with compensation in terms of simple interest at 10% p. a. – Costs imposed”.   Compensation for the delay as agreed was also not paid for non-completion of the construction. It is also admitted that the complainant so far paid Rs.16,00,227/- by 03.12.2014 as per Ex.A3 statement of account issued by the opposite parties. Having accepted huge amounts from the purchasers, the opposite parties still failed to complete the construction, except the skeleton work / frame work and leaving / exposing the same to sun and rain for years together on some pretext or the other. The opposite parties are taking advantage of each and every past event such as state bifurcation, bandhs, strikes and agitations, which were ended by 2014 itself. The opposite parties also showing the cause for the delay that there is heavy rainfall in Tirupati resulting stopping the construction works and also by showing that raw material and some other construction material and machinery were stolen away by some unknown persons and also by the followers of the complainants without there being any iota of evidence. The opposite parties also failed to show any evidence for the increase of cost of raw material, cement, bricks etc., increase of labour charges and also failed to state what are the approvals pending before the Government or any other statutory body in connections with the apartments. Simply they are taking such averments without any basis. Under the above circumstances, we are of the opinion that the complainants have established that there is deficiency in service on the part of the opposite parties and therefore the opposite parties are liable for their negligence and deficiency in service on their part. Accordingly this point is answered.

            7.  Point No.(ii):- so far as entitlement of the complainants in respect of the reliefs sought for, simply they are asking to direct the opposite parties to complete the construction within the specified period and handover the possession to the complainants. That they are also asking for compensation for the deficiency in service and for mental agony caused to the complainants and also seeking another relief of compensation @ Rs.5/- per sq.ft. per month as agreed by the opposite parties in Ex.A2 for the delay in construction and finally they are seeking cost of the complaint. The reliefs appears to be quite reasonable and genuine because though the opposite parties have agreed to complete the construction and handover the finished flat to the complainants by December 2013, but even after lapse of 3 years and after the grace period also, the construction was in standstill position, that to the skeleton construction, which was exposed to sun and rain as contended by the complainants, for which there is no specific denial from the opposite parties. Therefore, in view of the abnormal delay in completion of the construction, the complainants are entitled for the compensation for deficiency in service and for mental agony caused to the complainant by the opposite parties. Therefore, we are of the opinion that 10% of the amount paid is given towards compensation for the deficiency in service and for mental agony, which will meet the ends of justice. The total cost of the apartment is Rs.24,22,876/-. So far the complainants have paid Rs.16,00,227/-. So, if 10% of the amount paid is calculated, it comes to Rs.1,60,022/-, this amount is awarded towards compensation for the deficiency in service on the part of the opposite parties and also for the mental agony that was caused to the complainants. Another relief sought for is to direct the opposite parties to complete the construction within a specified period and deliver possession of the same. In this regard, the opposite parties 1 to 4 are herewith directed to complete the construction of the apartment of the complainants within 3 months from the date of receipt of copy of this order and deliver vacant possession of the same to the complainants and file the delivery receipt duly signed by the complainants in the Forum. Another relief is claiming compensation for the delay in completion of the construction of the apartment as agreed by the opposite parties in Ex.A2 sale-cum-construction agreement. In the said agreement, the opposite parties agreed to pay Rs.5/- per sq.ft. per month. The extent of the apartment purchased by the complainants in flat No.206 is 1364 sq.ft. If the amount is calculated at Rs.5/- per sq.ft. it comes to 1364 x 5 = 6820 per month, for 3 years it will be 6820 x 36 = 2,45,520. This agreed compensation of Rs.2,45,520/- shall be paid by the opposite parties within one month from the date of receipt of copy of the order. The reliefs sought for by the complainants appears to be quite reasonable, therefore, the complainants in our opinion are entitled to the reliefs stated above. Accordingly, this point is answered.

            8. Point No.(iii):-  in view of our discussion on points 1 and 2, we are of the opinion that the complainants established that there is deficiency in service on the part of the opposite parties, that they have caused much mental agony to the complainants, as such they are entitled for the compensation for deficiency in service and mental agony, that the complainants also entitled for the compensation at Rs.5/- per sq.ft. per month, as per the terms and conditions of Ex.A2. However, the complainants failed to establish the private borrowals and payment of interest thereof. Therefore, this relief is negatived 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.206 in F2 floor in Block-G 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.2,45,520/- (Rupees two lakhs forty five thousand and five hundred and twenty only) towards compensation for the delay in completing the construction as agreed in Clause-3 of Ex.A2 dt:15.10.2012 @ Rs.5/- per sq.ft per month from 01.05.2014 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.1,60,022/- (Rupees one lakh sixty thousand and twenty two 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.2,45,520/- 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: K. Sreenivasulu Reddy (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).
	Original Agreement of Sale, filed by complainants. Dt: 09.07.2012.
	Account Statement showing payments made by Complainants (Notarized attested copy).
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 08.03.2016.
	Multi colored Brochure of the opposite parties.
	Email given by the opposite parties (Notarized attested copy).                         Dt: 08.03.2014.
	Email given by the opposite parties (Notarized attested copy).                         Dt: 24.05.2014.
	Calculation Sheet.

 

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.