Andhra Pradesh

Chittoor-II at triputi

CC/36/2016

Konidala Vasudha, W/o K.Himavan - 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: 22.04.2016

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

 

 

 

THE ELEVENTH DAY OF MAY, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.36/2016

 

 

Between

 

 

Konidala Vasudha,

W/o. K.Himavan,

Hindu, aged 38 years,

Residing at

D.No.24-110/1 BC Naidu Colony,

Sai Nagar Extension,

Chittoor.                                                                                                        … Complainant.

 

 

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 Limted,

            Represented by its Authorised Signatory,

            S.Satish,

            S/o. S.Ramamurthy,

            Holding 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 Mandal,

            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 1 to 4 for the following reliefs 1) to direct the opposite parties to complete the construction work of flat No.706 in F7 floor in Block-G 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 and also execute registered sale deed in favour of the complainant 2) to direct the opposite parties to pay Rs.1,56,860/- towards delay compensation from 01.05.2014 to 31.03.2016  at Rs.5/- per sq.ft. per month and also for further period from the date of complaint with interest at 24% p.a., till handing over the 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 her 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 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 complainant purchased flat No.706 in F7 floor in Block-G (Block No.303) in Phase-II in Marg Vishwashakthi Venture, launched by the opposite parties in Kotramangalam village, Renigunta Mandal, Tirupati, on 30.08.2011 by paying Rs.1,00,000/- as advance. The opposite parties confirmed the booking of the flat. The cost of the flat at the time of booking was Rs.27,63,876/-, and the same is mentioned in the booking form, this cost includes 3BHK flat, car parking along with 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 Play Area, Gym and various other usual amenities. The payment for the flat is to be released stage wise construction as per Annexure - A1 and A2 of the sale-cum-construction agreement dt:22.06.2012. The complainant so far paid a sum of Rs.19,71,297/- on various occasions and the opposite parties have issued receipts for the payments. The payment request letter issued by the opposite parties is herewith filed. At the time of agreement, the opposite parties have promised to handover the finished apartment by December 2013 with a grace period of 4 months. Till date the complainant has paid 71% of the total cost of the flat. The complainant did not get possession of the flat so far. At present, the construction work has come to a standstill position. The complainant borrowed monies from private lenders and paying interest in huge amount. Due to inordinate delay, in handing over the possession of the finished flat by the opposite parties, resulting financial loss to the complainant. That the opposite parties also further agreed that they will pay compensation at Rs.5/- per sq.ft. per month after the grace period of 4 months, in case of delay occurred in completing the construction and handing over the possession of the flat, but the opposite parties failed either to complete the construction work, handing over the possession of the flat or also to pay the agreed compensation amount of Rs.5/- per sq.ft. per month, inspite of the notice got issued by the complainant. The skeleton work, which was made by the opposite parties was exposed to sun and rain, consequently, it lost its strength. The rods were also under the stage of corrosion. The opposite parties have stopped the construction work in the entire site from June 2013. Instead of the demands made by the complainant, they could not complete the work. Thus they have caused lot of mental agony to the complainant and her family members, as such the opposite parties are guilty of deficiency in service. Therefore, they are liable to pay compensation for deficiency in service on their part and for delayed compensation. Hence the complaint.      

3.  Opposite party No.1 filed written version and the same is adopted by opposite parties 2 to 4. In the written version, paragraphs 3 to 18 are the general denial of parawise allegations of the complaint. The opposite parties further contended that the work in Phase-II was started and is in progress day to day. That due to shortage of labour, sand and bricks, the project was not completed within the stipulated time.  Due to separation of Andhra Pradesh, for formation of Telangana State, Samaikyandhra Bandh, strikes by various parties, non- availability of raw material, delay in various approvals by the Government, and exorbitant increase in the cost of raw material etc. are the causes for delay in completion of the construction. The opposite parties admitted that the complainant purchased a flat at Rs.1909/- per sq.ft. Later the rates were gone up to Rs.3,200/- per sq.ft. That the Government issued G.O. not to lift the sand without prior permission. There is delay in progress of construction for the above reasons, which are beyond the control of the opposite parties. Therefore, the opposite parties are not liable to pay any amount to the complainants. The opposite parties further contended that unless the opposite parties receive the payment from other customers, there is no possibility for progress of work. The opposite parties are ready to handover the flat to the complainant and it is progressive work, and the complainant unnecessarily approached the Forum with an intention to harass the opposite parties. One C.Manohar, Civil Contractor has taken away the raw material. Recently, the followers of the complainant also took away the raw material and machinery. That 42 unsold flats were there and they are to be sold away. There is no deficiency in service on the part of the opposite parties. That the complainant has violated the terms and conditions of the sale-cum-construction agreement, by filing the complaint before this Forum instead of approaching the arbitrator at Chennai. This Forum has no jurisdiction to entertain the complaint and prays the Forum to dismiss the complaint with costs.      

            4.  The complainant has filed evidence affidavit as P.W.1 and got marked Exs.A1 to A9. 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.               

            5.  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?

            6. Point No.(i):- In order to answer this point, the complainant relied on Ex.A1 booking form dt:30.08.2011, Ex.A2 sale-cum-construction agreement dt:22.06.2012, Ex.A3 payment request letter given by the opposite parties dt:26.11.2014 and also Ex.A4 payment receipt No.2633 dt:05.12.2014, according to which the complainant has purchased the flat No.706, as contended by the complainant, by paying an advance amount of Rs.1,00,000/-. Both the parties have entered into sale-cum-construction agreement under Ex.A2, in which the opposite parties have promised to complete the construction of the flat by December 2013 with a grace period of            4 months, and also the opposite parties agreed in Clause-3 of Ex.A2 that they will pay compensation of Rs.5/- per sq.ft. per month after expiry of grace period of 4 months, in case of any delay is there on the part of the opposite parties in completing the construction work. According to the opposite parties under Ex.A3 payment request letter, the complainant has paid Rs.16,87,552/-. Under Ex.A4 the opposite parties have received another sum of Rs.2,83,745/-, totally the opposite parties received a sum of Rs.19,71,297/- from the complainant. But so far the opposite parties could not complete the construction work of the flat and not delivered possession of the flat to the complainant and no registered sale deed was executed in favour of the complainant so far. The opposite parties are making false promises to the purchasers /complainants and making them to purchase the flats by paying huge amounts in lakhs of rupees and later they stopped the construction work from 2013 itself, as contended by the complainant, for which there was no specific denial.

            7.  The opposite parties contended that the cause for the delay is due to state bifurcation, abnormal increase in the prices of sand, cement, bricks, raw material and also the cost of the site and for want of labour, non-availability of sand, cement, raw material etc., and also for non-sanctioning / approvals by the State Government or the Statutory Bodies concerned, for which they could not complete the construction within the stipulated time. It is pertinent to mention that it is a known fact that the state bifurcation issue was solved by the Government of India in the month of June 2014 itself. Even after that period, the opposite parties could have completed the construction and deliver the flat to the purchasers like complainant herein. The opposite parties mentioned in their written version, evidence affidavit and also in written arguments that unless the complainant paid the balance amount of sale consideration, there is no scope for showing progress in the construction work. If the balance of sale consideration also paid by the complainant, who will be responsible for the said amounts, which were collected in crores of rupees from the complainants, who filed the complaints before this Forum (which were 23 in number). Even according to the payments admitted by the opposite parties, so far they have collected about 4 crores from these complaints alone. Thus, having collected such huge amounts, the opposite parties for the reasons best known stopped the construction from 2013 itself. Though the opposite parties have availed three (3) complete years and six (6) months so far, thereafter the stipulated time, they failed to complete the construction of the flat. Under the above  circumstances, complainant cannot be compelled to wait for an uncertain period till the opposite parties are able to complete the construction, as was held in the decision reported in 11(2017) CPJ 508 (NC) Ranjeet Bhatia Vs. Super Tech Limited and Anr. That the opposite parties also making advantage of every incident and events such as heavy rainfall and closure of Sub Registrar Office, without there being any proof for either enhancement of prices of cement, bricks, sand etc., also that the G.O’s said to have been issued by the Government of A.P for not lifting the sand, and also in respect of non-functioning of Sub Registrar Office, and the date on which Tirupati recorded heavy rainfall, suspecting / recording down fall in real-estate business in Tirupati. Thus, all allegations are without any basis. The interest of the opposite parties is apparent on record, that they launched the project to secure huge amounts in crores of rupees from the public and stopped the construction work on some pretext or the other. It is also apparent on record that the opposite parties have violated the terms and conditions of Ex.A2 sale-cum-construction agreement dt:22.06.2012. Apart from it, they are blaming the complainant for filing the complaint contending that the complainant has violated Clause-24 of Ex.A2 in respect of arbitration proceedings. Section-13 of the C.P.Act, enables the complainant / consumer to approach the Consumer Forum, inspite of such clause incorporated in the agreement. Ex.A2 appears to be one sided and not at all helpful to the complainant, except a small condition that the opposite parties will pay compensation at Rs.5/- per sq.ft per month in case of delay, but the opposite parties failed to comply the said condition also. Under the above circumstances, we are of the opinion that the complainant has established that there is deficiency in service on the part of the opposite parties and the opposite parties have also adopted unfair trade practice. Accordingly this point is answered.

            8.  Point No.(ii):- the first relief sought for by the complainant that there should be a direction to the opposite party to complete the construction work of flat No.706 in F7 floor in Block-G in Phase-II in Marg Vishwashakthi Marg, purchased by the complainant and to deliver possession of the same and also execute registered sale deed, which is quite proper in the circumstances of the case. Therefore, the opposite parties are liable to complete the construction and deliver possession of the flat and also execute registered sale deed on receiving balance of sale consideration. The second relief is to direct the opposite parties to pay Rs.1,56,860/- towards delay compensation from 01.05.2014 to 31.03.2016 at Rs.5/- per sq. ft. per month and also for further period from the date of complaint till realization with interest at 24% p.a. This relief is promised by the opposite parties under Ex.A2, so in our view the complainant is entitled for the said relief. For this relief the calculation is as follows. The total extent of the flat as per Ex.A2 is 1364 sq.ft. i.e. 1364 x 5 = 6820/- per month, from 01.05.2014 to April 2017, it comes to 6820 x 35 = Rs.2,38,700/-. The opposite parties are liable to pay this amount within one month from the date of receipt of copy of this order. The another relief is to direct the opposite parties to pay a sum of Rs.13,00,000/- towards interest paid on private borrowals, physical strain and mental agony caused to the complainant and for deficiency in service on the part of the opposite parties. As the complainant failed to establish the alleged private borrowals i.e. how much they have borrowed, from whom they have borrowed etc. therefore, this aspect cannot be considered. However, the complainant is entitled to compensation for deficiency in service on the part of the opposite parties and for mental agony suffered, for this purpose we are of the opinion that if 10% of the amount already paid by the complainant is awarded, it will meet the ends of justice. The total cost of the flat is Rs.27,63,876/-, out of which the complainant has paid so far a sum of Rs.19,71,297/-, 10% of the amount paid comes to Rs.1,97,130/-, this amount should be paid by the opposite parties with interest at 9% p.a. from the date of complaint till the date of delivery of possession of the flat as compensation for deficiency in service on the part of the opposite parties and for mental agony caused to the complainant. The complainant is also entitled for the costs of the complaint.  

            9.  Point No.(iii):- in view of our discussion on points  1 and 2, we are of the opinion that the complainant has established that there is deficiency in service on the part of the opposite parties, that the complainant is also entitled for the reliefs discussed above and 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 complete the construction of  flat No.706 in F7 floor in Block-G (Block No.303) 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.2,38,700/- (Rupees two lakhs thirty eight thousand and seven hundred only) towards compensation for the delay in completing the construction as agreed in Clause-3 of Ex.A2 dt:22.06.2012 @ 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.1,97,130/- (Rupees one lakh ninety seven thousand and one hundred and thirty 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.2,38,700/- 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:  Konidala Vasudha (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: 10.10.2011.
	Original Agreement of Sale, filed by complainants. Dt: 14.06.2012.
	Payment request letter given by the opposite parties(Notarized attested copy).  Dt: 26.11.2014.
	Payment Receipt issued by the opposite parties (Notarized attested copy)                   Dt: 05.12.2014.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgments. Dt: 25.01.2016.
	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: 08. 03.2014.
	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.