Andhra Pradesh

Chittoor-II at triputi

CC/26/2016

M.Phani Bhushan, S/o M.Chengal Raya Sharma - 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: 31.03.2016

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.26/2016

 

 

Between

 

 

1.         M.Phani Bhushan,

            S/o. M.Chengalraya Sharma,

 

2.         Punam Rani,

            W/o. M. Phani Bhushan

 

Both are residents of

D.No.102, Srinivasa Residency,

Prasanthi Nagar,

Near Shiva Shakthi Kalyana Mandapam,

Khadi Colony,

Tirupati.                                                                                 … Complainants.

 

 

 

And

 

 

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

            Rep. by its Power of Atttorney 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 Atttorney 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  1 to 4 for the following reliefs 1) to direct the opposite parties to complete the construction work of the flat No.203 in F2 floor in Block-E in Phase-II, in Marg Vishwashakthi Venture, Kotramangalam village accounts, Renigunta Mandal, Tirupati, and deliver possession of the same to the complainants and execute registered sale deed in favour of the complainants, 2) to direct the opposite parties to pay Rs.2,31,840/- towards delay compensation for the period from 01.06.2013 to 28.02.2016 at Rs.5/- per sq.ft. per month and for further period from the date of complaint along with interest at 24% p.a., 3) to direct the opposite parties to pay Rs.15,00,000/- towards the interest paid on private borrowals, physical strain and mental agony suffered by the complainants and their family members for gross negligence and deficiency in service on the part of the opposite parties along with 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 booked flat No.203 in F2 floor in Block-E (Block No.304) in Phase-II of Marg Vishwashakthi Venture, launched by the opposite parties on 23.09.2010 by paying Rs.50,000/- as advance. The opposite parties have confirmed the booking by their letter. The cost of the flat is mentioned in sale-cum-construction agreement as Rs.26,58,076/-, which includes 3BHK flat, car parking along with common amenities viz. 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.

            3. At the time of sale-cum-construction agreement, the opposite parties promised to handover the finished apartment by January 2013 with a grace period of   4 months. The opposite parties agreed to pay compensation at Rs.5/- per sq.ft. per month, in case of delay in completion of apartment, after expiry of grace period, as per the terms and conditions of the agreement. The complainants so far have paid a sum of Rs.17,59,592/- i.e. 66% of the total cost of the flat, but the opposite parties did not comply with the terms of the sale-cum-construction agreement, though received huge amount of Rs.17,59,592/-. The opposite parties failed to complete the construction of the flat and also to pay compensation for the delay as agreed in sale-cum-construction agreement. Thus the opposite parties are guilty of deficiency in service. They caused much mental agony to the complainants. Hence the complaint.         

4.  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.1724/- 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 complainants and it is progressive work, and the complainants 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 complainants 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 complainants have 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.  

5.  The 1^st complainant filed his chief affidavit as P.W.1 and got marked Exs.A1 to A7. 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.  

            6.  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?

            7. Point No.(i):-  Admittedly, the complainants have purchased flat No.203 in F2 floor in Block-E (Block No.304) in Phase-II in Marg Vishwashakthi  Venture, launched by the opposite parties, and they entered into sale-cum-construction agreement Ex.A1 dt:17.01.2012. By the time of booking the flat, the complainants have paid a sum of Rs.50,000/- towards advance amount on 23.09.2010. The total cost of the flat is Rs.26,58,076/-, which includes the cost of 3 BHK flat, car parking and other common amenities referred to above. That the opposite parties also promised to complete the construction of the flat and deliver possession of the flat by January 2013 with a grace period of 4 months, but so far the construction is in standstill  position. The opposite parties for the reasons best known could not complete the construction of the apartment, but they have received a sum of Rs.17,59,592/- i.e. 66% of the total cost of the flat, but there is no improvement in the construction. Apart from it, the skeleton construction, which was made by the opposite parties, was exposed to sun and rain since more than 4 years, likewise, the opposite parties also failed to pay compensation amount at Rs.5/- per sq.ft. per month for the delay in construction of the apartment as agreed in sale-cum-construction agreement. Therefore, the complainants are claiming the said amount as compensation after expiry of grace period i.e. from 01.06.2013 onwards.

            8.  The opposite parties placed defence contending that the delay was due to state bifurcation issue, non-availability of sand, bricks, cement, raw material, labour etc. They also contending that the Sub Registrar Office at Tirupati was not functioning due to which they could not execute the registered sale deed in favour of the complainants. They also further contending that for want of approvals from the concerned statutory bodies and also permissions from the Government, they could not complete the construction. They also further contending that due to bundhs, strikes and agitations in view of the state bifurcation, they could not complete the work, as the labour was also not available. Delay in completion of construction on account of alleged agitations by political parties could not be sustained by opposite parties. 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. Upon considering these facts and circumstances, it is observed that state bifurcation was already over by June 2014 itself, but thereafter nearly 3 years is going to be completed, but for the reasons best known to the opposite parties, the construction was in standstill position as admitted. The learned counsel for the opposite parties while advancing arguments represented that now the work is proceeding on day to day basis and it will be completed shortly, but they did not specify a particular period or month or year, when the construction will be completed and when the possession of the flat will be delivered to the complainants. Under the above circumstances, complainants cannot be compelled to wait for uncertain period till opposite parties are able to complete construction of the flat. We are relying no a decision reported in 11(2017) CPJ 508 (NC) Ranjeet Bhatia Vs. Super Tech Limited and Anr. The apartment was booked in 2010 in the month of September. Subsequently, the agreement was entered into on 17.01.2012 as shown in Ex.A1. Even after the agreement is entered into by both parties, the construction was not completed though almost 5 years have been lapsed. The other contention raised by the opposite parties is that unless the remaining sale consideration is paid by the purchasers, it will not be possible to complete the construction. Though 66% of the sale consideration was received from the complainants, progress in the construction was in standstill position, except the skeleton work as admitted by both the parties. So, it appears that the opposite parties though availed huge amounts in crores from the complainants in this batch matters, which were 23 in number, the opposite parties failed to complete the promises made in Ex.A1 sale-cum-construction agreement. The terms and conditions of the sale-cum-construction agreement almost appears to be one sided, except the said condition of delay compensation as shown in Clause-3 under the head of Payment Schedule, all other conditions are making the opposite parties empowered to claim interest if the payments are delayed by the purchasers, but similar condition was not made applicable for the complainants, and no such conditions were incorporated in the sale-cum-construction agreement Ex.A1 entitling the parties to claim interest on the amounts paid. Under the above circumstances, we are of the opinion that the complainants by virtue of Ex.A1, A2 and A3 established that there is gross negligence and deficiency in service on the part of the opposite parities. Accordingly this point is answered.

            9. Point No.(ii):-  before answering this point, we have to state that the complainants though claimed Rs.15,00,000/- towards interest paid on private borrowals, the alleged private borrowals was not established by the complainants by filing any scrap of paper. Therefore, this relief cannot be granted. So far as other reliefs are concerned, in view of the specific terms and conditions agreed under Clause-3 in sale-cum-construction agreement dt:17.01.2012, the opposite parties are bound to pay Rs.5/- per sq.ft. per month to the complainants from 01.06.2013 till April 2017 as agreed. Similarly, the opposite parties also liable to complete the construction and deliver possession of the flat No.203 to the complainants along with all amenities agreed upon. The total extent of the flat is 1449 sq.ft., if compensation is calculated at Rs.5/- per sq.ft., which comes to 1449 x 5 = 7245 per month, from 01.06.2013 to April 2017 (3 years 10 months) it comes to 7245 x 46 = 3,33,270/-. Thus the opposite parties have to pay a sum of Rs.3,33,270/- towards compensation for the delay in completion of the construction of flat No.203, as agreed under Ex.A1.

            10. Similarly, for the deficiency in service, the opposite parties have to pay 10% of the amount paid by the complainants i.e. 10% of Rs.17,59,592/-, which comes to Rs.1,75,959/- and also for causing mental agony to the complainants for the last        4 years. Accordingly, the complainants have made out the case, to claim the compensation for delay in completion of the construction of the flat and also compensation for deficiency in service and for mental agony. Accordingly this point is answered.

            11. Point No.(iii):- in view of our holding 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 and also that there is gross negligence on the part of the opposite parties and violation of terms and conditions under Ex.A1. Therefore, they are liable to pay compensation for the delay as well as compensation for deficiency in service and also costs of the complaint and 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.203 in F2 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.3,33,270/- (Rupees three lakhs thirty three thousand two hundred and seventy only) towards compensation for the delay in completing the construction as agreed in Clause-3 of Ex.A1 dt:17.01.2012 @ Rs.5/- per sq.ft per month from 01.06.2013 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.1,75,959/- (Rupees one lakh seventy five thousand nine hundred and fifty nine 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.3,33,270/- 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: M. Phani Bhushan (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
	Sale-cum-construction agreement in favour of 1st complainants (Notarized attested copy) Dt: 04.01.2012.
	Payment request letter showing payments made by complainants (Notarized attested copy). Dt: 03.07.2013.
	Receipt (No: 2441) issued by the opposite parties (Notarized attested copy). Dt: 10.07.2013.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 22.03.2016.
	Letter of the opposite parties (Original). Dt: 22.11.2013.
	Letter of the opposite parties (Original). 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 complainants.

                        2.  The opposite parties.