Andhra Pradesh

Chittoor-II at triputi

CC/43/2016

S.Krishnamurthy, S/o. Late K.Subramanyam - 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.43/2016

Between

S. Krishnamurthy, S/o. Late K. Subramanyam,

Hindu, aged 40 years, residing at

Flat No. 22/1, Sahithi Residency, Telecom Colony,

Oteru Road, Srinivasapuram, Tirupati.                                                … 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 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 and deliver the possession along with all amenities agreed upon to him and to pay a sum of Rs.1,92,555/- towards delay compensation from 01.06.2013 to 31.03.2016 at Rs.5/- per sq.ft., per month along with interest @ 24% p.a. from the date of the complaint till the date of handing over the possession of the finished apartment, and to pay a sum of Rs.15,00,000/- towards interest paid to private borrowals and also mental agony and deficiency in service with further interest @ 24% p.a. from the date of the complaint till the date of the handing over the finished apartment and to pay Rs.10,000/- towards costs of the petition.

         2.The brief facts of the case are:  The complainant booked a flat, bearing No.306 in F3 floor in Block ‘F’ (Block No.202) in Phase-II 2BHK with an extent of 1167sq.ft.,     F-Stilt car parking of the opposite parties venture i.e. Marg Vishwashakthi township consisting of apartments viz., 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  of opposite parties on  03.08.2011 by paying an advance of Rs.1,00,000/- and same was confirmed by the opposite parties by letter dt:29.08.2011. The cost of the flat at the time of booking was Rs.22,24,423/- till the date of the complaint he has paid Rs.15,81,603/- towards costs of the flat on various occasions to the opposite parties and the opposite parties issued receipts for all the payments. The complainant further submits that at the time of the agreement the opposite parties have promised to hand over the finished apartment by January, 2013 with a grace period of four months. If they failed to hand over the possession even after the grace period they agreed to pay compensation of Rs.5/- per sq.ft., per month to the complainant. Hence by the date of the complaint the complainant already paid 71% of the sale consideration and even after four years of booking , the opposite parties has not finished the construction of the flat and failed to deliver the possession to the complainant. Moreover the opposite parties pressurized him to make payment in excess to the actual payment schedule agreed upon and exerted pressure to register the sale deed  for semi finished flats even the roof was not even completed. And the opposite parties register the sale deed on 19.12.2012 and stopped the construction work in the entire site from June, 2013. Even after several remainders made by the complainant the opposite parties sent mail that they will hand over the possession by December, 2014 but they postponed in handing over the possession.  The complainant further stated that he borrowed amount of Rs.15,00,000/- from private borrowers at high rate of interest for paying the cost to the opposite parties for his apartment. Hence finally the complainant got issued registered legal notice dt: 11.04.2016 to the opposite parties calling upon them to hand over the possession of the flat, but even after receipt of the same they failed to deliver the apartment. Hence he filed the 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 bundh they were unable to register the documents in favour of the customers due to non functioning of the Sub Registrar Office. The opposite parties further stated that the complainant booked the flat for Rs.1769/- per Sq.ft but, unfortunately due to increase in the price of raw materials and labour charges the cost of the construction was also increased 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.

          4.  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 that, 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 stated that the complainant unnecessarily approached  this Forum with an intention to harass and defame them in the society. Further the complainant provoked the other customers not to arrange the payment which are due by the other customers.

           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 away by the complainant followers without permission of the opposite party and creates nuisance in the work place. Hence on the above circumstances they were unable to complete the construction work with in time. The opposite parties requires to advise the complainants to co-operate 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, hence the complaint is liable to be dismissed.    

         5.  The complainant filed his evidence on affidavit and Ex:A1 to A9 were got marked and On behalf of the opposite parties one T.Ram Mohan, S/o. T.Venkataramana, authorized signatory, Marg Access , OMR Kottivakkam, chennai filed his evidence on affidavit and no documents were marked on behalf of the opposite parties. Both counsels for both the parties filed their written arguments and oral arguments were heard.

        6.  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?

         7. Point No:-(i).  There is no dispute regarding the purchase of the flat by the complainant from the opposite parties and same was admitted by the opposite parties. The main contention of the complainant is, she booked a flat bearing No.306 in F3 floor in Block-‘F’ (Block No.202) in phase-II of the opposite party’s venture on 13.08.2011 by paying an advance of Rs.1,00,000/- and in order to prove his contention he got marked Ex:A1 the booking form and same was confirmed by the opposite parties by letter dt:29.08.2011 under Ex:A2 and the cost of the flat is Rs.22,24,423/- with an extent of 1167sq.ft., and also the opposite parties executed sale-cum-construction agreement on 10.10.2011 in favour of the complainant under Ex:A3. The complainant further stated that in Ex:A3 i.e. sale-cum-construction agreement in Para13 clause (1) clearly mentioned that they will deliver the possession of the flat by June, 2013 with a grace period of four months and also they have stated that if they failed to deliver the possession with a grace period of four months from June, 2013 they will pay Rs.5/-per sq.ft., per month towards compensation for delay in deliver of the possession and the complainant further stated that by the date of the complaint he has paid Rs.15,81,603/- towards sale consideration to the opposite parties and in order to prove the payments he filed Ex:A4 the payment request letter clearly shows that the complainant paid Rs.15,81,603/- to the opposite parties towards sale consideration. And the complainant stated that even after receipt of the said amount the opposite parties failed to complete the construction work and deliver the possession to him and also without finishing the construction work, the opposite parties demanded the complainant to pay the excess amount to the actual payment schedule and exerted pressure to the complainant to register the sale deed on 29.12.2012 in favour of the complainant of semi finished flat. Hence the complainants stated that even after several requests made by him the opposite parties failed to finish the construction work and deliver the possession to him which is nothing but deficiency of service on part of the opposite parties.

         8. The opposite parties came in to appearance and filed the written version by denying the allegations made in the complaint except the sale of the flat to the complainant and also stated that due to lack of manpower and also due to Samikyandhra agitations they have not completed the construction within the stipulated time as mentioned in the agreement. The opposite parties counsel vehemently argued that their project is a heavy project hence the progress of 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 they have stated that the complaint is liable to be dismissed.

         9.  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 under Ex:A3 the construction agreement itself clearly shows that the opposite parties promised that, they will deliver the possession to the complainants by December, 2014 with a grace period of four months and same was  mentioned in Para 13 clause (1) of the said agreement, and also they have mentioned that   if they failed to deliver the possession they will pay Rs.5/- per sq.ft., as compensation to the complainant. Once they have agreed the conditions which were 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 absence of any documentary proof we cannot come to the conclusion that the opposite parties face several inconveniences for the completion of the construction work and hence it 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. The complainant established that the opposite parties committed deficiency in service in delay in delivery of possession of flat to him. Hence on those circumstances we are of the opinion that there is deficiency in service on part of the opposite parties towards the complainant.

        10. Point(ii):-   As already point no.1 is discussed in favour of the complainant that there is deficiency in service on part of the opposite parties towards the complainant and as per Ex:A4 the payment request letter clearly shows that the complainant paid Rs.15,81,603/- towards sale consideration in the year 2011 itself. But as per Ex:A3 in sale-cum-construction agreement dt:10.10.2011 in Para 13 clause(1)  shows that if the opposite parties failed to deliver the possession  by June, 2013 with a grace period of four months they will pay Rs.5/- per sq.ft., per month towards compensation to the complainant. Hence we are opinion that the complainant is entitled of compensation for delay in deliver of possession i.e. 1167sq.ft XRs.5=5835/- (per month), hence as the opposite parties failed to deliver the possession even after the grace period of four months. Hence he is entitled for compensation of Rs.5/- per sq.ft., from 01.06.2013 to 01.04.2017 = 46 months i.e. Rs.5835X46months=Rs.2,68,410/- as delay compensation. Hence the complainant is entitled for the compensation of Rs.2,68,410/- towards delay in delivery of possession to the complainant. The complainant further prayed that they have taken loan Rs.15,00,000/- from the private borrowals and they are paying interest to the money lenders for the said amount. Hence it is justifiable to grant 10% of the paid amount i.e. Rs.15,81,603/-towards compensation for mental agony and deficiency in service. Hence the complainant is entitled of Rs.1,58,160/-(10% of paid amount Rs.15,81,603/-)  towards compensation for mental agony and deficiency in service and also the complainant is entitled for Rs.10,000/- towards costs of the petition. Hence this point is answered accordingly.

        11.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.2,68,410/- (Rupees two lakhs sixty eight thousand four hundred and ten 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 01.06.2013 to April, 2017, b) the opposite parties are further directed to pay a sum of Rs.1,58,160/- (Rupees one lakh fifty eight thousand one hundred and sixty only) towards compensation for mental agony and deficiency in service on part of the opposite parties which is 10% of the amount Rs.15,81,603/- 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 and to pay Rs.2,000/-  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.2,68,410/- (rupees two lakhs sixty eight thousand four hundred and ten 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: S.Krishnamurthy (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: 03.08.2011.
	Allotment confirmation letter issued by opposite parties (Notarized Copy). Dt: 29.08.2011.
	Sale-cum-construction agreement in favour of 1st complainant (Notarized Copy). Dt: 07.10.2011.
	Payment request letter issued by the opposite parties (Notarized Copy). Dt: 03.10.2013.
	Registered sale deed to the complainant (Mee Seva Copy). Dt: 17.12.2012.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 11.04.2016.
	Email to the opposite parties (Notarized Attested copy).  Dt: 23.11.2013.
	Email of the opposite parties (Notarized Attested copy).  Dt: 24.05.2014.
	Calculation Sheet memo filed on behalf of the Complainants.

 

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.