Andhra Pradesh

Chittoor-II at triputi

CC/55/2016

C.Prasanna Kumar, S/o C.Muniratnam Naidu, rep. by his Special Power of Attorney holder C.Saritha, W/o R.Jagadeesh - 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:-27-04-2016                                                                                                               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.55/2016

Between

C. Prasanna Kumar, S/o. C. Muniratnam Naidu,

Hindu, aged 45 years,

Residing at Post Box No.2260, Postal Code-112,

Ruwi, Sulthanate of Oman

 

Rep. by his Special Power of Attorney Holder,

C.Saritha, W/o. R.Jagadeesh,

Hindu, aged 38 years, residing at GKN Kandriga,

Kammapalli Post, RC Puram Mandal, 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 Special Power of Attorney Holder, C.Saritha, W/o. R.Jagadeesh 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 to the complainant with all amenities agreed upon by duly executing registered sale conveyance deed in favour of the complainant, and to directing the opposite parties to pay a sum of Rs.1,28,700/- 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 possession of finished apartment and also by directing the opposite parties to pay a sum of Rs.11,00,000/- towards the interest paid to 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 apartment and  a sum of Rs.10,000/- towards costs of the litigation.

         2.The brief facts of the case are:  The complainants booked a flat bearing No.708 in F7 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 31.07.2010 by paying an advance of Rs.50,000/- and same was confirmed by the opposite parties by the letter dt:02.08.2010 and the cost of the flat at the time of booking was Rs.19,95,730/- which includes 3BHK flat with an extent of 1170sq.ft the cost covered the car parking with common amenities and the payments of the flat is to be release stage wise construction as per Annexure A1 and A2 of the sale-cum-construction agreement dt: 24.05.2012. The complainant further submits that till the date of the complaint he has paid Rs.13,42,605/- on various occasions to the opposite parties and the opposite parties issued receipts for all the payments. The complainant further submits that the opposite parties have promised to hand over the finished apartment by December, 2013 with a grace period of four months and same was mentioned in the sale-cum-construction agreement dt:24.05.2012. The complainant stated that he has paid almost 67% of the sale consideration by borrowing monies from private lenders at higher rate of interest and paid the same to the opposite parties. As the opposite parties did not deliver the possession to the complainants which results financial loss from the complainant.

         The complainant further stated that the opposite parties promised that if there is any delay in handing over the possession they pay compensation of Rs.5/- per sq.ft., per month after the four months grace period i.e. by December, 2013 and till the delivery of the possession.  Hence even after five years of booking the construction is still in un finished stage and failed to deliver the possession to the complainant even after repeated requests made by the complainant. After several reminders given by the complainant the opposite parties stated that they will hand over the possession by December, 2014 but they failed to do their part. Hence finally he got issued registered legal notice on 23.01.2016 calling upon the opposite parties to deliver the apartment to the complainant on 23.01.2016. But the opposite parties did not comply with the request of the complainant and issued reply notice on 17.02.2016 with all false and frivolous allegations. Hence he 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.The opposite parties further stated that the complainant booked the flat for Rs.1569/- 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 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 approached this Forum with an intention to harass and defame them in the society. Further the complainant provoked the other customers not to arrange the payment which are due by them.

           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 away 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 not to 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 her Special Power of Attorney Holder C.Saritha, W/o. R.Jagadeesh 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 filed his evidence on affidavit and no documents were marked on behalf of the opposite parties. Both counsels for both 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 complainant from the opposite parties venture because same was admitted by them. The main contention of the complainant is, she booked a flat on 31.07.2010 by paying an advance of Rs.50,000/-  under Ex:A1 and the total cost of the flat is Rs.19,95,730/- the apartment consists of 1170/- sq.ft. And also the opposite parties executed the sale-cum-construction agreement on 24.05.2012 in favour of the complainant under Ex:A3 and also stated that by the date of the complaint she has paid Rs.13,42,605/- under Ex:A4 and A5. Even after receipt of the said amount the opposite parties has not deliver the possession to the complainant. Hence the complainant further stated that in the agreement of sale it was clearly mentioned that in Para 13 clause(1) that the opposite parties will deliver the possession by December, 2013 with a grace period of four months if they failed to deliver the possession within stipulated period they will pay amount of Rs.5/- per sq.ft., per month towards delay compensation. And also the complainant stated that they failed to deliver the same hence because of in action of the opposite parties she sustained huge financial loss and she suffered mental agony 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 is caused 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 not able to register the documents in favour of the complainants for the non functioning of the sub registrar office. 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.1569/- 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 complainant is not entitled for the compensation as prayed for and prayed that the complaint is liable to be dismissed.          

        9. 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 faced 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 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.  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. Hence this point is answered accordingly.

       10.Point(ii):-   As per Ex:A4 dt:22.05.2013 and A5 dt: 21.08.2013 shows that the complainant has paid Rs.13,42,605/- towards sale consideration of the flat, as the cost of the flat is Rs.19,95,730/- hence the complainant has paid 67% of the cost of the flat. But even after receipt of the said amount the opposite parties did not deliver the possession to the complainant. Hence as per Ex:A3 the opposite parties failed to deliver the possession by December, 2013 with a grace period of four months. Hence on those circumstances it is just and proper to grant Rs.5/- per sq.ft., per month= 5X1170=Rs.5850/- from 01.05.2014 to 30.04.2017=35months=35monthsX5850=2,04,750/-towards delay compensation and also as per Ex:A4 and A5 clearly shows that the complainant has paid Rs.13,42,605/- towards sale consideration. Hence it is reasonable to grant 10% interest of the paid amount by the complainant i.e. Rs.1,34,260/- towards compensation for mental agony and deficiency in service and also he is entitled to a sum of  Rs.2,000/- towards costs of the litigation. 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.2,04,750/-(Rupees two lakhs four thousands seven hundred and fifty 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.1,34,260/- (Rupees one lakh thirty four thousand two hundred and sixty only) towards compensation for mental agony and deficiency in service on part of the opposite parties which is 10% of the amount Rs.13,42,605/- 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 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. 2,04,750/- 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 March, 2017.

            Sd/-                                                                                                   Sd/-

    Lady Member                                                                                                      President           

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant.

 

PW-1: C. Saritha (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: 31.07.2010.
	Allotment Confirmation Letter issued by Opposite Parties (Notarized attested copy). Dt: 02.08.2010.
	Original Agreement of Sale, filed by complainants. Dt: 23.05.2012.
	Payment request letter made by Opposite parties (Notarized attested copy). Dt: 22.05.2013.
	Receipt (No: 2481) issued by the opposite parties (Notarized attested copy). Dt: 21.08.2013.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 23.01.2016.
	Reply Notice. Dt: 17.02.2016.
	Letter of the opposite parties (Notarized attested copy). Dt: 14.10.2015.
	Calculation Sheet.
	Special Power of Attorney of the Complainant (Notarized attested copy).     Dt: 16.03.2016.

 

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.