Andhra Pradesh

Chittoor-II at triputi

CC/56/2016

K.Indira, D/o Late K.Raja Srinivasan, aged 69 years, rep. by her 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.56/2016

Between

K.Indira, D/o. Late K. Raja Srinivasan,

Hindu, aged 69 years,

Temporary Resident of 14823, Los Lunas Road,

Helotes, San Antonia,

Texas – 78023, USA

 

Rep. by her Special Power of Attorney Holder,

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

Hindu , 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 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 and deliver the possession by executing registered sale deed in favour of the complainant, to pay compensation as the opposite parties has not completed the construction and handed over the flat as mentioned in the sale agreement, to pay a sum of Rs.10,00,000/- towards interest paid to private borrowers and for mental agony suffered by the complainant with interest 24% p.a. from the date of the complaint till the date of handing over the finished apartment to the complainant and to pay costs of Rs.10,000/- towards  the litigation.

         2.The brief facts of the case are:  The complainant submits that, the opposite parties floated a project for the development of integrated township inclusive of residential complex comprising eight Blocks under the name and style of “Vishwashakthi” consisting of apartments, school service apartments, convention centre, commercial complex, Bank ATM, Club house, Jogging Track, Snooker, Grocery, Senior Citizens Park, Children’s play area, Gym and various other usual amenities etc.

         The complainant got attracted with the vide publicity given by the opposite parties and intended to purchase a flat bearing No.703 in the F7 Floor in Block ‘C’ (Block No.305) in phase-II in Marg Vishwashakthi Venture of opposite parties in the year 2012. Hence she booked a flat on 23.07.2012 by paying an advance of Rs.1,00,000/- and same was confirmed by the opposite parties by confirmation letter.  The cost of the flat is Rs.38,00,050/- which includes area of 1449 sq.ft 3BHK flat, C-Stilt car parking No.11, along with common amenities. The payments for the flat is to be released as per         Annexures-A1 & A2 stage wise construction of Sale-cum-Construction Agreement,      dt: 07.04.2014. The complainant further submits that till the date of filing of the complaint, she has paid Rs.7,72,344/- towards the cost of the flat on various occasions to the opposite parties and receipts were issued by the opposite parties.

         3. The complainant further submits that the opposite parties promised to hand over the flat by December 2016 with a grace period 4 months. If they failed to hand over the flat within stipulated period, they agreed to pay compensation of Rs.5/- per Sq.ft  per month until the date of delivery of possession.

            The complainant further submits that even after three years of booking of the flat, the opposite parties not even completed the skeleton work and failed to complete the construction work as per schedule, mentioned in the sale-cum-construction agreement. The complainant further submits that the opposite parties have pressurized her to pay the excess amount to the actual payment schedule agreed upon earlier, to speed up the construction. But she refused to make excess further payment as there is no progress in the construction work, moreover the opposite parties have exerted pressure to register the sale deed. But she refused to get the sale deed register as the skeleton work of the building was not even completed and she is willing to pay the balance of sale consideration subject to completion of the apartment.

        The complainant further submits that she incurred financial loss in paying interest as she borrowed money from the private borrowings and also she has suffered both financially and mentally because of the negligence of the opposite parties in completion of the project, thus there is a gross deficiency in service and unfair trade practice on part of the opposite parties. Therefore she got  issued registered legal notice on 25.01.2016 to the opposite parties.  The opposite parties did not comply with the request of the complainant even after receipt of the legal notice. But on the other hand, the opposite parties issued reply notice  dt: 17.02.2016 with all false and frivolous allegations. Hence she filed the present complaint.

         4. 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 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. The opposite parties further stated that the complainant booked the flat for Rs.2450/- 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 almost three times higher than the rate of the opposite parties. Hence the complainant investments in their project definitely fetched better appreciation.

        5. The opposite parties further submitted that as per the Government policy with regard to sand issued in 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 heavy rain fall the fluctuations was happened in the real estate market which resulting the project was delayed due to unavoidable circumstances and same was mentioned in the sale-cum-construction agreement that, if any delay is caused which is not beyond the control of the 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 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 payments 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 by the complainant followers without permission of the opposite party and create nuisance in the work place. Hence on the above circumstances prayed this Forum to dismiss the complaint. The opposite parties further requests 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 co-operate for the progress in the work peacefully. Hence they have stated that there are no latches on their part, hence the complaint is liable to be dismissed.    

         6. The Special Power of Attorney Holder of the complainant M.S.Soundarajan, S/o. Late M.D.Srinivasan filed his evidence on affidavit on behalf of the complainant and got marked Ex:A1 to A6. On behalf of the 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 complainant and opposite parties filed their written arguments and oral arguments were heard.

        7.  Now the points for consideration are:             

             (i) Whether there is any delay is caused by the opposite parties 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?

 

         8. Point No:-(i).  The main contention of the complainant is, she booked a flat in opposite party’s project Viswasakthi in Block-C flat bearing No.703 in F7 Floor in Phase-II during the year 2012 and she booked the said flat on 23.07.2012 by paying advance of Rs.1,00,000/- to the opposite party and same was confirmed by the opposite parties and executed the Sale-Cum-Construction agreement on 07.04.2014 in favour of the complainant by the opposite parties and the total cost of the flat was mentioned in the agreement was Rs.38,00,050/-. This cost includes the extent of 1449sq.ft., of  3 Bed Room flat C-STILT car parking No.11 along with above common amenities. The payment of the  flat is to be released stage Wise construction as per annexure A1 and A2 of the Sale-Cum-Construction agreement dt: 07.04.2014.

         The complainant further submits that till the date of filing of the compliant she has paid Rs.7,72,344/- to the opposite parties towards the cost of the flat and  Ex:A4 the payment request letter dt: 10.04.2014 issued by the opposite parties were clearly shows that she has paid Rs.7,72,344/- and also the complainant further submits that the opposite parties promised to  hand over the finished apartment to the complainant by December, 2016 with a grace period of four months. If they failed to deliver the possession to the complainant after four months grace period, they will pay compensation of Rs.5/- per Sq.ft per month, and same was mentioned in Ex:A3 in the Sale-Cum-Construction agreement in Clause No.13 point (1). But the opposite parties has not completed the construction work even after 3 years of booking and also they are not even started the construction work as per the schedule mentioned in the Sale-Cum-Construction agreement. Hence the complainant stated that she borrowed Rs.7,50,000/- from the private borrowings on higher rate of interest for paying amount to the opposite parties for their apartment. Hence she has suffered huge financial loss in paying interest to the private borrowings. Hence the complainant even after repeated requests made by her to the opposite parties for the delivery of the flat, but they failed to deliver the same. At last, the complainant got issued registered legal notice dt:25.01.2016 i.e. Ex:A5 calling upon the opposite parties to receive the remaining balance amount towards the sale consideration subject to the completion of the construction of the apartment. But after receipt of the said notice the opposite parties issued reply notice on 07.02.2016 with all false allegations but they failed to deliver the possession as agreed in the agreement which is nothing but deficiency in service on part of them. Hence he filed the present complaint.

         9. The opposite parties came in to appearance and filed their written version by admitting the Sale-Cum-Construction agreement but due to escalation of the prices of the material they are unable to complete the construction work and also in the written version they have stated that due to Samikyandhra agitations because of the hartals and bundh the register office remained closed. Hence they unable to register the sale deed and also stated that because of the lack of sand and also due to shortage of the labour they have not completed the construction work and also same was communicated to the complainant and also stated that the close associate of the complainant one C. Manohar high handedly took away the material which was laid in the construction site that is also one of the reason for non functioning of the construction work and the complainant with a malafide  intention throwing blame on them as the construction was in progress and they will deliver the possession to the complainant and also stated that the complainant paid Rs.2,450/- per Sq.ft. But unfortunately the cost of the construction was increased up to 3200/- per sq.ft but the said difference amount also not demanding the complainant. As on today, in the market the other promoters launched the projects with three times higher than the price of this project which was offered by the opposite parties. Hence the complainant definitely provides better appreciation because of the purchase of the said apartment. Hence there are no latches in their part, because of the above stated reasons the progress of the work was slow down. Hence the contentions mentioned by the complainant are baseless and the complaint is liable to be dismissed.

          But by perusing the record placed by  both the parties there is no dispute regarding the purchase of the flat by the complainant from the opposite parties, and same was admitted by the opposite parties and also Ex:A3 construction agreement itself clearly shows that the opposite parties promised that they will deliver the possession to the complainant by December, 2016 with grace period of four months and also they have mentioned in  clause 13 (i) of in the said agreement, if they failed to deliver the possession they will pay Rs.5/- per sq.ft., as delay compensation. Once they have agreed the conditions which were incorporated in their Sale-Cum-Construction agreement they cannot go back. Hence in this particular case the opposite parties mentioned several reasons for the delay in the construction work,  but in order to prove those reasons they have not filed any single scrap of paper to prove the same and also 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. Hence it clearly shows that in order squeeze money from the public they have collected amounts but they have not completed the venture as per their agreement of sale-cum-construction agreement which is nothing but deficiency in service on their part. As the complainant invested the amount in the opposite party’s venture in order to own the flat but which is of no use. Hence the complainant proved that there a deficiency in service on part of the opposite parties towards her. Hence this point is answered in favour of the complainant.

        10. Point(ii):-   The complainant claimed delay compensation from the opposite parties as they failed to deliver the possession as mentioned in Ex:A3    i.e. Sale-Cum-Construction agreement in Para 13 clause(1) it was mentioned that the “opposite parties deliver the possession of the apartment by December, 2016” with a grace period of four months. But in this particular case the opposite parties has not delivered the possession as mentioned in the agreement. If they have been executed a registered sale deed and put him in possession of the apartment, she would have saved the rent. Hence she sustained loss. On those circumstances the complainant is entitled of Rs.5/- per Sq.ft as a compensation for delay in delivery of possession of the apartment purchased by the complainant. The apartment which was purchased by the complainant which comprises 1449sq.ft i.e. Rs.5X1449=7245 per month, hence as the opposite parties failed to deliver the possession with a grace period from December 2016 to April 2016. Hence she is entitled for compensation from May 2016 to till April 2017. Hence from May 2016 – April 2017 = 12 Months i.e. 7245X12=86,940/- . Hence the complainant is entitled for the compensation of Rs.86,940/- for 12 months as delay in delivery of the possession.

        The complainant further claimed Rs.10,00,000/- (rupees ten lakhs only) towards interest paid to the private borrowers and also for mental agony suffered by him and further interest with @ 24% p.a. from the date of the complaint till the date of handing over the possession of the flat. But in this particular case as per Ex:A4 the payment request letter clearly shows that the complainant has paid Rs.7,72,344/- (rupees seven lakhs seventy two thousands three hundred and forty four only) towards cost of the apartment. Hence it is reasonable to grant 10% of the above said amount i.e. Rs.77,234/- (rupees seventy seven thousands two hundred and thirty four only) towards compensation and also the complainant is entitled Rs.2,000/- (rupees two thousand only) towards costs of the litigation.

           The complainant further claimed the opposite parties to execute the register sale deed in favour of him by completing the construction work and deliver the possession to the complainant. Hence the complainant is entitled for the above said relief subject to the payment of remaining sale consideration by her to the opposite parties after completion of the construction work.  

         11.Point (iii):-   In view of our discussions in  points 1 and 2 we are of the opinion that the complainant has established that there is deficiency in service on part of the opposite parties towards the construction of the apartment purchased by him and to deliver the possession to him. Hence he is entitled for the compensation for delay in deliver of the possession and also damages for mental agony and deficiency in service and costs of the litigation and complaint is to be allowed accordingly.

          In the result, the compliant is allowed in part a) directing the opposite parties        1 to 4 jointly and severally to pay an amount of Rs. 86,940/- (rupees eighty six thousand nine hundred and forty 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 2016 to April 2017, b) the opposite parties are further directed to pay a sum of Rs. 77, 234/- (rupees seventy seven thousand two hundred and thirty four only) towards compensation for mental agony and deficiency ion service on part of the opposite parties which is 10% of the amount Rs. 7,72,344/- ( rupees seven lakhs seventy two thousands three hundred and forty four only) 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/- (rupees two thousands only) towards costs of the 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.86,940/- ( rupees eighty six thousand nine hundred and forty only) shall carry interest @ 9% p.a. from the date of the complaint till 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
	Special power of Attorney (Notarized attested copy) Dt: 29.02.2016.
	Allotment confirmation letter issued by opposite parties.(Notarized attested copy) Dt: 10.04.2014.
	Original agreement of sale filed on behalf of the complainants. Dt: 10.03.2014.
	Payment Receipt issued by the opposite parties (Notarized attested copy)                   Dt: 10.04.2014.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgments. Dt: 25.01.2016.
	Reply Notice . Dt:17.02.2016.

 

 

 

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.