Andhra Pradesh

Chittoor-II at triputi

CC/52/2016

Muppala Pranesh Kumar, S/o M. Kumara Swamy, rep. by their Special Power of Attorney P.Lakshmana Raju, S/o Venkata Raju, aged 62 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

 

THURSDAY, THE ELEVENTH DAY OF MAY, TWO THOUSAND AND SEVENTEEN

 

C.C.No.52/2016

Between

1. Muppala Pranesh Kumar, aged 36 years,

S/o. Mr. Muppala Kumara Swamy, Hindu

 

2. Lakshmana Veena Padmaraju, aged 34 years,

W/o. Mr. Muppala Pranesh Kumar, Hindu

 

      Both are residents at 735 N Haines Cir,

      Downingtown, PA 19335, USA.

      Represented by their Special Power of Attorney,

      P. Lakshmana Raju, S/o. Venkata Raju, Hindu, aged 62 years,

      Residing at No. 18-3-34/2, Khadi Colony, Tirupati.                  … Complainants

 

And

1. M/s MARG Business Park Private Limited,

Represented 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,

Represented 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,

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

Holding Regd.Office at D.No. 4/318,

Old Mahabalipuram Road,

Kottiwakkam, Chennai – 600 041.

 

4. M/s. MARG Limited,

Represented by its Authorised Signatory,

M. Chenga Reddy, S/o. M.Munirathnam Reddy,

Hindu, aged 57 years, residing at D.No. 19-3-D13,

Tiruchannor Road,  Tirupati – 517 501.                                   … Opposite parties

 

 

         This complaint coming on before us for final hearing on 27.04.2017 and upon perusing the complaint, written arguments of the complainant and other relevant material papers on record and on hearing of Sri.K.S.Vasu, counsel for the complainant and Sri. N.Manohar, counsel for the opposite parties 1 to 4 having stood over till this day for consideration, the Forum made the following.

 

ORDER

DELIVERED BY SMT. T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

        This complaint is filed by their Special Power of Attorney Holder P. Lakshmana Raju, S/o. Venkata Raju, on behalf of the complainants under Section 12 of the Consumer Protection Act, 1986 complaining the deficiency of service on part of the opposite parties and prayed this Forum to direct the opposite parties to complete the construction work and deliver the possession to the complainants and to pay a sum of Rs.2,25,060/- towards delay compensation from 01.06.2013 to 28.02.2016 and Rs.5/- per sq.ft., per month and further period from the date of the complaint along with interest @ 24% p.a. till the date of handing over the finished flat and to pay a sum of Rs.10,00,000/- towards interest paid to the house loan and private borrowals and for deficiency in service and for mental agony with further interest @ 24% p.a. from the date of the complaint till the date of handing over the finished apartment  and to pay a sum of Rs.10,000/- towards the costs of the litigation.  

         2.The brief facts of the case are:  The complainants booked a flat,  bearing No.606 in 6^TH floor in Block ‘G’ (Block No.303) in Phase-II in Marg Vishwashakthi Venture consisting of apartments viz., school, 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’s play area, gym and various other usual amenities  of  the opposite parties on 09.11.2011 by paying an advance of Rs.1,00,000/- and same was confirmed by the opposite parties and the price of the flat at the time of booking was Rs.28,92,536/- which includes 3BHK flat with an extent of 1364sq.ft., with G-Stilt car parking No.34 with common amenities. Till the  date of the complaint  the complainant paid Rs.20,39,315/- towards sale consideration. The complainant further stated that the payments of the flat is to be  released stage wise construction as per Annexures-A1 & A2 of the Sale-cum-construction Agreement dt: 03.04.2012 and also the opposite parties executed the registered sale deed dt: 16.01.2013 for semi finished flat for Rs. 13,64,000/- and also the complainants stated that at the time of agreement the opposite parties promised that they will hand over the possession of the flat by January, 2013 with grace period of four months. If there is any delay in delivery of the possession they will pay compensation of Rs.5/- per sq.ft., per month after four months grace period from the scheduled date of possession i.e. by January, 2013 until delivery  of the possession. But in this particular case by the date of the complaint the opposite parties collected 75% of the cost of the flat, but they failed to deliver the possession to the complainant and the complainants stated that they have taken loan from State Bank of Hyderabad and also from private money lenders with a higher rate of interest and accordingly they are paying interest to the banks as well as the money lenders. The complainant further stated that even after four years of booking the complainant has not completed the work and failed to deliver the possession of the flat to them. Hence they have sent emails dt:14.06.2013 but they have given reply that they will hand over the flat by June, 2014 with a grace period of four months and also the builder under took to pay interest and also delay compensation at the time of handing over the apartment, even after several reminders the opposite parties postponed to handing over the possession.  The complainant further stated that they availed loan  of Rs. 22,90,000/- from the State Bank of Hyderabad, Tirupati in the month January, 2013 stage wise disbursement was made to a tune of Rs.15,00,807/- and the rest of the loan amount was not released as apartment was not completed and hence the complainants have paid interest to the tune of  Rs.2,95,000/- to the Bank and also started paying monthly EMIs totally to a tune of Rs.1,39,600/- as on date of the complaint. And also they borrowed money from the private money lenders to a tune of Rs.5,38,508/-. Hence they incurred huge financial loss for the payment of the cost of the flat to the opposite parties. Hence in spite of several requests made by them the opposite parties failed to complete the construction and deliver the same to the complainant which is nothing but deficiency in serviced and unfair trade practice on part of the opposite parties. Finally the complainants got issued registered legal notice on 23.01.2016 to the opposite parties after receipt of the same the opposite parties issued reply notice dt: 17.02.2016 with all false and frivolous allegations. Hence they filed the present complaint.

          3. The opposite parties came in to appearance and filed the written version of the opposite party no.1 and same was adopted by the opposite parties 2 to 4. The opposite parties in their written version denied the allegations made in the complaint except the booking of the flat and further stated that they have completed the phase-I of the project consisting of 192 flats and handed over to their customers and they have been in peaceful possession in their flats. Subsequently, the opposite parties started phase-II and the work is in progress from day to day. The opposite parties further stated that due to shortage of labour, sand and bricks the project is not completed within stipulated time and also due to bifurcation of State of Andhra Pradesh,  Telangana and Samaikyandhra strikes and bundh they were unable to register the documents in favour of the customers due to non functioning of the Sub Registrar Office, Tirupati. The opposite parties further stated that the complainant booked the flat for Rs.1974/- per Sq.ft but, unfortunately due to increase the price of raw materials and labour charges the cost of the construction was also raised to Rs.3200/- per Sq.ft. The said difference amount also adjusting by them without demanding the complainant and others. Today, in the market the other promoters launched the projects with three times higher than the rate of the opposite parties. Hence the complainant investments in their project definitely provide better appreciation.

          4. The opposite parties further submitted that the Government policy with regard to sand issued G.O. not to lift the sand without prior permission of the Government. Hence there is a shortage of sand and non availability in or around the apartment area is also one of the reason for the delay in progress of the work. And also due to fluctuations in the real estate market and also due to heavy rain fall the fluctuations was happened in the real estate market which resulting the project was delayed due to unavoidable circumstances only and same was mentioned in the sale-cum-construction agreement that if any delay is caused is not beyond the control of opposite parties, the opposite parties is not liable to pay any damages to the complainants. The opposite parties further stated that the other customers also not cooperated for payment of the balance as per schedule. Hence unless they have received the payments from the other customers there is no possibility for progress of the work and also they are ready and willing to hand over the flats to the complainants as the work is in progress. The opposite parties further contended that the complainant unnecessarily approached this Forum with an intention to harass and defame in the society. Further the complainant provoked the other customers not to arrange the payment which are due by the other customers.

         The opposite parties further stated in the written version that one C.Manohar Civil Contractor taken away the raw material and machinery at the instance of the customers hence they approached the police not to obstruct the execution of the work. But unfortunately, recently the entire raw material was taken by the complainant followers without permission of the opposite party and create nuisance in the work place. Hence on the above circumstances they were unable to complete the construction work with in time. The opposite parties requires to advise the complainants to cooperate with them and not to create any deadlock in the project which will not be beneficial to the opposite parties and also to the complainants and they have more than 42 unsold units to sell and realize their payments. And also stated that they are ready to discuss and arrive any understanding mutually beneficial to the complainants and opposite parties to complete the project. But the complainants refused to hear their words and they have not             co-operate for the progress in work peacefully. Hence they have stated that there are no latches on their part, hence the complaint is liable to be dismissed.    

         5.  This complaint is filed by their Special Power of Attorney Holder P. Lakshmana Raju, S/o. Venkata Raju, filed his evidence on affidavit and got marked Ex:A1 to A20. On behalf of opposite parties one T.Ram Mohan, S/o. T.Venkataramana, authorized signatory field his evidence on affidavit and no documents were marked on behalf of them. Both counsels for the both parties filed their written arguments and oral arguments were heard.

        6.  Now the points for consideration are:             

             (i) Whether there is any delay in delivery of the possession of the flat to the complainant? if so, Whether there is any deficiency in service on part of the opposite parties?

             (ii) Whether the complainant is entitled to the reliefs as prayed for?

             (iii) To what Relief?

         7. Point No:-(i).   The main case of the complainant is, she booked  a flat bearing No.606 in opposite party’s venture under Ex:A2 dt: 09.11.2011 and the opposite parties executed sale-cum-construction agreement on 03.04.2012 under Ex:A3 and the cost of the flat is Rs.28,92,536/- and also the complainant stated that by the date of the complaint they paid Rs.20,39,315/- towards the sale consideration to the opposite parties in order to prove that Ex:A4, A5, A6, A7, A8, and A11 was filed. And also the complainant stated that the opposite parties registered the sale deed for semi finished flat dt;16.01.2013 i.e. Ex:A14 and also the complainant stated that the opposite parties promised to hand over the possession of the flat by January, 2013 with a grace period of four months if they failed to deliver the same within the stipulated period mentioned in the agreement i.e. Ex:A3 they promised to pay compensation of Rs.5/- per sq.ft per month and also the complainant stated that even after repeated requests made by them the opposite parties failed to deliver the same. Hence she filed the present complaint and also stated that in order to purchase the flat  they availed loan from State Bank of Hyderabad and the State of Bank of Hyderabad disburses the amount to a tune of Rs.15,00,807/- and the remaining amount was borrowed from the money lenders with higher rate of interest. Hence by the date of the complaint the opposite parties even not completed the construction work and failed to deliver the same to the complainant which is nothing but unfair trade practice on part of them.

          But the opposite parties filed the written version and argued that due to escalation of prices of the material they are unable to complete the construction work. And also due to lack of sand and due to shortage labor they have not completed the construction work and same was communicated to the complainant. But the complainant high handedly deputed one Manohar, the contractor took away the material which was laid in the construction site that is also one of the reason for non progression of the construction work in the said apartment. And also stated that the complainant purchased flat of Rs.1974/- per sq.ft., per month unfortunately material and labour was increased and the actual cost of the construction was grown up to Rs.3200/- per sq.ft and further stated that they are not demanding difference amount from the complainants. Hence today in the market the other promoters launched the project almost three times higher than the rate offered by the opposite parties. Hence the complainant definitely provides better appreciation because of the purchase of the said flat hence there are no latches on their part hence because of the above stated reasons the progress of the work was slowed down. Hence the contentions mentioned by the complainants are baseless and prayed that there is no deficiency in service on their part and the complaint is liable to be dismissed.   

         8. By perusing the record placed by both the parties there is no dispute regarding the purchase of the flat by the complainant from the opposite parties because same was admitted by the opposite parties and also Ex:A3 sale-cum-construction agreement and Ex:A14 sale deed reveals the same and also in Ex:A3 the construction agreement itself clearly shows that the opposite parties promised that, they will deliver the possession of the flat by June, 2014 with a grace period of four months if they failed to deliver the possession of the flat they will pay Rs.5/- per sq.ft., per month. Once they have agreed the conditions which were mentioned in their sale-cum-construction they cannot go back. Hence in this particular case the opposite parties mentioned several reasons for the delay in the construction work but, in order to prove those conditions they have not filed any single scrap of paper to prove the same and on behalf of the opposite parties no documents were marked. Hence in the absence of any documentary proof we cannot come to the conclusion that the opposite parties face several inconveniences for the completion of their project hence it could not accepted. As per the Ex:A15 clearly shows that the complainant availed loan from State Bank of Hyderabad and also under Ex:A4 to A8 and Ex:A11 clearly shows that the complainant paid almost 70% of the amount towards the sale consideration to the opposite parties. But the opposite parties failed to deliver the flat to the complainant even by the date of the complaint which is nothing but deficiency of service and unfair trade practice on part of them. Hence the complainant proved that there is deficiency in service on part of the opposite parties. Hence this point is answered accordingly.

        9. Point(ii):-    The complainant claimed delay compensation from the opposite parties as they failed to deliver the possession as mentioned in Ex:A3 i.e. sale-cum-construction agreement in Para 13 clause(1) it was mentioned that they will deliver the possession by January, 2013 with a grace period of four months but the opposite parties has not delivered the possession as mentioned in the agreement. Hence on those circumstances the complainants are entitled of Rs.5/- per sq.ft., per month as a compensation for delay in delivery of the possession of the apartment purchased by the complainant which comprises 1364sq.ft i.e. 1364X5=6820/- per month, as the complainant failed to deliver the possession with a grace period from January 2013 to May 2013. Hence the complainant is entitled of compensation of Rs.5/- per sq.ft., per month from June, 2013 to April 2017 =42months, 6820X42= 2,86,440/-. Hence the complainants are entitled for the compensation of Rs. 2,86,440/- for 42 months as delay in delivery of the possession. The complainant further claimed Rs.10,00,000/- towards interest paid to the private borrowals and also for mental agony suffered by them and further interest @ 24% p.a. from the date of the complaint till the handing over the possession of the flat. But in this particular case it was clearly reveals that as per Ex:A4 to A8 and A11 clearly shows that the complainant paid Rs.20,39,315/- towards cost of the apartment. Hence it is reasonable to grant 10% interest of the above said amount of Rs.20,39,315/- is Rs. 2,03,931/- towards compensation  and also the complainants are entitled  a sum of Rs.2,000/- towards the cost of the litigation. 

        10.Point (iii):-   In view of our discussions of the points 1 and 2 we are of the opinion that the complainants have established that there is deficiency in service on part of the opposite parties towards the construction of the apartment purchased by them and to deliver the possession to them. Hence they are entitled for the compensation for delay in delivery of the possession and also damages for mental agony and deficiency in service and costs of the litigation, as such the complaint is to be allowed.

          In the result, complaint is allowed in part, a) directing the opposite parties 1 to 4 jointly and severally to pay an amount of Rs. 2,86,440/- ( Rupees two lakhs eighty six thousand four hundred and forty only)within one month from the date of receipt of copy of this order towards compensation in delay in completion of the construction work for the period from 01.06.2013 to April, 2017,  b) the opposite parties are further directed to pay a sum of Rs.2,03,931/- (Rupees two lakhs three thousand nine hundred and thirty one only) towards compensation for mental agony and deficiency in service on part of the opposite parties which is 10% of the amount Rs.20,39,315/- paid by the complainant. The above said amount shall pay along with interest @ 9% p.a. from the date of receipt of copy of this order till delivery of the possession, c) the opposite parties are further directed to complete the construction work within three months from the date of the order and deliver the possession to the complainant on receipt of the balance sale consideration and to pay Rs.2,000/- (Rupees two thousand only) towards litigation,  d) the opposite parties are further directed to comply with the order within stipulated period mentioned above failing which, the above mentioned delay compensation amount of Rs.2,86,440/- (Rupees two lakhs eighty six thousand four hundred and forty only) shall carry interest @ 9% p.a. from the date of the complaint till the date of realization.

         Dictated to the stenographer, transcribed and typed by her, 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: P. Lakshmana Raju (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
	Special Power of Attorney (Notarized attested copy). Dt: 12.03.2016.
	Booking Form (Notarized attested copy) Dt: 09.11.2011.
	Sale-cum-construction agreement in favour of 1st complainant (Photo copy along with Notarized) Dt: 06.02.2012.
	Receipt No.1063 issued by Marg Limited. Dt: 18.11.2011.
	Receipt No.2102 issued by Marg Limited. Dt: 19.01.2013.
	Receipt No.2103 issued by Marg Limited. Dt: 19.01.2013.
	Receipt No.2490 issued by Marg Limited. Dt: 23.08.2013.
	Receipt No.2644 issued by Marg Limited. Dt: 15.12.2014.
	Payment request letter by Marg Limited.  Dt: 22.11.2013.
	Payment request letter by Marg Limited.  Dt: 24.05.2014.
	Payment request letter by Marg Limited.  Dt: 02.12.2014.
	Payment request letter by Marg Limited.  Dt: 12.06.2015.
	Payment request letter by Marg Limited.  Dt: 14.08.2015.
	Photo copy of Regd. Sale Deeds to the complainants. Dt: 10.01.2013.
	Housing Loan letter from State Bank of Hyderabad, Main Branch, Tirupati. Dt: 15.05.2012.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 23.01.2016.
	Reply Notice. Dt: 17.02.2016.
	Multi colored Brochure of the opposite parties.
	Email given by the opposite parties (Notarized attested copy).                         Dt: 14.06.2013.
	Calculation Memo.

 

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.