Andhra Pradesh

Chittoor-II at triputi

CC/25/2016

P.Anitha, W/o A.Rajesh - 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: 29.03.2016

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.25/2016

 

 

Between

 

 

1.         P.Anitha,

            W/o. A.Rajesh,

 

2.         A.Rajesh,

            S/o. A.Bhaskar Naidu,

 

Both are residents of

D.No.39, Raghunath Resorts,

Tanapalli Road,

Tiruchanur.                                                                           … 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.402 in F4 floor in Block-F in Phase-II, in Marg Vishwashakthi Venture, Kotramangalam village accounts, Renigunta Mandal, Tirupati, 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.1,86,400/- towards delay compensation from 01.06.2013 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 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.402 in 4^th floor in Block-F (Block No.202) in Phase-II of Marg Vishwashakthi venture launched by the opposite parties by paying Rs.50,000/- as advance on 20.06.2010 as shown in Ex.A1 booking form. The opposite parties confirmed the booking through their letter. The total cost of the flat at the time of booking is Rs.19,99,535/- including the cost of 2BHK with car parking along with common amenities namely 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, which the opposite parties promised to provide and both the parties have entered into a sale-cum-construction agreement dt:22.11.2011. Payment should be made as per Annexure - A1 and A2 of Ex.A2 sale-cum-construction agreement. Out of the total consideration, the complainants have paid Rs.13,13,918/- (66% of the cost) as per payment request letter got issued by the opposite parties. The opposite parties agreed in Ex.A2 sale-cum-construction agreement, that the finished flat will be handed-over to the complainants by January 2013 with a grace period of 4 months. They also agreed to pay compensation at Rs.5/- per sq.ft. per month in case of any delay after the grace period, till handing over  the possession of the flat.

            3.  The opposite parties failed to comply with the terms and conditions of the agreement dt:22.11.2011. So far they laid only skeleton structures and left the same to its fate by exposing the said structures to sun and rain, due to which structures are losing their strength. The opposite parties also did not pay compensation at Rs.5/- per sq.ft. per month as agreed. Thus the opposite parties have committed gross negligence and there is deficiency in service on the part of the opposite parties. Having received huge amount of Rs.13,13,918/- towards 66% of the sale consideration, they could not complete the construction work since last more than 3 years. 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.1579/- 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 her 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.402 in 4^th floor in Phase-II of Marg Vishwashakthi Venture, launched by the opposite parties for Rs.19,99,535/-, by booking the flat on 20.06.2010, and also by paying an advance amount of Rs.50,000/-. Out of the total cost of the flat, the complainants have paid Rs.13,13,918/-, which is nearly 66% of the total cost, but the construction of the apartment is in standstill position since 2013. There is no progress; no construction is going on except the skeleton work. Thus opposite parties have violated the terms and conditions of Ex.A2 sale-cum-construction agreement dt:22.11.2011 in completing the construction of the apartment and in delivering possession of the finished flat by January 2013, even after expiry of grace period of 4 months thereafter, and also violated the terms and conditions of Ex.A2 in paying compensation at Rs.5/- per sq.ft., as agreed for the delay in construction of the flat and handover the same to the complainants.

            8.  The skeleton works that were executed by the opposite parties so far, also exposed to sun and rain years together consequently lost its strength. Inspite of several remainders and notices, the opposite parties could not complete the construction having received huge amount from the complainants and other customers, hence, there is deficiency in service on the part of the opposite parties and due to the negligence on the part of the opposite parties the complainants and their family members suffered mental agony. The opposite parties are taking advantage of several past events and postponing the construction on some pretext or the other from 2011 and failed to deliver possession of the flat so far. Complainants cannot be compelled to wait for an uncertain period till opposite parties able to complete construction of 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.  The opposite parties contending that there was heavy rain in Tirupati causing hardship to the construction work, without giving any evidence or any specific date on which such heavy rain was occurred and their work was stopped. The opposite parties further contending that the Sub Registrar Office at Tirupati was closed, as such they could not execute the registered sale deed in favour of the complainants, for this version also no evidence is placed before the Forum. The opposite parties have raised several pleas for non-completion of the construction work of the apartment without there being any sort of evidence. The state bifurcation issue was over by June 2014 itself. Then what made the opposite parties not to proceed with the construction of the apartment. Securing the labour, sand, bricks and cement and getting approvals or sanctions from the Government or Statutory Bodies is the lookout of the opposite parties, for which complainants are not to be made scapegoats. On the above grounds, we are of the opinion that the complainants have established that there is deficiency in service on the part of the opposite parties. Accordingly this point is answered.

            9.  Point No.(ii):-  the complainants sought direction to the opposite parties to complete the construction of the flat within a specified period and to deliver possession of the finished flat along with other amenities. The complainants are entitled for the said relief, as it was a genuine purchase of the flat. In another relief, the complainants are seeking direction to pay compensation of Rs.1,86,400/- for the delay in completion of the construction of the apartment at Rs.5/- per sq.ft. per month from 01.06.2013 to April 2017 i.e. for 3 years 10 months, which can be calculated as follows. The extent of the flat is 1165 sq.ft i.e., 1165 x 5 = 5825 per month, and if it is calculated for 3 years 10 months i.e. for 46 months, it comes to 5825 x 46 = 2,67,950. This amount is to be paid by the opposite parties within one month from the date of receipt of copy of the order. Another relief is that the opposite parties are to be directed to pay Rs.13,00,000/- towards interest paid on private borrowals. In this regard, we have to state that the complainants have failed to prove the alleged private borrowals and payment of interest thereon. Therefore, this request cannot be considered. However, there is deficiency in service on the part of the opposite parties, due to which the complainants suffered mental agony, for which the opposite parties are liable to pay compensation at 10% of the amount paid by the complainants towards total consideration i.e. 10% out of Rs.13,13,918/-, which comes to Rs.1,31,391/-, shall be paid by the opposite parties with interest at 9% p.a. from the date of complaint till realization, and the opposite parties are also liable to pay costs as well. Thus the complainants are entitled to the reliefs discussed supra. Accordingly, this point is answered.

            10.  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 and the opposite parties have violated the terms and conditions of Ex.A2. Therefore, the opposite parties are liable to pay compensation for deficiency in service and also liable to pay compensation at Rs.5/- per sq.ft. per month after the grace period, till handing over the possession of the apartment as agreed under Ex.A2 and also costs of the complaint, and complaint therefore 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.402 in F4 floor in Block-F 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.2,67,950/- (Rupees two lakhs sixty seven thousand nine hundred and fifty only) towards compensation for the delay in completing the construction as agreed in Clause-3 of Ex.A2 dt:22.11.2011 @ 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.1,31,391/- (Rupees one lakh thirty one thousand three hundred and ninety one 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.2,67,950/- 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: P. Anitha (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: 26.07.2010.
	Original Agreement of Sale, filed by complainants. Dt: 21.11.2011.
	Office copy of Regd. Legal Notice with postal receipts. Dt: 24.03.2016.
	Email given by the opposite parties (Notarized attested copy).                         Dt: 23.11.2013.
	Email given by the opposite parties (Notarized attested copy).                         Dt: 24.05.2014.
	Payment request letter of the opposite parties (Notarized attested copy). Dt: 19.10.2015.
	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.