Andhra Pradesh

Chittoor-II at triputi

CC/57/2016

Dr. M.S.Vasudeva Ranjith, S/o M.S.Soundara Rajan, rep. by his Special Power of Attorney holder M.S.Soundarajan, S/o Late M.D.Srinivasan - 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.57/2016

Between

Dr. M.S. Vasudeva Ranjith, S/o. M.S,Soundara Rajan,

Hindu, aged 46 years,

Resident of 14823, Los Lunas Road, Helotes, SanAntonia,

Texas – 78023, USA.

 

Rep. by her Special Power of Attorney Holder,

M.S. Soundarajan S/o. Late M.D. Srinivasan,

Hindu, aged 76 years, residing 6-283,

Opp. to APAU Quarters,

Tirupati.                                                                                     … 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 M.S.Soundarajan, S/o. Late M.D.Srinivasan, 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  of the flat and deliver the  possession to him with all amenities agreed upon by duly executing registered conveyance deed in favour of the complainant, and further directing the opposite parties  to pay an amount of Rs.1,66,635/- towards delay compensation from 01.05.2014 to 31.03.2016 at Rs.5/- per sq.ft., per month and 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 further directed the opposite parties to pay a sum of Rs.8,50,000/- towards interest paid to private borrowals and also for mental agony suffered by the complainant towards deficiency in service with further interest @ 24% p.a. from the date of the complaint till the delivery of the possession of the flat and to pay Rs.10,000/- costs of the petition.

         2.The brief facts of the case are:  The complainants booked a flat bearing No.803 in F8 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 3BHK flat with an extent of 1449sq.ft., with G-Stilt car parking of opposite parties on 24.07.2012 by paying an advance of Rs.1,00,000/- and same was confirmed by the opposite parties by the letter dt:31.07.2012, the cost of the flat at the time of booking is Rs.35,82,700/- 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: 24.08.2012. Accordingly the complainant has paid Rs.7,50,000/- towards the cost of the flat by the date of the complaint and the opposite parties issued receipts for all the payments. The complainant further stated that at the time of the agreement the opposite parties have promised to hand over the finished apartment by December, 2013 with a grace period of four months failing which, they will pay compensation of Rs.5/- per sq.ft., per month. Even after receipt of Rs.7,50,000/- the opposite parties failed to deliver the possession to the complainant and also the complainant further stated that after four years of booking the complainant has not finished the construction work and also they have not even done the plastering of the walls, pillars, beams and slab portion, rods or in a stage of corrosion and lost its strength. Hence the opposite parties have not completed the work as per the schedule and also they have pressurized the complainant to make payment without doing the construction work. Hence the complainant has to refuse to pay the excess payment as there was no progress in the construction work and also the opposite parties pressurized the complainant for register the sale deed.  

         But the complainant refused to register the sale deed as there is no progress in the construction work, the opposite party stopped the construction work in the entire site from June, 2013. As per repeated requests made by the complainant they have sent the mail that they re-worked and handed over the possession by December, 2014 but,  they have postponing the date and failed to deliver the possession. Hence finally the complainant got issued registered legal notice on 25.01.2016 to the opposite parties but without complying the same the opposite parties issued reply notice dt: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.2300/- per Sq.ft but, unfortunately due to increase in the price of raw materials and labour charges the cost of the construction was also increased 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 almost 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 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 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 co-operate 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 heed 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 his Special Power of Attorney Holder M.S.Soundarajan, S/o. Late M.D.Srinivasan on behalf of the complainant. Hence 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 the 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 in the opposite party’s venture same was admitted by the opposite parties. The complainant further stated that they booked a flat on 24.07.2012 i.e.flat No.803 which consists of 1449sq.ft., and the total cost of the flat is Rs.35,82,700/- as per Ex:A1 and same was confirmed by the opposite parties by the letter i.e. Ex:A2 dt:31.07.2012. The complainant further stated that by the date of the complaint he has paid Rs.7,50,000/- under Ex:A4 dt:01.02.2013 towards cost of the flat, and the opposite parties executed sale-cum-construction agreement on 24.08.2012 and also the complainant stated that in Para 13 clause (1) of the sale-cum-construction agreement that the opposite parties clearly mentioned that they will deliver the possession of the flat by December, 2013 with a grace period of four months and stated that if they fail to deliver the same with a grace period of four months they will pay Rs.5/- per sq.ft., per month as delay compensation to the complainant. And also the complainant stated that even after several letters made by him the opposite parties failed to deliver the same and hence finally he got issued legal notice on 25.01.2016 under Ex:A5 calling upon the opposite parties to deliver the flat to the complainant. But, after receipt of the said notice the opposite parties gave reply notice under Ex:A6 dt: 17.02.2016 with all false and frivoulous allegations. Hence after several reminders issued by the complainant under Ex:A8 and A9 the opposite parties failed to deliver the same hence without no option he filed the present complaint before this Forum.

        8. The opposite parties came in to appearance and filed the written version by denying the allegations made in the complaint except the sale of the flat to the complainant and also stated that due to lack of manpower and also due to Samikyandhra agitations they have not completed the construction within the stipulated time as mentioned in the agreement. The opposite parties counsel vehemently argued that their project is a heavy project hence the progress of work was going on day by day. But due to unforeseen circumstances like heavy rain and rain and shortage of labour the progress of work will slowdown and hence there are no latches on their part and the complainants is for the compensation as prayed for and they have stated 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 under 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 same was  mentioned in Para 13 clause (1) of the said agreement, and also they have mentioned that   if they failed to deliver the possession they will pay Rs.5/- per sq.ft., as compensation to the complainant. Once they have agreed the conditions which were 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 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 their 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 complainant.

                    10.Point(ii):-  As already the point no.1 is discussed above in favour of the complainant and as per Ex:A4 clearly reveals that the complainant has paid Rs.7,50,000/- towards the sale consideration of the flat and also in Ex:A3 in Para 13 clause(1) it’s clearly mentioned as 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 Rs.5/- per sq.ft., as compensation per month. Hence the grace period of four months from December 2013, is already completed by April, 2014. Hence the complainant is entitled from 01.05.2014 to 30.04.2017=35months. As the complainant purchased the apartment which consists of 1449sq.ft. hence 1449X5=Rs.7245/- per month, Rs.7245X35months=2,53,575/-. Hence the complainant is entitled for Rs.2,53,575/- towards delay compensation and also as per Ex:A4 clearly shows that the complainant has paid Rs.7,50,000/- towards the cost of the flat. Hence he is entitled 10% of the said amount i.e. RS.75,000/- towards compensation for mental agony and deficiency in service and also the complainant is entitled 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.2,53,575/-(Rupees two lakhs fifty three thousand five hundred and seventy five 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 01.05.2014 to April, 2017, b) the opposite parties are further directed to pay a sum of Rs.75,000/- (Rupees seventy five thousand only) towards compensation for mental agony and deficiency in service on part of the opposite parties which is 10% of the amount of Rs.7,50,000/- 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/- 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.2,53,575/- (Rupees two lakhs fifty three thousand five hundred and seventy five 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: M.S. Soundarajan     (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: 24.07.2012.
	Allotment Confirmation letter issued by opposite parties (Notarized attested copy) Dt: 31.07.2012.
	Sale-cum-construction agreement in favour of complainant (Notarized Copy). Dt: 24.08.2012.
	Payment request letter issued by the opposite parties (Notarized Copy).     Dt: 01.02.2013.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 25.01.2016.
	Reply Notice. Dt: 17.02.2016.
	Special power attorney of the complainant. Dt: 29.02.2016.
	Email given by the opposite parties (Notarized Copy) Dt: 22.11.2013.
	Email given by the opposite parties (Notarized 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 Complainant.

                  2) The Opposite parties.