Andhra Pradesh
Chittoor-II at triputi
CC/18/2016
M.R.Prasad, S/o.M.S. Ramanamoorthy - 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: 14.03.2016
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.18/2016
Between
1. M.R.Prasad,
S/o.M.S.Ramamoorthy,
Hindu, aged 42 years,
2. T.Rajani,
W/o. M.R.Prasad,
Hindu, aged 29 years,
Both are residents of
H-405, Marg Viswasakthi, Phase-1,
Kotramangalam,
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.802 in the F8 floor in Block-G (Block No.303) 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.3,04,000/- towards compensation for the delay in completion of work and deliver possession @ Rs.5/- per sq.ft from 01.06.2013 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 loss of rent, interest paid on private borrowals, physical strain and mental agony suffered by the complainants and their family members due to gross 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 complainants purchased flat No.802 in the F8 floor in Block-G (Block No.303) in Phase-II in Marg Vishwashakthi Venture of opposite parties, by booking the said flat on 13.08.2011, by paying an advance of Rs.1,00,000/-. The opposite parties confirmed the booking on 30.08.2011. The cost of the flat at the time of booking was Rs.28,25,256/- and the same was mentioned in the booking form. The cost includes 3BHK flat and G-Stilt Car parking bearing No.31 along with common amenities viz. School, Service Apartments, Convention Centre, 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. The payment of flat is to be released stage wise construction as per Annexures-A1 and A2 of sale-cum-construction agreement dt:11.01.2012. The opposite parties also executed registered sale deed on 18.01.2013 for the semi finished flat for Rs.13,64,000/-
3. That by the date of complaint (14.03.16), the complainants have paid Rs.28,07,390/- on various occasions to opposite parties and the opposite parties have issued receipts for all the payments, the accounts sheet issued by the opposite parties also filed. At the time of agreement, the builder / opposite parties have promised to handover the finished apartment by January2013 with a grace period of 4 months. The complainants have requested for general customization (additional facilities in the apartment / flat), for which the opposite parties have quoted Rs.1,52,000/- as additional cost for which the complainants agreed. Till date 90% of the cost of the flat was taken by the opposite parties. So far the complainants did not get possession of the flat. That the complainants have borrowed money from private lenders at higher rate of interest and paid the same to opposite parties. Due to inordinate delay in handing over the possession of the flat, complainants suffering financial loss.
4. That the opposite parties agreed in the sale-cum-construction agreement dt:11.01.2012 that they will pay compensation of Rs.5/- per sq.ft. per month after expiry of 4 months gross period from the schedule date of possession i.e. by January 2013, till the date of delivery of possession of the flat. The opposite parties / builders are avoiding to pay the delay compensation stating that it will be paid at the time of handing over the possession of the flat. The construction is in standstill position at present. The complainants further contended that even after 4 complete years of booking, unfinished apartment complex is exposed to sun and rain and the structures are very much affected due to non-plastering of bricks, pillars, beams and slab portion and rods are in the stage of corrosion and lost its strength. That the opposite parties did not complete the apartment complex as per schedule mentioned in the sale-cum-construction agreement. The opposite parties are stating that due to some bottlenecks only, they could not finish the construction as per the schedule. That the opposite parties are pressurizing the complainants to pay excess amount than the actual payment schedule agreed upon to speed-up the construction. Except the skeleton work, there is no visible construction activity in progress. That the complainants have borrowed Rs.20,00,000/- from private borrowers on higher rate of interest and paid the same to opposite parties for the flat. The un-due delay on the part of the opposite parties, complainants suffered both financially and mentally. That the opposite parties have adopted unfair trade practice and there is gross deficiency in service on the part of the opposite parties. Hence the complaint.
5. The opposite party No.1 filed written version and the same is adopted by opposite parties 2 to 4. In the written version, opposite parties denied parawise allegations in the complaint, except the allegations in para.4 of the complaint, and further contended that the complainants have violated the agreement clause No.24. Therefore, the complaint is not maintainable. This Forum has no jurisdiction to entertain the complaint. That the opposite parties 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 formation of 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.1954/- 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 the other customers not to pay the balance amounts. One C.Manohar, Civil Contractor and followers of the complainants have 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 2nd complainant Smt.T.Rajani, W/o. M.R.Prasad (1st complainant) has filed her chief affidavit as P.W.1 and got marked Exs.A1 to A11. One T.Ram Mohan, S/o. T.Venkatramana, authorized signatory of opposite parties filed evidence affidavit as R.W.1 and reported no documents on their behalf.
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 of compensation and
loss of rentals as prayed for?
(iii) To what relief?
10. Point No.(i):- to answer this point, the burden lies on the complainants. The complainants case is that they have purchased flat No.802 in 8th floor in Phase-II of Marg Vishwashakthi Venture launched by the opposite parties admittedly. Ex.A1 is the Booking Form dt:13.08.2011. The complainants paid advance amount of Rs.1,00,000/- at the time of booking flat. As per Ex.A1 the saleable area of flat No.802 is 1364 sq.ft and its cost is @ Rs.1954/- per sq.ft. Admittedly, the total cost of the flat is Rs.28,25,256/- and the payment of cost of the flat is to be paid as shown in Annexures - A1 and A2 of the sale-cum-construction agreement dt:11.01.2012 (Ex.A3). As per Annexure-A1 the sale consideration of Rs.28,25,256/- is to be paid stage wise as follows:-
a) Booking amount Rs. 1,00,000/-
b) (20% less booking amount) within 30 days from booking) Rs. 4,65,051/-
c) (10%) towards completion of 1st floor slab Rs. 2,82,525/-
d) (15%) towards completion of 3rd floor slab Rs. 4,23,788/-
e) (15%) towards completion of 5th floor slab Rs. 4,23,788/-
f) (15%) towards completion of 7th floor slab Rs. 4,23,788/-
g) (15%) towards completion of 9th slab Rs. 4,23,788/-
h) (10%) on possession Rs. 2,82,528/-
Total cost is Rs.28,25,256/-
11. Admittedly, as on the date of complaint (14.03.2016), the complainants have paid a sum of Rs.28,07,390/- on various occasions to the opposite parties. But as per the case of the complainants, the construction is in standstill position though 90% of the total cost of the flat was paid. In proof of the payment of 90% of the total cost Ex.A4 account statement issued by the opposite parties is filed by the complainants. That even after 4 complete years have been elapsed from the date of booking, the unfinished complex is exposed to sun and rain and the structures are very much affected due to non-plastering of bricks, pillars, beams and slab portion and rods are in the stage of corrosion and lost its strength.
12. That the opposite parties also agreed in the sale-cum-construction agreement dt:11.01.2012, that they will pay the compensation at Rs.5/- per sq.ft. per month in the event of any delay in handing-over the possession of the apartment after expiry of 4 months grace period. As the opposite parties have promised to handover the finished apartment by January 2013, the complainants were claiming the delay compensation from 01.06.2013 to 28.02.2016 with interest at 24% p.a. and also claiming same rate of delay compensation from the date of complaint till handing-over the possession of finished apartment. But, so far it is apparent that the opposite parties have not complied with the terms and conditions of the sale-cum-construction agreement including payment of the delay compensation.
13. The opposite parties in their written version contended that they have started the construction of Phase-II of Marg Vishwashakthi Venture and the work is in progress. That due to shortage of labour, sand and bricks, the project could not be completed within the stipulated time. They also further contended that due to bifurcation of State, Samaikyandhra Bandh, strikes by various political parties, non-availability of raw material, delay in approval by the Government and Government Regulations, due to exorbitant increase in the prices of raw material, unforeseen economic slowdown, delay by flat buyers in making payments and due to non-functioning of Sub Registrar Office at Tirupati, the opposite parties could not execute the registered sale deed in favour of the customers. As a consequence of state issue which resulted in non-payment by customers as chain reaction and the reasons were not uncommon in the integrated township development market. That apart the complainants have purchased the flat at Rs.1954/- per sq.ft. Unfortunately, due to increase in material and labour cost, the actual cost of construction grown up to Rs.3,200/- per sq.ft. Even then the opposite parties are not claiming the difference of cost. That the Government issued orders not to lift the sand, as such there is delay in the construction. The cost of the raw material and cement also abnormally increased in the open market, labour not available due to bandhs, heavy rainfall was there in Tirupati, resulting downfall in real estate business, as the situation was beyond the control of opposite parties, they could not complete the construction as mentioned in the agreement, that the opposite parties are going to work day to day, other customers also not paying the amounts as per the schedule. The opposite parties further asserted that unless the opposite parties receive the amounts from other customers, there is no possibility of progress in the work. The opposite parties are ready and willing to handover the flat to the complainants. Unnecessarily, this complaint is filed with an intention to harass the opposite parties. Still there are 42 unsold flats. Opposite parties are ready to discuss and arrive at an understanding and to complete the project. That the complainant has violated the arbitration clause-24 of the agreement, as such the complaint is not maintainable and that this Forum has no jurisdiction to entertain the complaint.
14. By virtue of the pleadings and evidence affidavit filed by the opposite parties, it appears that there is no dispute with regard to purchase of the flat by the complainants and payment of Rs.28,07,390/- that is 90% of the cost of the flat, but the opposite parties failed to show any progress in the construction of the flats. Admittedly, the opposite parties have raised the pillars and slabs were laid, except that no other constructions were made so far, as far as the flat of the complainants is concerned. Agreement was entered into by the parties on 11.01.2012. The booking was made under Ex.A1 dt:13.08.2011. Thus totally 5 complete years have been elapsed. Even now no progress is there in the construction, which clearly shows that the opposite parties have violated the terms and conditions of the sale-cum construction agreement under Ex.A3, in which the opposite parties have promised to deliver the finished flat by January 2013. Though January 2017 was already over, there is no progress in the construction. That apart the opposite parties themselves mentioned in the written version that unless the opposite parties receives the amounts from other customers there is no possibility for progress of the construction work, which clearly shows the intention of the opposite parties.
15. When the opposite parties have entered into a sale-cum-construction agreement on 11.01.2012, they are bound to complete the work within the stipulated time or within the grace period of 4 months thereafter. But the opposite parties trying to take advantage of state bifurcation issue, rainfall, bundhs and strikes etc., which were already over in the year 2014 itself, but even thereafter two complete years have been elapsed, inspite of it, work is in standstill position. 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. – Their Lordships held: “CP Act 1986 – Housing – Booking of Residential flat – Non-delivery of possession – Refund of amount sought – Deficiency in Service – Delay in completion of construction on account of alleged agitation by farmers could not be sustained by the opposite party – No evidence of having invited tenders for engagement of contractors / sub-contractors with adequate manpower for executing the work at the site of the project ….. opposite party shall refund entire amount of Rs.3,43,18,690/- paid to it by the complainants – Compensation in the form of simple interest @ 10% p.a. awarded. Litigation costs of Rs.10,000/- is awarded”. When the opposite parties also agreed to pay delay compensation at Rs.5/- per sq.ft. per month in the event of any delay in handing-over the possession of the flat, atleast they ought to have make the payment of delay compensation, but it seems that they are also not paying the delay compensation, having accepted 90% of total cost of the flat, they are still contending that the other customers have not paid the amounts as per the schedule. The payment schedule is specific as shown above with stage-wise construction, which necessitates the complainants to pay the amounts, but even without showing any progress and without completing the 1st floor, 3rd floor, 5th floor, 7th floor and 9th floor, they have already collected the amounts, which is quite unfortunate and this tendency of the opposite parties amounts to unfair trade practice. By virtue of Exs.A1 to A11, the complainants have established that there is deficiency in service on the part of the opposite parties. Accordingly, this point is answered.
16. Point No.(ii):- the reliefs that were sought for by the complainants are to direct the opposite parties to complete the construction work of flat No.802 in 8th floor, Block-G (Block No.303), which was purchased by the complainants in Marg Vishwashakthi Venture launched by the opposite parties. Another relief sought for is to direct the opposite parties to pay Rs.3,04,000/- towards compensation for the delay in completion of work and delivery of possession at Rs.5/- per sq.ft. from 01.06.2013 to 28.02.2016 and also for further period from the date of complaint with interest at 24% p.a. till handing-over of finished apartment. Another relief is to direct the opposite parties to pay Rs.16,00,000/- towards the loss of rent, interest paid on private borrowals, physical strain and mental agony suffered by the complainants and their family members due to the gross deficiency in service on the part of the opposite parties, and another relief is to direct the opposite parties to pay Rs.10,000/- towards costs of the complaint. So, in this regard, it was already discussed in point No.1 and observed that there is deficiency in service on the part of the opposite parties and they have violated the terms of Ex.A3 sale-cum-construction agreement. So far as 1st relief is concerned, it relates to deficiency in service in completing the flat No.802 in Phase-II of Marg Vishwashakthi Venture launched by the opposite parties. Though they have agreed to complete the construction of the flat by January 2013 with a grace period of 4 months, so far, they did not complete the construction. Complainants cannot be compelled to wait for an uncertain period till opposite parties are able to complete the construction of 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”. Therefore, the complainants are entitled for the compensation for delay in completion of the construction as agreed in Ex.A3 sale-cum-construction agreement dt:11.01.2012 @ Rs.5/- per sq.ft per month from 1st June 2013 onwards. The complainants have rightly claimed the said delay compensation.
17. As per Ex.A1 booking form the total extent of the flat is 1364 sq.ft and as on the date of booking, the rate of flat was at Rs.1849 + 70 + 85 – 50 = Rs.1954/- per sq.ft. The total cost of the flat is Rs.28,25,256/-. If the total extent of 1364 sq.ft is calculated for delay compensation 1364 sq.ft x 5 per sq.ft per month from June 2013 till April 2017 comes to total period of 3 years 10 months i.e. 1364 x 5 = 6820 per month, if it is for 3 years 6820 x 36 = 2,45,520/-, for 10 months 6820 x 10 = 68,200, total comes to 2,45,520 + 68,200 = Rs.3,13,720/- is to be paid by the opposite parties as agreed in the sale-cum-construction agreement Ex.A3. The complainants are also entitled for 10% of cost paid which comes to Rs.2,80,739/- towards deficiency in service and mental agony caused to the complainants. So far as other relief is concerned i.e. amounts from private borrowers is not established by the complainants by placing any iota of evidence, except their statement in the evidence affidavit. Therefore, the complainants are not entitled for the said relief as it was remained un-proved. Under the above circumstances, we are of the opinion that the complainants are entitled for the relief of delayed compensation, compensation for deficiency in service and mental agony and direction to the opposite parties to complete the construction of the apartment and also entitled for the costs of the litigation. Accordingly this point is answered.
18. Point No.(iii):- in view of our discussion on points 1 and 2 and since the complainants have established that there is deficiency in service on the part of the opposite parties and they are entitled for the delayed compensation and for delivery of vacant possession of the flat No.802 in 8th floor of Marg Vishwashakthi Venture, and entitled for costs of the complaint, and the complaint 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.802 in F8 floor in Block-G (Block No.303) 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 jointly and severally directed to pay a sum of Rs.3,13,720/- (Rupees three lakhs thirteen thousand and seven hundred and twenty only) towards compensation for the delay in completing the construction as agreed in clause-3 of Ex.A3 dt:11.01.2012 @ Rs.5/- per sq.ft per month from 01.06.2013 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.2,80,739/- (Rupees two lakhs eighty thousand seven hundred and thirty nine only) being 10% of the amount paid by the complainants towards 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.3,13,720/- 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 11th day of May, 2017.
Sd/- Sd/-
Lady Member President
APPENDIX OF EVIDENCE
Witnesses Examined on behalf of Complainant/s.
PW-1: T. Rajani (Chief Affidavit filed).
Witnesses Examined on behalf of Opposite Party/s.
RW-1: T. Ram Mohan (Chief Affidavit filed)
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s
Exhibits (Ex.A) | Description of Documents |
Booking Form (Notarized attested copy) Dt: 13.08.2011. | |
Allotment Confirmation Letter issued by Opposite Parties (Notarized attested copy). Dt: 30.08.2011. | |
Original Agreement of Sale, filed by complainants. Dt: 29.12.2011. | |
Account Statement showing payments made by Complainants. Dt: 23.01.2016. | |
Photo copy of Registered Sale Deed to the Complainants (Mee Seva Copy). Dt: 15.01.2013. | |
Office copy of Regd. Legal Notice with postal receipts and acknowledgements Dt: 04.02.2016. | |
Reply Notice. Dt: 17.02.2016. | |
Multi colored 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. |
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s
-NIL-
Sd/-
President
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to:- 1. The complainants.
2. The opposite parties.
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