Andhra Pradesh

Chittoor-II at triputi

CC/42/2016

R.Venkata Sesha Asha Bhanu, W/o R.Syama Sundara Murali Krishna, rep. by her Special Power Of Attorney Holder K.Satyanarayana Murthy, S/o. Late K.Gopala Rao, aged 71 years - 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:-26-04-2016                                                                                                               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.42/2016

Between

R. Venkata Sesha Asha Bhanu, W/o. R. Syama Sundara,

Murali Krishna, Hindu, aged 39 years,

Resident of D.No.3-2-165/2, Sivalalitha Apartments,

Gummakonda Colony, Attapur, Hyderguda, Hyderabad.

 

Rep. by her Special Power of Attorney Holder,

K.Satyanarayana Murthy, S/o. Late K. Gopala Rao,

Hindu, aged  71 years, residing  at Flat No. 207, Sarayu

Heights, Sheela Nagar, AVA Road, Rajahmundry.                          … 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 her Special power of Attorney Holder K. Sathyanarayana Murthy, S/o.Late K. Gopala Rao,  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 of the flat bearing No.407  in F4 floor in Block’E’ in phase-II in Marg Viswasakthi venture with all amenities agreed upon and also by duly executing the registered sale conveyance deed in favour of the complainant and also by directing the opposite parties to pay a sum of Rs. 3,28.500/- towards delay compensation from 01.06.2012 to 31.03.2016 at Rs.5/- per sq.ft., per month and further period from the date of this complaint along with interest @ 24% p.a. from the date of the complaint till the date of handing over the finished apartment. And also by directing the opposite parties to pay a sum of Rs.16,00,000/- towards interest paid to the private borrowals ad also to pay further interest @ 24% p.a. from the date of the complaint till the date of handing over the finished apartment to the complainant and also Rs.10,000/- towards costs of the litigation.

        2.The brief facts of the case are:  The complainants booked a flat bearing No.407 with an extent of 1460 sq.ft in F4 floor in Block ‘E’ (Block No.304) in Phase-II in Marg Vishwashakthi Venture consisting of apartments, school, 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 with car parking  of opposite parties on 22.08.2010 by paying an advance of Rs.50,000/- and same was confirmed by the opposite parties, the cost of the flat at the time of booking was Rs.24,65,340/- and the payments of the flat is to be release stage wise construction as per Annexure A1 and A2 of the sale-cum-construction agreement dt: 14.03.2012. The complainant further submits that by the date of the complainant he has paid Rs.16,28,870  towards sale consideration on various occasions to the opposite parties and the opposite parties issued receipts for all the payments. The complainant further submits that the opposite parties promised to hand over the finished apartment by January, 2012 with a grace period of four months but they failed to hand over the possession as they promised, even after receipt of 66% of the cost of the flat. And also the complainant further stated that there is no progress in the construction work and unfinished apartment complex is exposed to sun and rain for years and that the structural soundness of the apartment complex is very much affected due to non plastering of bricks, pillars, beams and slab portion and rods are in the stage of corrosion and lost its strength.

        The complainant further stated that the opposite parties promised to hand over the possession by January, 2012  with a grace period of four months if they failed to deliver the same they will pay Rs/5/- per sq.ft., per month towards delay compensation in the delivery of the flat. Hence as the opposite parties failed to deliver the flat even after several requests made by the complainant and also after receiving Rs.16,28,870/- towards sale consideration which is nothing but deficiency in service and also stated that the opposite parties promised to register the sale deed after receipt of the 50% of the sale consideration. But in this particular case the opposite parties failed to do so even after receipt of the 66% of the sale consideration. Hence finally the complainant issued legal notice on 27.01.2016 calling upon the opposite parties but even after receipt of the said notice they failed to comply the same. But on the other hand the opposite parties issued reply notice dt:17.02.2016 with all false and frivolous allegations. Hence the complainant filed his present complaint.

         3. 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 peaceful 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 and also due to bifurcation of State of Andhra Pradesh,  Telangana and Samaikyandhra strikes and bandh they were unable to register the documents in favour of the customers due to non functioning of the Sub Registrar Office, Tirupati. 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 with three times higher than the rate of the opposite parties. Hence the complainant investments in their project definitely provide better appreciation.

          The opposite parties further submitted that the Government policy with regard to sand issued 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 fluctuations in the real estate market 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 only and same was mentioned in the sale-cum-construction agreement if any delay is caused is not beyond the control of 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 cooperated for payment of the balance as per schedule. Hence unless they have 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 in the society. Further the complainant provoked the other customers not to arrange the payment 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 in favour of nuisance in the work place. Hence on the above circumstances and they were unable to complete the construction work with in time. The opposite parties requires to advise the complainants to cooperate 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 cooperate for the progress in work peacefully. Hence they have stated that there are no latches on their part, the complaint is liable to be dismissed.    

         4. This complaint is filed by her Special Power of Attorney Holder K. Sathyanarayana, S/o. Late K. Gopala Rao on behalf of complainant filed his evidence on affidavit and got marked Ex:A1 to A9. On behalf of opposite parties one T.Ram Mohan, S/o. T.Venkataramana, authorized signatory field his evidence on affidavit and no documents were marked on behalf of the opposite parties. Both counsels ffiled their written arguments and oral arguments were heard.

        5.  Now the points for consideration are:             

             (i) Whether there is any delay 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?

         6. Point No:-(i).  There is no dispute regarding the purchase of the flat by the complainant from the opposite parties on 22.08.2010 under Ex:A1 by paying an advance of Rs.50,000/-. The said apartment consists of 1460sq.ft and the cost of the flat is Rs.24,65,340/- and also as per contention of the complainant the opposite parties executed the agreement of sale dt:14.03.2012 in favour of the complainant and also the complainant stated that due to sale consideration she has paid Rs.16,28,870/-  as per Ex:A3. And also the complainant stated that the opposite parties promised to handed over the possession by January, 2012 with a grace period of four months but till date they failed to hand over the possession to the complainant even after receipt of 66% of the sale consideration. The complainant further stated that the opposite parties have promised if they failed to deliver the possession by January, 2012 after four months of grace period they will pay Rs.5/- per sq.ft per month towards delay compensation. But in this particular case the opposite parties neither they completed the construction nor they paid any compensation to the complainant towards the delay in delivery of the possession. Hence after several reminders and mails given by the complainant to the opposite parties they failed to deliver the flat to the complainant and also there is delay in progress of the construction work and also the opposite parties promised the complainant after receipt of 50% of the sale consideration they will register the sale deed. But in this particular case they have not register the sale deed in favour of the complainant and also they have not deliver the possession as mentioned in the agreement of sale i.e. Ex:A2 which is nothing but deficiency in service on part of the opposite parties.

         7. The counsel for the opposite parties argued that they have completed the Phase-I of their project consists of 192 apartments and handed over the customers. Subsequently they have started Phase-II and the work is in progress from day to day and also due to shortage of labour and material i.e. sand and bricks the project was not completed within stipulated period due to Samaikyandhra agitations and also delay in regarding various approvals and Government Regulations. The opposite parties further stated that due to escalation of the prices of the raw material they have not completed the construction in time and they were unable to register the documents in favour of the complainant  for the non functioning of the sub registrar office in Samaikyandhra agitation. And also stated that because of lack of sand and also due to shortage of labour they have not completed the construction work and also same was communicated to the complainants and also the opposite parties stated that the complainants purchased the flat for Rs.1889 per sq.ft.,. but now the cost was increased to Rs.3200 per sq.ft., and the said difference amount was also not demanded the complainants by them. But today in the market the several promoters launched the projects almost three times higher than the price which they offered. Hence it is sure that the complainants’ investment in their project definitely provided better appreciation. The opposite parties counsel vehemently argued that their project is a heavy project hence the progress of the work was going on day to day. But due to unforeseen circumstances like heavy rain and shortage of labour the progress of work will slowdown and hence there are no latches on their part. Hence the complainants are not entitled for the compensation as prayed for and prayed that the complaint is liable to be dismissed.

         8. By perusing the record placed by  both the parties there is no dispute regarding the purchase of the flat by the complainants from the opposite parties because same was admitted by them and also Ex:A3 the construction Agreement itself clearly shows that the opposite parties promised that, they will deliver the possession to the complainants by December, 2013 with a grace period of four months and also they have mentioned in Para 13 clause (1) of the said agreement,  if they failed to deliver the possession they will pay Rs.5/- per sq.ft., once they have agreed the conditions which was incorporated in sale-cum-construction agreement they cannot go back. Hence in this particular case the opposite parties mentioned several reasons for the slowdown of the progress in the construction work. But in order to prove those contentions they have not filed any single scrap of paper to prove the same and on behalf of the opposite parties no documents were marked. Hence in the of absence any documentary proof we cannot come to the conclusion that the opposite parties face several inconvenience for the completion of the construction work  could not be accepted. The opposite parties collected amounts but they have not completed the venture as per their agreement of sale-cum-construction which is nothing but unfair trade practice and deficiency in service on part of the opposite parties. As the complainants invested the hard earned money in the opposite party’s venture in order to own the flat but which is of no use. Hence on those circumstances we are of the opinion that there is deficiency of service on part of the opposite parties towards the complainants.

        9. Point(ii):-  As per contention of the complainant she has paid Rs.16,28,870/- towards sale consideration to the opposite parties as it shows that the receipt of the flat by the date of the booking is Rs.24,65,340/- as the complainant already paid 66% of the sale consideration. But even after receipt of the same the opposite parties failed to deliver the possession. Hence as per agreement Ex:A3 they failed to deliver the possession stipulated  in the agreement. Hence the complainant is entitled of Rs.5/- per sq.ft., per month i.e. Rs.5X1460sq.ft=Rs.7300/- per month from 01.06.2012 to 30.04.2017 i.e. 58 months, Rs.7300X58months=4,23,400/- . Hence the complainant is entitled Rs.4,23,400/- towards delay compensation. But as per Ex:A3 the payment receipts shows that the complainant has paid Rs.15,79,870/-. Hence 10% interest of the above said amount is Rs.1,57,987/- towards compensation for mental agony and deficiency in service on part the opposite parties and the complainant is entitled of Rs.2,000/- towards costs of the litigation. Hence this point is answered accordingly.

      10.Point (iii):-   In view of our discussions in  points 1 and 2 we are of the opinion that the complainants has established that there is deficiency in service on part of the opposite parties towards the construction of the apartment purchased by them and deliver the possession to them. Hence they are entitled for the compensation for delay in delivery of the possession and also damages for mental agony and deficiency in service and costs of the litigation as such 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 pay an amount of Rs.4,23,400/- (Rupees four lakhs twenty three thousand four hundred 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 01.06.2012 to April, 2017, b) the opposite parties are further directed to pay a sum of Rs.1,57,987/-  (Rupees one lakh fifty seven thousand nine hundred and eighty seven only) towards compensation for mental agony and deficiency in service on part of the opposite parties which is 10% of the amount Rs.15,79,870/- 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 from the complainant and to pay Rs.2,000/- (Rupees two thousand only)towards 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.4,23,400/- (Rupees four lakhs twenty three thousand four hundred only) shall carry interest @ 9% p.a. from the date of the complaint till the date of 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: K. Sathyanarayana (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: 22.08.2010.
	Original agreement of sale filed on behalf of the complainants.
	Payment receipts (8) issued by opposite parties (Notarized attested Copy)
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 27.01.2016.
	Reply Notice.  Dt: 17.02.2016.
	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.
	Calculation Sheet memo filed on behalf of the Complainants.
	Special power of attorney (Notarized Copy). Dt: 03.04.2016.

 

 

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.