Andhra Pradesh

Chittoor-II at triputi

CC/22/2016

K.V.Gopalakrishnan, S/o K.Venkata Subbaiah - 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: 26.03.2016

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.22/2016

 

 

Between

 

 

1.         K.V.Gopalakrishnan,

            S/o. K.Venkkata Subbaiah,

 

2.         K.G.Lakshmi Devi,

            W/o. K.V.Gopalakrishnan,

 

Both are residents of

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

Senthil Nagar,

Kalathur,

Chennai.                                                                                … 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 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 complainants against the opposite parties for the following reliefs 1) to direct the opposite parties to complete the construction work of the flat No.802 in F8 floor in Block-E 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 complainants, 2) to direct the opposite parties to pay to the complainants a sum of Rs.1,50,040/- towards delay compensation from 01.05.2014 to 28.02.2016 at Rs.5/- per sq.ft. per month and also for further period from the date of the complaint along with interest at 24% p.a. till the date of 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, physical strain and mental agony suffered by the complainants and their family members for gross deficiency in service with further 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 being husband and wife purchased flat No.802 in F8 floor in Block-E (Block No.304) in Phase-II in Marg Vishwashakthi Venture, launched by the opposite parties in Kotramangalam village, Renigunta Mandal in the year 2012. That the complainants have booked the flat No.802 on 18.02.2012 by paying an advance amount of Rs.1,00,000/-. That the opposite parties have confirmed the booking by their letter dt:03.03.2012. The cost of the flat on the date of booking is Rs.34,43,116/- as shown under booking form Ex.A1, which includes 3BHK flat, E-Stilt car parking No.6,17 and open car park along with the above 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. Payment should be made as per Annexure – A1 and A2 of sale-cum-construction agreement dt:14.07.2012. The opposite parties promised to handover the finished apartment by December 2013 with a grace period of 4 months, and the complainants have so far paid Rs.24,15,946/- (70% of the total cost). The opposite parties also agreed to pay compensation of Rs.5/- per sq.ft. per month, after the expiry of grace period in the event of delay in completion and handing-over the possession of the flat, but the opposite parties failed not only in completing the construction, delivery of possession of the flat, and also in paying the delay compensation as per the terms and conditions of the sale-cum-construction agreement Ex.A3. Though collected Rs.24,15,946/- out of the total cost of the flat Rs.34,43,116/-, the opposite parties left the skeleton structure exposing to sun and rain without any progress of work for the last 4 years and the structural soundness of the apartment is very much affected. That the complainants have borrowed Rs.20,00,000/- for higher rate of interest from private financiers and paying interest for that amount. The opposite parties have violated the terms and failed to handover the finished apartment and also failed to pay the delay compensation as agreed. Hence the complaint.

            3.  The opposite party No.1 filed the written version and the same is adopted by opposite parties 2 to 4. Paragraphs 3 to 18 of the written version are general denial of parawise allegations of the complaint including booking of the flat by complainants etc. The opposite parties further contended that they have completed Phase-I consisting of 192 apartments and handed-over them to the customers. Subsequently, they started Phase-II and the work is in progress day to day. Due to shortage of labour, sand, bricks, the project could not be completed within the stipulated time. Due to split-up of Andhra Pradesh, Samaikyandhra Bandh, strikes and non-availability of raw material, delay regarding various approvals and Government regulations, exorbitant increase of raw material, unforeseen economic slowdown, delay in payment by the flat buyers, they could not complete the construction work. That the opposite parties could not register the flat due to non-functioning of Sub Registrar Office at Tirupati, as a consequence of state issue. That the complainants purchased the flat at Rs.2319/- per sq.ft. by the time of launching the project by the opposite parties. Subsequently, the construction cost gone up to Rs.3200/- per sq.ft., the difference amount was not claimed by the opposite parties. That the Government issued G.O. not to lift the sand without prior permission. There is delay of progress in the construction work due to non-availability of raw material and cement etc., and prices were also abnormally increased. Cement is not available in the free market. Shortage of labour, Samaikyandhra Bandh and heavy rainfall in Tirupati, resulted downfall in the real estate market. The project was delayed due to unavoidable circumstances only and it was beyond the control of the opposite parties. Therefore, the opposite parties are not liable to pay any damages. The opposite parties going on work day to day and the other customers also not cooperating in payment of balance amount. Unless the opposite parties receive the payments from the other customers, there is no possibility for progress of work day to day. The opposite parties are ready to handover the flat to the complainants, but they filed this complaint unnecessarily. Recently, the entire raw material and machinery were taken away by the followers of the complainants. Still more than 42 units are to be sold. Under the above circumstances, the delay was occurred. The complainants without following arbitration proceedings clause filed this complaint. Therefore, the complaint is not maintainable. This Forum has no jurisdiction to entertain the complaint and prays the Forum to dismiss the complaint with costs.                       

            4.  The 1^st complainant filed his chief affidavit as P.W.1 and got marked Exs.A1 to A10. One 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):-  to answer this point, the complainants contending that they have purchased flat No.802 in F8 floor in Block-E (Block No.304) in Phase-II in Marg Vishwashakthi Venture, for Rs.34,43,116/-, which includes 3BHK flat with     E-Stilt car parking bearing No.6, 17 along with common amenities, as shown in booking form Ex.A1 dt:18.03.2012 and sale-cum-construction agreement Ex.A3 dt:14.07.2012. The flat is in the extent of 1364 sq.ft. in Block-E, F8 floor, its cost is Rs.2,319/- per sq.ft., car parking cost is Rs.1,30,000/-, other charges are Rs.1,50,000/- these charges were also fixed by the opposite parties. Payment is to be made as per Annexure – A1 and A2 of Ex.A3. Opposite parties promised to handover the finished flat to the complainants by December 2013 with a grace period of 4 months and also promised to pay compensation of Rs.5/- per sq.ft. per month in case of any delay in delivering the possession of the flat.

            7.  So far the complainants have paid 70% of the total cost of the flat i.e. Rs.24,15,946/- as per accounts statement Ex.A4 given by the opposite parties. Inspite of it, the opposite parties failed to complete the construction of the flat and also failed to pay the delay compensation as agreed at Rs.5/- per sq.ft. per month. The above facts were admitted by the opposite parties, and stating that due to unavoidable circumstances and the situation beyond their control, the opposite parties could not complete the project. Exs.A1 and A4 are clearly establishing the case of the complainants, but it appears that the opposite parties are trying to avail each and every opportunity and left the construction unfinished to open sky. The opposite parties  taking advantage of sunlight and rainfall also.

            8.  If there is shortage of labour, shortage of sand, bricks and delay in various approvals by the statutory bodies or by the Government, are no way concerned to the complainants and it is the headache of the opposite parties. The alleged bundhs, agitations or strikes 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. – Their Lordships held: “CP Act 1986 – Housing – Booking of Residential flat – Non-delivery of possession – Refund of amount sought – Deficiency in Service – Delay in completion of construction on account of alleged agitation by farmers could not be sustained by the opposite party – No evidence of having invited tenders for engagement of contractors / sub-contractors with adequate manpower for executing the work at the site of the project ….. opposite party shall refund entire amount of Rs.3,43,18,690/- paid to it by the complainants – Compensation in the form of simple interest @ 10% p.a. awarded. Litigation costs of Rs.10,000/- is awarded”. They ought to have launch the project after obtaining the approvals only. If the opposite parties launched the Marg Vishwashakthi Venture without getting prior approvals from the Government or from the Statutory Bodies, it amounts to misleading the public. The opposite parties having received Rs.24,15,946/- i.e. 70% of the total cost of the flat did not complete the construction of the flat so far. Though 3 complete years have been elapsed from the date on which the opposite parties agreed to deliver possession of the flat, the opposite parties failed to comply with the terms and conditions of Ex.A3. The opposite parties failed to substantiate either of their allegations by filing any scrap of paper i.e. any documentary proof. They did not furnish the period during which Samaikyandhra Bandh, heavy rain in Tirupati and closure of Sub Registrar Office and increase of cost of the raw material, sand and bricks etc. and they are also failed to mention what are the approvals still pending un-approved with the statutory bodies. The state bifurcation was over by June 2014, then there are no grounds to stop the construction work or keeps the construction pending. By virtue of all these facts admitted and the contents of Exs.A1 and A4, it can be safely held that complainants have established that there is deficiency in service on the part of the opposite parties, for which they are liable to pay compensation. Accordingly, this point is answered.

            9. Point No.(ii):- in order to prove this point, the documents filed by the complainants i.e. Exs.A1 to A4 are the crucial documents substantiating the case of the complainants. Ex.A1 is booking form dt:18.02.2012. Ex.A2 is allotment confirmation letter dt:03.03.2012 issued by the opposite parties. Ex.A3 is the sale-cum-construction agreement dt:14.07.2012 and Ex.A4 is the account statement issued by the opposite parties evincing the payment made by the complainants. By virtue of the above said 4 documents, the complainants have established that they have booked flat No.802, F8 floor, Block-E, in an extent of 1364 sq.ft. and its rate is Rs.2319/- per sq.ft., in Phase-II of the Marg Vishwashakthi Venture, for a total consideration of Rs.34,43,116/- by paying Rs.1,00,000/- as advance amount on 18.02.2012 as shown in Ex.A1.

            10. The payment should be made by the complainants as shown in Annexure – A1 and A2 of Ex.A3 sale-cum-construction agreement. Under Clause-13.1 of Ex.A3 the opposite parties have agreed to deliver possession of the residential apartment to the complainants by December 2013 with a grace period of 4 months. In Clause-3  of Ex.A3, the opposite parties agreed to pay compensation of Rs.5/- per sq.ft. per month in case of delay in completion of work and to deliver possession of the flat after the grace period. This is the only exclusive remedy available to the complainants. Inspite of all these agreed liabilities, the opposite parties could not complete the construction of the apartment with all the amenities agreed upon and also did not pay the agreed compensation of Rs.5/- per sq.ft. per month though there was abnormal delay in completion of the construction of the apartment. The complainant cannot be compelled to wait for an uncertain period till opposite party is able to complete the construction of the flat, which it had booked by them. In this regard, we are relying on a decision reported in 11(2017) CPJ 508 (NC) Ranjeet Bhatia Vs. Super Tech Limited and Anr. 

            11. Therefore, the complainants claiming compensation for deficiency in service and for mental agony caused and also claiming compensation for the delay in construction of the apartment as agreed by the opposite parties. The complainants, however, failed to establish that they have borrowed some amounts from the private borrowers and paying interest thereon. The complainants established that there is deficiency in service as discussed in point No.1. The total cost of the flat is Rs.34,43,116/-, out of which the complainants have paid Rs.24,15,946/- by 21.06.2013 itself as shown in Ex.A4 statement of account issued by the opposite parties, but till today the opposite parties could not complete the construction. The reasons assigned by the opposite parties for the delay appears to be baseless and quite un-reasonable. Therefore, we are of the opinion that awarding 10% of the amount paid towards deficiency in service and for mental agony will meet the ends of justice. The amount paid so far by the complainants is Rs.24,15,946/-. 10% of it would comes to Rs.2,41,594/-. This amount is liable to be paid by the opposite parties with interest at 9% p.a. from the date of complaint, till realization. Similarly, the opposite parties also liable to pay compensation of Rs.5/- per sq.ft. per month from 01.05.2014 to April 2017 i.e. for 3 years as agreed in Ex.A3. The total extent of the flat is 1364 sq.ft.. Compensation at Rs.5/- per sq.ft. comes to 1364 x 5 = 6820 per sq.ft. per month, for 3 years it comes to 6820 x 36 = 2,45,520/-. Thus the complainants are entitled to the reliefs sought for as narrated supra and 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 complainants have established that there is deficiency in service on the part of the opposite parties. That the complainants are entitled to the compensation for deficiency in service, compensation for delay in completion of construction as agreed in Ex.A3 and costs of the complaint and therefore 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 complete the construction of  flat No.802 in F8 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.2,45,520/- (Rupees two lakhs forty five thousand and five hundred and twenty only) towards compensation for the delay in completing the construction as agreed in Clause-3 of Ex.A3 dt:14.07.2012 @ 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.2,41,594/- (Rupees two lakhs forty one thousand five hundred and ninety four 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.2,45,520/- 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/s.

 

PW-1: K.V. Gopalakrishnan (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite Party/s.

 

RW-1:  T. Ram Mohan   (Chief Affidavit filed)

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Booking Form (Notarized attested copy) Dt: 18.02.2012.
	Allotment Confirmation Letter issued by Opposite Parties (Notarized attested copy). Dt: 03.03.2012.
	Original Agreement of Sale, filed by complainants. Dt: 02.07.2012.
	Account Statement showing payments made by Complainants (Notarized attested copy).
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements (Notarized attested copy). Dt: 25.01.2016.
	Reply Notice. Dt: 17.02.2016.
	Multi colored Brochure of the opposite parties.
	Letter given by the opposite parties (Notarized attested copy). Dt: 23.11.2013.
	Letter given by the opposite parties (Notarized attested copy). Dt: 24.05.2014.
	Calculation Sheet.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

     -NIL-

  

          

                                                                                                                                     Sd/-       

                                                                                                                      President

      // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

           Dist. Consumer Forum-II, Tirupati.

  

 

Copies to:-     1.  The complainants.

                        2.  The opposite parties.