Andhra Pradesh

Chittoor-II at triputi

CC/54/2016

Gurpreet kaur Dhilon, W/o Bharat Dhillon, rep. by her Special Power of Attorney holder K.Jagannadhan, S/o late K.Raja Srinivasan aged 68 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:-29-03-2016                                                                                                               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.54/2016

Between

Gurpreet kaur Dhillon, W/o. Bharat Dhillon,

Hindu, aged about 37 years,

Resident of 1313, Phesant Hollow Drive,

Plainsboro, New Jersey 08536

 

Rep by her Special Power of Attorney Holder,

K. Jagannadhan, S/o. Late K. Raja Srinivasan,

Hindu, aged 68 years, residing at 18-1-48,

Flat No.408, Brindavan Apartments,

KT Road, 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 her Special Power of Attorney Holder K. Jagannadhan, S/o. Late K. Raja Srivivasan 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 bearing No. 508 in F5 floor in Block’G’ in Phase-II and deliver the same to the complainant with all amenities agreed upon and directing the opposite parties to pay a sum of Rs.1,51,690/- towards delay compensation from 01.05.2014 to 28.02.2016 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 the handing over the possession and to pay Rs.13,00,000/- towards interest paid on private borrowals and for deficiency of service with further interest @ 24% p.a. from the date of the complaint till the date of handing over the possession of the apartment and direct the opposite parties to return the original sale deed of the complainant  and to pay Rs. 10,000/- towards costs of the litigation.  .

        2.The brief facts of the case are:  The complainants booked a flat bearing No.508  in F5 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 opposite parties on 30.11.2012 by paying an advance of Rs.1,00,000/- and same was confirmed by the opposite parties. The cost of the flat at the time of booking was Rs.34,75,481/- of 3BHK flat with an extent of 1379sq.ft., and the payments of the flat is to be released stage wise construction as per       Annexures-A1 & A2 of the Sale-cum-construction Agreement dt: 01.12.2012.The complainants further submits that till the date of the filing of the complaint  the complainant has paid Rs.24,76,502/- on various occasions to the opposite parties and the opposite parties issued receipts for all the payments. The complainants submits that at the time of agreement dt: 01.12.2012 it was clearly mentioned that they will hand over the possession of the flat to the complainant by December, 2013 with a grace period of 4 months if they failed to deliver the possession by the grace period they promised to pay Rs.5/- per sq.ft., per month towards delay compensation to the complainant and the complainant further stated that till the date of the complaint she already paid 71% of the cost the flat to the opposite parties but even after receipt of the 70% of sale consideration the opposite parties failed to deliver the possession to the complainant and also they have pressurized her to make payment in excess and forced her to get register the sale deed accordingly the sale deed was registered on 13.03.2013 of semi finished flat after registering the sale deed the opposite parties literally slowed down the construction of the project and stopped the entire construction work by June, 2013. When they have questioned several times about the delay in completing the construction work by different expenses finally they promised to hand over the possession by December, 2014. But they failed to do their part and deliver the possession of the flat to the complainant which is nothing but deficiency in service on part of them. The complainant further stated that she has borrowed an amount of 20,00,000/- from the private borrowings and she is paying interest with high rate to the above said amount and hence finally she got issued legal notice on 23.01.2016 calling upon the opposite parties to hand over the flat to her but, the opposite parties failed to comply the same and issued reply notice on 17.02.2016  with all false and frivolous allegations. Hence she 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.2339/- 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 amounts 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 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 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 her Special Power of Attorney Holder                          K. Jagannadham, S/o. Late K. Raja Srinivasan 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 them. 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 in the opposite party’s venture because same was admitted by the opposite parties. As per the contention of the complainant that she booked a flat on 30.11.2012 by paying an advance of Rs.1,00,000/- to the opposite parties and same was confirmed by  by the opposite parties i.e. Ex:A1 and also in Ex:A1 clearly shows that the complainant purchased the flat consist of 1379sq.ft., and the total cost of the flat is mentioned Rs.34,75,481/-  and accordingly the opposite parties executed the construction agreement dt:01.12.2012 and the complainant stated that by the  date of the complaint she has paid Rs.24,76,502/- towards sale consideration of the opposite parties. But even after receipt of 71% of the total sale consideration the opposite parties failed to deliver the flat to the complainant. The complainant further submits that as per Sale-cum-construction agreement dt: 01.12.2012 i.e. Ex:A2 it was clearly mentioned that 13 clause(1) that they will deliver the flat by December, 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 towards delay compensation in delivery of the possession to the complainant. The complainant further stated that the opposite parties even after receipt of 71% of the sale consideration they have not finished the construction of the flat and also they exerted pressure to the complainant to register the sale deed. Accordingly they have register the sale deed of semi finished flat on 13.03.2013 under Ex:A4. Even after registering the same they have not progress the work and stopped the construction work in the entire site from June, 2013. When she questioned the opposite parties several times they have sent mail that they will hand over the possession by December, 2014 but, till today they have postponing the same and requested the complainant to pay balance of the sale consideration without completing the construction work. Hence as she borrowed amount of Rs.20,00,000/- from the private borrowings and she paid interest with higher rate to own the flat but which is of no use. Hence she incurred huge financial loss because of the negligence on part of the opposite parties in completing the construction and delivers the flat to her 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 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 they were not able to registers the documents in favour of the complainants because of 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.The opposite parties further stated that the complainants purchased the flat for Rs.2339/- 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., as compensation for delay in delivery of the possession. 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 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 her. Hence on those circumstances we are of the opinion that there is deficiency of service on part of the opposite parties towards the complainants.

        10. Point(ii):- As already point no.1 is discussed above in favour of the complainant that there is deficiency in service on part of the opposite parties towards the complainant. As per the contention of the complainant that the opposite parties promised to hand over the possession by December, 2013 with a grace period of four months under Ex:A2. But even after receipt of Rs.24,76,502/- towards sale consideration under Ex:A3 they failed to deliver the possession and hence the complainant is entitled of Rs.5X1379=6895 per month from May 2013 to April, 2017 = 36 monthsX6895=2,48,220/- towards delay compensation and also as per Ex:A3 payment request letter dt:19.10.2015 issued by opposite parties clearly shows that the complainant paid Rs.24,76,502/- towards the cost of the flat. Hence as the complainant borrowed the amount from the private borrowals and paying the interest with higher rate. Hence it is reasonable to grant 10% interest of the above said amount paid by the complainant i.e.2,47,650/- towards compensation for mental agony and deficiency in service on part of the opposite parties and also 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. And also the complainant is entitled for a sum of Rs.2,000/- towards costs of the litigation and also the complainant is entitled for the registered sale deed dt:13.03.2013 which is in the custody of the opposite parties.  

        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.2,48,220/- (Rupees two lakhs forty eight thousand two hundred and twenty only) within one month from the date 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.2,47,650/- (Rupees two lakhs forty seven thousand six hundred and fifty only) towards compensation for mental agony and deficiency in service on part of the opposite parties which is 10% of the amount of Rs.24,76,502/- 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 and handed over the registered sale deed dt:13.03.2013 to the complainant which is in the custody of them and to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint, 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.2,48,220/- (Rupees two lakhs forty eight thousand two hundred and twenty 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:  K. Jagannadhan  (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: 30.11.2012.
	Original Agreement of Sale, filed by complainants. Dt: 02.11.2012.
	Payment request letter of the opposite parties(Notarized attested copy).     Dt: 19.10.2015.
	Registered sale deed to the complainants (Mee seva copy) Dt: 13.03.2013.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgments. Dt: 23.01.2016.
	Reply Notice . Dt:17.02.2016
	Email given by the opposite parties (Notarized attested copy).                         Dt: 22.11.2013.
	Email given by the opposite parties (Notarized attested copy).                         Dt: 24. 05.2014.
	Calculation Sheet.
	Special power of Attorney (Notarized attested copy) Dt: 15.03.2016.

 

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.