Andhra Pradesh

Chittoor-II at triputi

CC/20/2016

J.Vishnu Kumar, S/o J.Jagannathan, aged 58 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: 24.03.2016

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.20/2016

 

 

Between

 

 

J.Vishnu Kumar,

S/o. J.Jagannathan,

Hindu, aged 58 years,

D.No.180, 12^th Cross Street, Senthil Nagar,

Kalathur,

Chennai                                                                                             … Complainant.

 

 

 

 

 

And

 

 

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

            Rep. by its Managing Director,

            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,

            Represented 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 Mandalam,

            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 complainant against the opposite parties for the following reliefs 1) to direct the opposite parties to complete the construction work of flat No.102 in F1 floor in Block-F in Phase-II, in Marg Vishwashakthi Venture, Kotramangalam village accounts, Renigunta Mandal and deliver possession of the same with all amenities agreed upon to the complainant, 2) to direct the opposite parties to pay Rs.1,28,150/- towards compensation for the delay in completion of work and deliver possession @ Rs.5/- per sq.ft from 01.05.2014 to 28.02.2016 and also for further period from the date of complaint with interest at 24% p.a., till handing over of finished apartment, 3) to direct the opposite parties to pay a sum of Rs.13,00,000/- towards the interest paid on private borrowals and for physical and mental strain caused to the complainant and his family members and for the 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 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 complainant booked flat No.102 in F1 floor in Block-F (Block No.202) in Phase-II in Marg Vishwashakthi Venture, launched by the opposite parties in Kotramangalam village, Renigunta Mandal, Tirupati, on 20.04.2012 by paying Rs.1,00,000/- as advance. The opposite parties confirmed the booking of the flat by its letter dt:04.05.2012. The cost of the flat at the time of the booking was Rs.28,52,610/-, which includes 2BHK flat, F-Stilt car parking bearing No.30 along with common amenities. The same was also mentioned in booking form. The payment for the flat is to be made stage wise construction as per Annexures - A1 and A2 attached to the sale-cum-construction agreement dt:30.06.2012. At the time of booking, the opposite parties promised to provide the following 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 Play Area, Gym and various other usual amenities. At the time of agreement, opposite parties also promised to deliver possession of the finished apartment to the complainant by December 2013 with a grace period of 4 months, but the construction came to standstill position. The complainant has paid 70% of the cost i.e. Rs.20,10,410/-, for which the opposite parties have issued receipts. The account statement issued by the opposite parties is filed herewith. Though 4 years after agreement is over, the construction is not yet completed. The construction is exposed to sun and rain, structural soundness of the apartment complex is very much affected due to non-plastering of bricks, pillars, beams and slab portion and the rods are in the stage of corrosion and lost its strength. The opposite parties have not completed the construction as per sale-cum-construction agreement dt:30.06.2012.

            3.  The opposite parties also promised to pay Rs.5/- per sq.ft. per month for the delayed period after the grace period is over in case of any delay in delivery of possession of the flat, but the opposite parties avoiding to make payment for the delay in construction as agreed stating that it will be paid at the time of handing-over the finished apartment. That the opposite parties have pressurized the complainant to make payment more than the actual payment schedule agreed upon to speed-up the construction. Believing the words of the opposite parties complainant made excess payment. The opposite parties exerted pressure to get the sale deed registered even without completing roof of the flat, for which complainant refused, as skeleton work also not completed. The opposite parties have stopped the work in the entire site from June 2013, stating that they have reworked the handing-over possession by December 2014 and postponing the work on some pretext or the other, but so far no progress in the work. The opposite parties have agreed to execute registered sale deed after receiving 50% of the sale consideration, but failed to do so. Inspite of the payments made by the complainant, the opposite parties failed either to complete the construction and to deliver possession of the flat or to pay the delayed compensation as agreed in Ex.A3 sale-cum-construction agreement. Thus the opposite parties have committed deficiency in service. Hence the complaint.

            4.  Opposite party No.1 filed the written version and the same is adopted by opposite parties 2 to 4. In the written version opposite parties admitted that the complainant booked flat No.102 in 1^st floor in block-B (Block No.202) in Phase-II of Marg Vishwashakthi Venture of opposite parties on 20.04.2012 by paying advance amount of Rs.1,00,000/-. That the opposite parties also confirmed the booking by its letter dt:04.05.2012. The cost of the flat is Rs.28,52,610/- including 2BHK flat, G-Stilt car parking bearing No.30, but further contended that the complainant has violated the terms of the agreement and filed the complaint instead of referring the matter to arbitrator. The opposite parties contending that complainant purchased the flat at Rs.2234/- per sq.ft in Marg Vishwashakthi venture, subsequently the cost of the construction was grown up to Rs.3200/- per sq.ft. The same is being invested by opposite parties without demanding the balance amount from the complainant. The opposite parties contended that the cost of the raw-material, sand, bricks were also increased, and the cost of the cement was also abnormally increased. The construction is delayed due to state bifurcation issue, agitations, strikes and bandhs by various parties in the state. Due to non-sanction of approvals by the Government, non-availability of sand, bricks, cement and labour, and heavy rainfall in Tirupati, the opposite parties could not complete the construction of the apartment. There is no deficiency in service on the part of the opposite parties. They are ready to handover the possession of the flat, but the complainant refused to take possession of the flat. That the opposite parties are proceeding with day to day work in the venture. They further alleged that some of the raw material, which was stored at the venture, was stolen by some unknown persons. In this regard, a complaint was also lodged and a case was registered. That the complainant has violated the terms and conditions of the agreement by filing complaint before this Forum instead of referring the matter to arbitrator. This Forum has no jurisdiction to entertain the complaint. Some more flats are to be sold and the complainant and other customers have to pay the remaining balance. Unless the said amounts are paid, it is difficult to complete the construction and prays the Forum to dismiss the complaint with costs.    

            5.  The complainant has filed evidence affidavit as P.W.1 and got marked Exs.A1 to A10. One T.Ram Mohan filed evidence affidavit as R.W.1 and reported no documents on their behalf. Both parties have filed their respective written arguments. Heard the counsel for both parties.               

            6.  Now the points for consideration are:-

            (i).  Whether there is deficiency in service on the part of the opposite parties?

            (ii).  Whether the complainant is entitled for the reliefs as prayed for?                        

            (iii)  To what relief?

            7. Point No.(i):-  to answer this point, burden lies on the complainant. The complaint averments as well as the averments of the written version filed by the opposite parties, safely established that the complainant has purchased flat No.102 in F1 floor in block-F (Block No.202) in Phase-II of Marg Vishwashakthi Venture launched by the opposite parties in Kotramangalam village, Renigunta Mandal, Tirupati on 20.04.2012. He also paid a sum of Rs.1,00,000/- as advance as per Ex.A1. That the opposite parties have agreed to deliver the finished flat to complainant by December 2013 with a grace period of 4 months on or before April 2014, but the construction was not completed admittedly. The complainant has paid a sum of Rs.20,10,410/- out of the total cost of Rs.28,52,610/-, i.e.70% of the payment was made by the complainant so far. Though the opposite parties having received 70% of the total cost of the apartment, they have not completed the construction till date i.e. even after completion of 3 years. It also appears that the skeleton constructions were raised and they were left to their fate exposing to sun and light, consequently, the skeleton structures lost its strength, and the rods are in the position of corrosion. These aspects were not denied by the opposite parties.

            8.  It is further found in the sale-cum-construction agreement dt:30.06.2012, that the opposite parties promised to pay Rs.5/- per sq.ft. per month for the delayed period after the grace period is over in case any delay is there. But the opposite parties failed to comply with the said condition also. Having attracted the public by making vide publicity and showing beautiful construction of the apartments in the brochure, but after receiving huge amounts from the complainant and other customers, the opposite parties completed the skeleton structures of the apartment and stopped the construction from December 2013 itself. As alleged by the complainant even now the opposite parties are stating that some of the customers have to pay the balance amount, unless those amounts were received by opposite parties, it is difficult to complete the construction as per Annexure-A1 appended to Ex.A3. The schedule payments were specifically disclosing that the payments should be made on stage wise completion of construction, but without completing any stage, the opposite parties have collected so far huge amounts from the complainant and other customers. Though the opposite parties have collected 70% amount, none of the floors were completed, but still the opposite parties are demanding to pay balance amount, which is totally unfair on their part.

            9.  Non-availability of labour, non-sanctioning of permissions and other approvals by the Government, non-availability of sand, bricks and cement etc. as well as raw-material are the look-out of the opposite parties. The opposite parties have to obtain prior permissions and sanctions and then launch the project, but without doing so, they have released the brochures under Ex.A7, attracted the public and collected huge amounts in crores altogether, and the construction was left to its fate, and the customers of the opposite parties were thrown to streets making them to approach the Forum for redressal. The state bifurcation issue was already over by June 2014 itself, still the opposite parties appears to have taking advantage of every incident like rainfall, sand, bricks, agitations, strikes and bandhs etc., which were not in existence for the last more than 2 years. The alleged bundhs, strikes and non-availability of labour etc. could not be sustained by the opposite parties and they failed to discharge their contractual obligation. In this regard we are relying on a decision of the Hon’ble National Commission reported in 1(2017) CPJ 216 (NC) – Richa Aggarwal and Anr. Vs. Uni Tech – High Tech Developers Ltd. If the opposite parties are very much interested to complete the construction and handover the flats to its customers, they could have completed the construction ever after resolving the state bifurcation issue by the Central Government, as the opposite parties have 2 years in their hands for completing the construction, but it appears prima facie that they are availing every opportunity and postponing the constructions on some pretext or the other. Complainants cannot be compelled to wait for an uncertain period. Under the above circumstances, we are of the opinion that the complainant has established the deficiency in service on the part of the opposite parties. Accordingly, this point is answered.

            10. Point No.(ii):- before answering this point, it is pertinent to mention that the total cost of the apartment as per Ex.A1 booking form is Rs.28,52,610/- which includes 2BHK flat, F-stilt car parking No.30. It is admitted fact that the opposite parties have promised to complete the construction and deliver possession of the flat by December 2013 with grace period of 4 months. That the opposite parties also entered into sale-cum-construction agreement dt:30.06.2012. So far the sale deed is also not executed admittedly. The complainant had paid Rs.20,10,410/- i.e. 70% of the total cost of the flat as per Ex.A4 statement of account issued by the opposite parties, but so far the construction is not completed and it is in standstill position. Though the skeleton construction was made, it was exposed to sun and rain, consequently, construction lost its strength, and the rods which were exposed to sun and rain were in the stage of corrosion. That apart the opposite parties also agreed to pay compensation in case of delay in completion of the work at Rs.5/- per sq.ft per month, but the opposite parties admittedly have failed to either complete the construction as per Ex.A3 or paid the compensation for the delay in construction as mentioned in Ex.A3. Therefore, the opposite parties are liable to pay compensation for the deficiency in service and for mental agony suffered by the complainant. In our view 10% of the cost paid is awarded towards compensation for the deficiency in service and mental agony, it will meet the ends of justice. The total amount paid so far is Rs.20,10,410/- out of the total sale consideration of Rs.28,52,610/-. If 10% is calculated on the amount paid, it comes to Rs.2,01,041/- to be awarded as compensation for the deficiency in service on the part of the opposite parties, as they failed to comply with the terms and conditions of the sale-cum-construction agreement Ex.A3 in handing-over the possession.

            11.  Similarly, the opposite parties as agreed in Ex.A3, they have to pay compensation at Rs.5/- per sq.ft. per month. The total extent is 1165 sq.ft., i.e. 1165x5 = 5825 per month, per annum it comes to Rs.69,900/-, for 3 years it comes to Rs.2,09,700/-. The opposite parties are liable to pay this agreed amount to the complainant, and the opposite parties also liable to pay costs of the litigation. Thus the complainant is entitled to both compensation for deficiency in service and compensation for delay in completion of the construction within the stipulated period as agreed by the opposite parties, and for costs of the complaint. Accordingly this point is answered.

            12. Point No.(iii):-  in view of our discussion on points 1 and 2, we are of the opinion that the complainant has established the deficiency in service on the part of the opposite parties, and also established that the opposite parties have caused mental agony to the complainant by not completing the construction and not handing over the possession even after  4 years have completed from the date of sale-cum-construction agreement Ex.A3. Similarly, the complainant is also entitled to the compensation for the delay in construction at Rs.5/- per sq.ft. per month as agreed by the opposite parties in Ex.A3, and the complainant also entitled to the costs of the litigation. Accordingly the 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.102 in F1 floor in Block-F (Block No.202) 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 complainant 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 complainant in the Forum. (b)  that the opposite parties 1 to 4 are directed jointly and severally to pay a sum of Rs.2,09,700/- (Rupees two lakhs nine thousand and seven hundred only) towards compensation for the delay in completing the construction as agreed in clause-3 of Ex.A3 dt:30.06.2012 @ Rs.5/- per sq.ft per month from 01.05.2014 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.2,01,041/- (Rupees two lakhs one thousand and forty one only) being 10% of the amount paid by the complainant out of the sale consideration towards deficiency in service and for mental agony caused to the complainant 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.2,09,700/- 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: J. Vishnu Kumar (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: 20.04.2012.
	Allotment Confirmation Letter issued by Opposite Parties (Notarized attested copy). Dt: 04.05.2012.
	Original Agreement of Sale, filed by complainants. Dt: 30.06.2012.
	Account Statement showing payments made by Complainant (Notarized attested copy).
	Office copy of Regd. Legal Notice. Dt: 25.01.2016.
	Reply Notice (Notarized attested copy). Dt:17.02.2016
	Multi colored Brochure of the opposite parties.
	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.

 

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.