Andhra Pradesh

Chittoor-II at triputi

CC/33/2016

Challa Vinod Kumar, S/o S.Muni Krishna moorthy, rep. by authorized agent C.Udaya Niharika, W/o C.Vinod Kumar - 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: 31.03.2016

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.33/2016

 

 

Between

 

 

1.         Challa Vinod Kumar,

            S/o. S.Muni Krishna Moorthy,

            Hindu, aged 42 years,

            Rep. by Authorised Agent C.Udaya Niharika,

            C/o. C.Vinod Kumar.

 

2.         Challa Udaya Niharika,

            W/o. Challa Vinod Kumar,

            Hindu, aged 36 yeas,

 

Both are residents of

D.No.3-1-70, Plot No.VI/3,

4^th Cross (West) 1^st Street, behind Water Tank,

Vidyanagar Colony,

Tirupati.                                                                                 … Complainants.

 

 

 

And

 

 

1.         M/s. MARG Business Park Private Limited,

            Rep. 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,

            Rep. 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,

            Rep. by its Authorised Signatory,

            S.Satish, S/o. S.Ramamurthy,

            Hindu, aged not known to complainants,

            Holding his office at

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

            Kottiwakkam,

            Chennai – 600 041.

 

4.         M/s. MARG Limited,

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

            Holding his office at the site at Kotramangalam,

            Renigunta Mandal,

            Tiruchanur Byepass Road,

            Tirupati.                                                                     …  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  1 to 4 for the following reliefs 1) to direct the opposite parties to complete the construction work of the flat No.504 in F5 floor in Block-E in Phase-II, in Marg Vishwashakthi Venture, Kotramangalam village accounts, Renigunta Mandal, Tirupati, and deliver possession of the same to the complainants and execute registered sale deed in favour of the complainants, 2) to direct the opposite parties to pay Rs.2,20,160/- towards delay compensation for the period from 01.06.2013 to 28.02.2016 at Rs.5/- per sq.ft. per month and for further period along with interest at 24% p.a. from the date of complaint till handing over the finished apartment, 3) to direct the opposite parties to pay Rs.14,00,000/- towards the interest paid on private borrowals, physical strain and mental agony etc. suffered by the complainants and their family members for gross deficiency in service on the part of the opposite parties with interest at 24% p.a. from the date of complaint till the date of handing over of the finished apartment, 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 have purchased flat No.504 in F5 floor in Block-E (Block No.304) in Phase-II of Marg Vishwashakthi Venture launched by the opposite parties on 14.01.2011 by paying Rs.1,00,000/- advance amount and the allotment of the flat was confirmed by the opposite parties by letter dt:19.01.2011. The cost of the flat is Rs.25,80,384/-, and the same is mentioned in booking form. The cost includes 3BHK flat, e-open car parking along with common amenities viz. School, Service Apartments, Convention Center, 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. By the time of agreement, the opposite parties have promised to deliver possession of the flat by January 2013 with a grace period of 4 months, and also promised to pay Rs.5/- per sq.ft. per month in case of any delay in construction of the flat, but the opposite parties failed to complete the construction and also failed to pay the agreed delay compensation. The skeleton construction was left open to sun and rain, no progress in the construction though the complainant has paid a sum of Rs.17,07,016/- on various occasions, as per payment request letter of the opposite parties. The complainants borrowed amounts from private lenders and paid the same to the opposite parties and they are paying interest to private lenders. Subsequently, the delivery date was reworked to December 2014, but it was also not fulfilled. Inspite of the notice got issued by the complainants, the opposite parties failed to comply with the terms and conditions of the sale-cum-construction agreement. Thus there is gross deficiency in service on the part of the opposite parties, due which the complainants and their family members suffered lot of mental agony. Hence the complaint.    

3.  Opposite party No.1 filed written version and the same is adopted by opposite parties 2 to 4. In the written version, paragraphs 3 to 18 are the general denial of parawise allegations of the complaint. The opposite parties further contended that the work in Phase-II was started and is in progress day to day. That due to shortage of labour, sand and bricks, the project was not completed within the stipulated time.  Due to separation of Andhra Pradesh, for formation of Telangana State, Samaikyandhra Bandh, strikes by various parties, non- availability of raw material, delay in various approvals by the Government, and exorbitant increase in the cost of raw material etc. are the causes for delay in completion of the construction. The opposite parties admitted that the complainant purchased a flat at Rs.1759/- per sq.ft. Later the rates were gone up to Rs.3,200/- per sq.ft. That the Government issued G.O. not to lift the sand without prior permission. There is delay in progress of construction for the above reasons, which are beyond the control of the opposite parties. Therefore, the opposite parties are not liable to pay any amount to the complainants. The opposite parties further contended that unless the opposite parties receive the payment from other customers, there is no possibility for progress of work. The opposite parties are ready to handover the flat to the complainants and it is progressive work, and the complainants unnecessarily approached the Forum with an intention to harass the opposite parties. One C.Manohar, Civil Contractor has taken away the raw material. Recently, the followers of the complainants also took away the raw material and machinery. That 42 unsold flats were there and they are to be sold away. There is no deficiency in service on the part of the opposite parties. That the complainants have violated the terms and conditions of the sale-cum-construction agreement, by filing the complaint before this Forum instead of approaching the arbitrator at Chennai. This Forum has no jurisdiction to entertain the complaint and prays the Forum to dismiss the complaint with costs.  

4.  P.W.1 filed her chief affidavit and got marked Exs.A1 to A10. One T.Ram Mohan, authorized signatory of opposite parties filed evidence affidavit as R.W.1 and reported no documents on their behalf. Both the parties have filed their respective written arguments. Heard the counsel for both parties.  

            5.  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 as prayed for?                        

            (iii)  To what relief?

            6. Point No.(i):-  It is admitted fact that the complainants have purchased flat No.504 in F5 floor in Block-E (Block No.304) in Phase-II in Marg Vishwashakthi Venture launched by the opposite parties, by booking the said flat on 14.01.2011 under Ex.A1, for which the complainants have paid a sum of Rs.1,00,000/- as advance. The opposite parties have confirmed the booking by their letter dt:19.01.2011. The cost of the apartment is Rs.25,80,384/-, as was reflected in Ex.A1, which includes 3BHK flat, car parking No.5, along with other common amenities as stated above. The opposite parties have promised to deliver possession of the finished flat to the complainants by January 2013 with a grace period of 4 months, but failed to complete the construction and deliver possession within the stipulated time. Subsequently, the date of delivery was reworked to December 2014, but it was not fulfilled by the opposite parties as contended by the complainants. The opposite parties have admittedly received a sum of Rs.17,07,016/- from the complainants as per Ex.A4 payment request letter issued by the opposite parties. Even according to the written version of the opposite parties, they could not complete the construction of the flat due to state bifurcation issue, non-availability of sand, bricks, and non-availability of labour and also non-functioning of Sub Registrar Office at Tirupati, they could not execute registered sale deed in favour of the complainants. Apart from it, another ground for the delay was that there were bandhs, strikes and agitations and also abnormal increase of prices of raw material. The state bifurcation issue was already resolved in the parliament by June 2014 itself. Thereafter also the opposite parties failed to complete the construction and deliver possession of the flat to the complainants. The opposite parties also failed to pay compensation at Rs.5/- per sq.ft. per month as agreed in Ex.A3 sale-cum-construction agreement.

            7.  For the non-availability of labour, sand, cement and for the increase of prices of raw material like cement and sand, the complainants cannot be penalized. Once the opposite parties have agreed to complete the construction by January 2013 or by December 2014, they have to complete the construction within the stipulated time or within the reworked time, but in both the events, the opposite parties have failed to complete the construction, the opposite parties also failed to pay the compensation as agreed at Rs.5/- per sq.ft. per month. Simply they are taking advantage of every incident or event like rain for the non- progress in the construction work. The skeleton work was made so far and that was also exposed to sun and rain, consequently, it loses its strength. The opposite parties specifically mentioned in their written version that unless the complainants have paid the balance of sale consideration, it is not possible to progress in the work. Even though four (4) complete years have been elapsed after stipulated period, the opposite parties could not complete the construction of the flat. The complainants cannot be compelled to wait for an uncertain period till the opposite parties are able to complete the construction at their convenience. In this regard, we are relying on a decision reported in 11(2017) CPJ 508 (NC) Ranjeet Bhatia Vs. Super Tech Limited and Anr. The alleged bundhs and agitations cannot be sustained by the opposite parties as was held in 1(2017) CPJ 216 (NC) – Richa Aggarwal and Anr. Vs. Uni Tech – High Tech Developers Ltd. It itself shows the intention of the opposite parties to receive the entire sale consideration of the flat without showing any progress. Number of purchasers has approached this Forum on the same ground, they were 23 in number, as a batch matters. Though the complainants have purchased the flat by booking on 14.01.2011 and the same was confirmed on 19.01.2011 and both the parties have entered into sale-cum-construction agreement dt:28.10.2011 under Ex.A3, and though more than 5 years have been elapsed, no progress in the construction of the flat itself shows that opposite parties are in the habit of false promises, though collecting huge amounts from the purchasers, which was in crores altogether. Therefore, under the above circumstances, we of the opinion that there is gross negligence and deficiency in service on the part of the opposite parties. Accordingly, this point is answered.

            8. Point No.(ii):- in view of the discussion under point No.1, we are of the opinion that the complainants are entitled to the relief of completion of construction of the flat and also entitled for compensation at Rs.5/- per sq.ft. per month from 01.06.2013 till April 2017 i.e. 3 years 10 months, and also for compensation for deficiency in service on the part of the opposite parties and for causing mental agony to the complainants and their family members, but the complainants are not entitled for the amounts said to have been paid towards interest to the private borrowals, as this aspect was not established by the complainants. Ex.A3 sale-cum-construction agreement dt:28.10.2011 at Clause-3 it shows that the opposite parties have agreed to pay compensation at Rs.5/- per sq.ft. per month to the purchaser / complainant in case of any delay after the grace period, until deliver possession of the flat, which is the only and exclusive remedy against the developer / owner / opposite parties. Similarly,  Claause-13(1) shows that opposite parties have agreed that the possession of the residential apartment will be deliver by January 2013 with a grace period of 4 months. The opposite parties violated both the conditions. Apart from it, the opposite parties are contending that the complaint is filed to harass the opposite parties, that the complainants have violated the Arbitration Clause No.24 in Ex.A3 sale-cum-construction agreement. For this point, we have to say Section-13 of the C.P.Act clearly enables the complainant / consumer to approach the Consumer Forum or the Arbitrator at his choice, but it is not mandatory that the consumer should go to the arbitrator alone. So, in view of Section-13 of C.P.Act, the contention of the opposite parties with regard to Clause-24 of Ex.A3 was negatived. Therefore, in view of the above said admissions of the opposite parties under Ex.A3, the complainants are entitled for the compensation for causing delay in construction of the flat purchased by the complainants at Rs.5/- per sq.ft. So, the total extent of the flat is 1376 sq.ft as per booking form Ex.A1, the delay compensation is claimed from 01.06.2013 to April 2017 i.e. for 3 years 10 months, i.e. 1376 x 5 = 6880/- per month, if it is calculated for 46 months, it comes to Rs.3,16,480/-. Thus the complainants are entitled to a sum of Rs.3,16,480/- towards compensation for delay in completion of the construction work. This amount should be paid by the opposite parties within one month from the date of receipt of copy of this order. Similarly, the complainants also entitled to compensation for the deficiency in service on the part of the opposite parties and for mental agony caused to the complainants and their family members at 10% out of the amount paid i.e. Rs.1,70,701/-, the complainants also entitled for the costs of the complaint. Accordingly this point is answered.

            9.  Point No.(iii):-  in view of our discussion on points 1 and 2, we have to state that complainants have established that there is gross negligence and deficiency in service on the part of the opposite parties. That the complainants are entitled for  compensation at Rs.5/- per sq.ft. per month for the delay in construction and compensation for deficiency in service on the part of the opposite parties and accordingly this 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 complete the construction of  flat No.504 in F5 floor in Block-E 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 directed jointly and severally to pay a sum of Rs.3,16,480/- (Rupees three lakhs sixteen thousand and four hundred and eighty  only) towards compensation for the delay in completing the construction as agreed in Clause-3 of Ex.A3 dt:28.10.2011 @ 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.1,70,701/- (Rupees one lakh seventy thousand and seven hundred and one only) being 10% of the amount paid by the complainants out of 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.3,16,480/- 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 11^th day of May, 2017.

 

                        

       Sd/-                                                                                                                      Sd/-

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

 

Witnesses Examined on behalf of Complainant.

 

PW-1: Challa Udaya Niharika (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: 14.01.2011.
	Allotment Confirmation Letter issued by Opposite Parties (Notarized attested copy). Dt: 19.01.2011.
	Original Agreement of Sale, filed by complainants. Dt: 13.10.2011.
	Payment request letter of the opposite parties (Notarized attested copy).   Dt: 14.06.2013.
	Written authorization letter of the 1st Complainant (Notarized attested copy).  Dt: 16.01.2016.
	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: 22.11.2013.
	Letter of the opposite parties (Notarized attested copy).   Dt: 24.05.2014.
	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 complainants.

                        2.  The opposite parties.