Andhra Pradesh

Chittoor-II at triputi

CC/40/2016

Bomminene Sreedhar, S/o B.Subbanna, rep. by his General Power Of Attorney Holder B.K.Ramesh Babu, S/o. B.Krishna Moorthy, aged 42 years, - Complainant(s)

Versus

M/s MARG Business Park Private Limited, Represented by its Power of Attorney Agent, Development Agre - Opp.Party(s)

K.S.Sridhar, K.S. Vasu

11 May 2017

ORDER

         

 

                                                                                                Filing Date:-24-03-2016                                                                                                               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.40/2016

Between

Bomminene Sreedhar, S/o. B. Subbanna,

Hindu, aged 44 years,

Resident of 38, Dove Street,

Scarbrough, Tobago, West Indies,

 

Rep. by his General Power of Attorney Holder,

B.K. Ramesh Babu, S/o. Late B. Krishna Moorthy,

Hindu, aged 42 years, residing at 2-150-E-1-2

Reddy’s Colony, Kadiri Road,

Madanapalli, Chittoor District.                                                          … Complainant

 

And

1. M/s MARG Business Park Private Limited,

Represented by its Power of Attorney Agent,

Development agreement holder M/s Marg Limited,

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 Power of Attorney Agent,

Development agreement holder M/s Marg Limited ,

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

Old Mahabalipuram Road,

Kottiwakkam, Chennai – 600 041.

 

3. M/s. MARG Limited,

Represented by its Authorised Signatory,

S.Satish S/o. S.Ramamurthy,

Hindu, aged not known to Complaints, holding his Office

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

Kottiwakkam, Chennai – 600 041.

 

4. M/s. MARG Limited,

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

Holding his office at the Site at Kotramangalam,

Renigunta Mandalam, Tiruchanur Byepass Road,

Tirupati.                                                                                     … 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 his General power of attorney holder, B.K.Ramesh Babu, S/o. Late B.Krishna Moorthy on behalf of the complainant 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 by duly executing the registered conveyance deed in favour of the complainant and to directing the opposite parties to pay to the complainant a sum of Rs.1,50,040/- towards delay compensation from 01.05.2014 to 28.02.2016 at Rs.5/- per sq.ft., per month and for further period from the date of this complaint along with interest @ 24% p.a. from the date of the complaint till the date of handing over the finished apartment and to directing the opposite parties to pay a sum of Rs.13,00,000/- towards the interest paid to the private borrowals, physical strain and mental agony suffered by the complainant for gross deficiency in service with further interest @ 24% p.a. from the date of the complaint till the date of handing over the finished apartment and awarding costs of Rs.10,000/- towards litigation.

         2.The brief facts of the case are:  The complainants booked a flat bearing No.402 in F4 floor in Block ‘G’ (Block No.303) in Phase-II in Marg Vishwashakthi Venture consisting of apartments 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 with car parking of opposite parties on 30.05.2011 by paying an advance of Rs.1,00,000/- and same was confirmed by the opposite parties by letter dt: 07.06.2011. The cost of the flat at the time of booking was

Rs.27,02,496/-  and the same is mentioned in the booking form. The cost includes the 3BHK flat, with an extent of 1364 sq.ft., G-Stilt car parking No.15 along with above common amenities. The payment of the flat is to be released stage wise construction as per Annexures-A1 & A2 of the Sale-cum-construction Agreement dt: 18.10.2012. The complainants further stated that by the date of filing of the complaint he has paid Rs.19,39,842/- on various occasions to the opposite parties towards sale consideration to the opposite parties, the opposite parties  issued receipts for all the payments. The complainants stated that the opposite parties promised to hand over the finished apartment by December, 2013 with a grace period of four months. Hence he has paid 72% of the sale consideration to the opposite parties by the date of filing of the complaint and as he borrowed said money from the private lenders with a higher rate of interest in order to pay the sale consideration to the opposite parties. The complainant further stated that after receipt of the said amount the opposite parties has not delivered the possession as mentioned in the sale-cum-construction agreement and also stated that if they failed to deliver the possession by December, 2013 with a grace period four months they will pay compensation of Rs.5/- per sq.ft., per month towards delay compensation for the delay in delivery of the possession.

        The complainant further submits that after four years of booking the construction was not yet completed and also it is in the skeleton stage. After repeated requests and mails given by the complainant the opposite parties sent a letter that they will hand over the possession by December, 2014. But they postponed the date for handing over the possession as the work is in progress, but so far as there is no progress in the construction work as state by the opposite parties.  Hence the complainant got finally issued registered legal notice on 25.01.2016 calling upon the opposite parties to deliver the flat after receipt of the said notice they have not taken any steps to deliver the possession to the complainant and on 17.02.2016 they gave a reply notice with all false frivolous allegations. Hence the complainant filed this 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 bandh 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.2450/- per Sq.ft but unfortunately due to increase in 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 co-operated 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 approach 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 creates nuisance in the work place. Hence on the above circumstances, they were unable to complete the construction work with in time. The opposite parties request 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 not to cooperate 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 the General Power of Attorney Holder B.K.Ramesh Babu, S/o. Late B.Krishna Moorthy, on behalf of complainant, filed his evidence on affidavit and got marked Ex:A1 to A10. 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 the opposite parties. Both counsels for the 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).  There is no dispute regarding the purchase of the flat by the complainants from the opposite party’s venture and same was admitted by them. As per the contention of the complainant that he booked a flat on 30.05.2011 under Ex:A1 and the said apartment consists of 1364sq.ft., by paying an advance of Rs.1,00,000/- and the total cost of the flat is Rs.27,02,496/- and same was confirmed by the opposite parties under Ex:A2 the confirmation letter dt: 06.07.2011. The complainant stated that by the date of the complaint he has paid Rs.19,39,842/- as per Ex:A4 issued by the opposite parties as he paid almost 90% of the sale consideration to the opposite parties. The complainant further stated that as per Ex: A3 sale-cum-construction agreement it is clearly stated that on Para 13 clause(1) they will deliver the possession by         December, 2013 with a grace period of four months and also they have promised that if they failed to deliver the possession they will pay Rs.5/-per sq.ft., per month for delay compensation. But in this particular case, even after repeated letters and reminders issued by the complainant the opposite parties have not completed the construction work and issued mails that they will deliver the possession by December,2014 but they have not deliver the same. Hence finally the complainant caused a legal notice on 25.01.2016 under Ex:A5 after receipt of the same they issued reply notice dt:17.02.2016 under Ex:A6 with all false and frivolous allegations and clearly shows that the work was not yet completed and the work was in preliminary stage. As already seven years were lapsed and also stated that as per the conditions of the sale-cum-construction  agreement they have not completed the construction work and deliver the possession to them which is nothing but deficiency in service on part of the opposite parties.  

        8. The counsel for the opposite parties argued that they have completed the Phase-I of their project consists of 192 apartments and handed over to the customers. Subsequently they have started Phase-II and the work is in progress from day to day and also due to shortage of labour and material i.e. sand and bricks the project was not completed within stipulated period due to Samaikyandhra agitations and also delays in regarding various approvals and Government Regulations. The opposite parties further stated that due to escalation of the prices of the raw material they have not completed the construction in time and they were unable to register the documents in favour of the complainant because of non functioning of the sub registrar office in Samaikyandha agitation. And also stated that because of lack of sand and also due to shortage of labour they have not completed the construction work and also same was communicated to the complainants and also the opposite parties stated that the complainants purchased the flat for Rs.1889 per sq.ft.,. but now the cost was increased for Rs.3200 per sq.ft., and the said difference amount was also not demanded the complainants by them. And also stated that today in the market the several promoters launched the projects almost three times higher than the price which they offered and it is sure that the complainant’s investment in their project definitely provided better appreciation.  The opposite parties counsel further argued that their project is a heavy project hence the progress of the work was going on day to day. But due to unforeseen circumstances like heavy rain and shortage of labour the progress of work will slowdown and hence there are no latches on their part. Hence the complainant is not entitled for the compensation as prayed for and prayed that the complaint is liable to be dismissed.

         9.But by perusing the record placed by both the parties there is no dispute regarding the purchase of the flat by the complainants from the opposite parties because same was admitted by them and also Ex:A3 the construction agreement itself clearly shows that the opposite parties promised that, they will deliver the possession to the complainants by December, 2013 with a grace period of four months and also they have mentioned in Para 13 clause (1) of the said agreement, if they failed to deliver the possession they will pay Rs.5/- per sq.ft., once they have agreed the conditions which was incorporated in sale-cum-construction agreement they cannot go back. Hence in this particular case the opposite parties mentioned several reasons for the slowdown of the progress in the construction work. But in order to prove those contentions 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 the construction work and hence it could not be accepted. The opposite parties collected amounts but they have not completed the venture as per their sale-cum-construction agreement which is nothing but unfair trade practice and deficiency in service on part of the opposite parties. As the complainants invested the hard earned money in the opposite party’s venture in order to own the flat but which is of no use. The complainant established that the opposite parties committed deficiency in service in delay in delivery of possession of flat to him. Hence on those circumstances we are of the opinion that there is deficiency in service on part of the opposite parties towards the complainants.

        10.Point(ii):- As per Ex:A1 clearly shows that the cost of the flat was Rs.27,02,496/- and by the date of the complaint the complainant paid Rs.19,39,842/- which is almost 80% of the sale consideration but even after receipt of 80%  of sale consideration they failed to deliver the possession. Hence as per their agreement i.e. Ex:A3 the opposite parties has to pay delay compensation of Rs.5/- per sq.ft., per month, if they failed to deliver the possession with a grace period of four months                     from December, 2013to April 2014. The opposite party has to pay compensation of Rs.5/- per sq.ft per month from i.e. 01.05.2014 to 30.04.2017 i.e. 35 months Rs.5X1364sq.ft=6820 per month X35months=2,38,700/-.Hence the complainant is entitled of Rs.2,38,700/- towards delay compensation for delay in delivery of possession and also as per Ex:A4 clearly shows that the complainant has paid Rs.19,39,842/- towards sale consideration  as already five years was lapsed. Hence he is entitled 10% interest of the above said amount i.e. 1,93,984/- towards compensation for mental agony and deficiency in service. Hence this point is answered accordingly.

        11.Point (iii):-   In view of our discussions in  points 1 and 2 we are of the opinion that the complainants has established that there is deficiency in service on part of the opposite parties towards the construction of the apartment purchased by them and 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 accordingly.

         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.2,38,700/- (Rupees two lakhs thirty eight thousand seven hundred 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 May, 2014 to April, 2017 b) the opposite parties are further directed to pay a sum of Rs.1,93,984/- (Rupees one lakh ninety three thousand nine hundred and eighty four only) towards compensation for mental agony and deficiency in service on part of the opposite parties which is 10% of the amount Rs.19,39,842/- 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 by executing the registered sale deed 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.2,38,700/- (Rupees two lakhs thirty eight thousand seven hundred 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:  B.K. Ramesh Babu  (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
	Calculation sheet booking form (Notarized attested copy) Dt: 29.05.2011.
	Allotment confirmation letter issued by opposite parties (Notarized attested copy) Dt: 07.06.2011.
	Original Agreement of Sale, filed by complainants. Dt: 23.05.2012.
	Account statement showing payments made by complainants (Notarized attested copy) Dt: 07.01.2016.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgments. Dt: 25.01.2016.
	Reply Notice . Dt:17.02.2016
	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.
	General  power of Attorney by complainant (Notarized attested copy)          Dt: 23.05.2012.
	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 Complainant.

                  2) The Opposite parties.