Andhra Pradesh

Chittoor-II at triputi

CC/41/2016

Busi reddy Nitya Pooja Reddy, S/o. P.Subba Reddy - 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:-25-04-2016                                                                                                               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.41/2016

Between

Busi Reddy Nitya Pooja Reddy S/o. P. Subba Reddy,

Hindu, aged 33 years, residing at

Hotel Shankarappa, Mamilla Kunta Cross,

Puttaparthi, Anantapur 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 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  of the flat and deliver the possession of the same to the complainant with all amenities agreed upon by the opposite parties and to directing the opposite parties to pay to the complainant  a sum of Rs.1,86,560/- towards delay compensation from 01.06.2013 to 28.02.2016 at 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.11,50,000/- towards the interest paid to the 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 complainant booked a flat bearing No.304 in F3 floor in Block ‘F’ (Block No.202) 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.22,10,994/-  and the same is mentioned in the booking form. The cost includes the 2BHK flat, F-Stilt car parking bearing No.43 along with above common amenities. The payments for the flat is to be released stage wise construction as per Annexures-A1 & A2 of the Sale-cum-construction Agreement dt: 05.12.2011. The complainants further stated that by the date of the filing of the complaint he has paid Rs.14,60,994/- on various occasions to the opposite parties towards sale consideration and the opposite parties  issued receipts for all the payments. The complainant further stated that at time of  agreement the opposite parties promised to hand over the finished apartment by January, 2013 with a grace period of four months, it they failed to deliver the possession they will pay Rs.5/- per sq.ft., per month towards delay compensation for the delivery in possession. Hence the complainant has paid 66% of the sale consideration to the opposite parties and he has borrowed money from LIC housing finance and also from private lenders at a higher rate of interest and paid the same to the opposite parties. Hence because of the in ordinate delay in handing over the possession of the finished flat by the opposite parties the complainant faced financial loss every month. Hence after four years of booking the complainant is found that un finished apartment complex is exposed to sun, and rain for years and the structural soundness of the apartment complex is very much affected  due to non plastering of bricks and pillars, beams and in the slab portion the rods are in the stage of corrosion and lost its strength.

         3. The opposite parties have not completed the apartment as per the schedule mentioned in the sale-cum-construction agreement. Moreover the opposite parties have exerted pressure to get the sale deed registered for semi finished flats though roof was not even completed. The complainant got the sale deed registered on 16.01.2013 even though skeleton work was not even completed. After the  registration of sale the opposite parties literally slowed down construction of the project and stopped the construction work in the entire site from June, 2013. After several repeated reminders letters sent by the complainant the opposite parties sent mail that they will start construction and hand over the flat by December, 2014 but they postponed the same. Because of the in action of the opposite parties the complainant suffered huge financial loss and also suffered mental agony because of the deficiency in service on part of the opposite parties. Hence he got issued legal notice on 23.01.2016 to the opposite parties, even after receipt of the legal notice they have not completed the same but, they have given reply notice on 17.02.2016 with all false and frivolous allegations. Hence he filed the present complaint.  

        4. 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 complete the construction work. 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.

         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 in favour of nuisance in the work place. Hence on the above circumstances and they were unable to complete the construction work with in time. The opposite parties requests 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.  The complainant  filed his evidence on affidavit and got marked Ex:A1 to A14. On behalf of opposite parties one T.Ram Mohan, S/o. T.Venkataramana, authorized signatory filed his evidence on affidavit and no documents were marked on behalf of the opposite parties. 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).  There is no dispute regarding the purchase of the flat by the complainant from the opposite parties same was admitted by them. As per the contention of the complainant that he booked a flat on 30.05.2011 by paying an advance of Rs.1,00,000/- under Ex:A1 the above apartment consists of 1166sq.ft., and the total cost of the flat Rs.22,10,994/- and same was confirmed by the confirmation letter issued by the opposite parties dt:07.06.2011. The opposite parties further contended that he has paid an amount of Rs.14,60,994/- as per Ex:A4 and also the complainant stated that as per Ex:A3 sale-cum-construction agreement the opposite parties stated that they will deliver the possession of the flat by June, 2013 with a grace period of four months, if they failed to deliver the same they will pay Rs.5/- per sq.ft., per month. But in this particular case the opposite parties has received amount of Rs.14,60,994/- i.e.66% of the cost of the flat. Even after receipt of the same they have not completed the construction of the flat and also the work is in pending. Hence the date of the booking of the flat under Ex:A1 dt:30.05.2011 and also under Ex:A3 the opposite parties has to deliver to possession by June, 2013 with grace period of four months even after lapse of four years from June, 2013. The opposite parties has not completed the construction work have not taken any steps to deliver the possession to the complainant 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 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 delay 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 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. But today in the market the several promoters launched the projects almost three times higher than the price which they offered. Hence it is sure that the complainants’ investment in their project definitely provided better appreciation. The opposite parties counsel vehemently 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 complainants are 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 January, 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 huge amounts from the complainant but they have not completed the venture as per their agreement of sale-cum-construction 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. 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 the cost of the flat is Rs.22,10,994/- even after receipt of the 66%  of the cost the opposite parties has not taken any steps to deliver the possession to the complainant. Hence as per Ex:A3 the sale-cum-construction deed in Para 13 clause(1) clearly states that they will deliver the possession by January, 2013 with a grace period of four months. Hence they failed to deliver the same they will pay Rs.5/- per sq.ft., per month hence on those circumstances the complainant is entitled of Rs.5 per sq.ft per month X1166sq.ft=Rs.5830 per month from 01.06.2013 to 30.04.2017= i.e.46 months=46X5830=Rs.2,68,180/- towards delay compensation for delivery in possession. As Ex:A4 clearly shows that the complainant has paid Rs.14,60,994/- towards sale consideration hence the complainant is entitled of Rs.10% interest of the above said amount i.e. Rs.1,46,099/- towards compensation for mental agony and deficiency in service on part of the opposite parties. The opposite parties are further directed to pay Rs.2,000/-  towards costs of the litigation.

       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.2,68,180/- (Rupees two lakh sixty eight thousand one hundred and eighty only) within one month from the date of receipt of copy of this order towards compensation in delay in completion 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.1,46,099/- (Rupees one lakh forty six thousand ninety only) towards compensation for mental agony and deficiency in service on part of the opposite parties which is 10% of the amount Rs.14,60,994/- 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 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 from the complainant 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.2,68,180/-(Rupees two lakh sixty eight thousand one hundred and eighty 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:  Busi Reddy Nitya Pooja 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) Dt: 30.05.2011.
	Allotment confirmation letter issued by opposite parties (Notarized attested copy) Dt: 07.06.2011.
	Sale-Cum-Construction agreement in favour of 1st complainant (Notarized attested copy) Dt: 11.04.2011.
	Account statement showing payments made by complainants (Notarized attested copy) Dt: 23.02.2011.
	Registered sale deed to the complainant (Mee Seva Copy) Dt: 16.01.2013.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgments. Dt: 23.01.2016.
	Reply Notice . Dt:17.02.2016
	Multi Coloured Brochure of the opposite parties.
	Letter of the opposite parties. (Original) Dt: 22.11.2013.
	Letter of the opposite parties. (Original) Dt: 24.05.2014.
	Loan account statement of LIC Housing Finance.(Attested Copy)                      Dt: 12.01.2013.
	Email by the complainant. Dt: 09.03.2014.
	Email by the complainant. Dt: 23.12.2013.
	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.