Andhra Pradesh

Chittoor-II at triputi

CC/27/2016

S.Mahendiran, S/o P.Subramani, - 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: 06.04.2016

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.27/2016

 

 

Between

 

 

1.         S.Mahendiran,

            S/o. P.Subramani,

 

2.         P.Sasikala,

            W/o. S.Mahendiran,

 

Both are residents of

D.No.49/5, II Floor, 5^th Main,

Wilson Garden,

Adugodi Post,

Bangalore – 30.                                                                    … 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.Ranganathan, S/o. G.Santhanam,

            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 Bypass Road,

            Tirupati – 517 501.                                                              …  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.807 in F8 floor in Block-F 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.58,650/- towards delay compensation for the period from 01.05.2015 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. from the date of complaint till handing over the finished apartment, 3) to direct the opposite parties to pay Rs.9,00,000/- towards the interest paid on private borrowals, physical strain and mental agony etc. 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.807 in F8 floor in Block-F (Block No.202) in Phase-II of Marg Vishwashakthi Venture launched by the opposite parties on 29.11.2011 by paying Rs.1,00,000/- advance amount and the allotment of the flat was confirmed by the opposite parties. Originally the opposite parties allotted another flat, but later on for the reasons best known, they allotted the present flat. The amount paid for the earlier flat was adjusted for the present flat. The cost of the flat was mentioned in the sale agreement as Rs.24,92,422/-, this cost includes 2BHK 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’s Play Area, Gym and various other usual amenities. The payment for the flat is to be made as mentioned in Annexure – A1 and A2 of the sale-cum-construction agreement dt:27.02.2014. That the complainants till date paid Rs.18,04,417/- (72% of the total cost) on various occasions as shown under payment request of the opposite parties.

            3.  That at the time of agreement, the opposite parties agreed to handover the finished flat / apartment by December 2014 with a grace period of 4 months. The complainants have borrowed amounts from private persons and paying interest. The construction work came to standstill position. The opposite parties have agreed to pay Rs.5/- per sq.ft. per month, in the event of delay in completion of the construction, but failed to complete the construction within the stipulated time and also avoiding to pay  compensation for the delay in construction as agreed in the agreement dt:27.02.2014. Except the skeleton work, which was exposed to sun and rain, there is no progress in the construction. Consequently, the structural soundness of the apartment is very much affected due to non-plastering of bricks, pillars, beams and slab portion and the rods are in the stage of corrosion. That the opposite parties have collected huge amounts and failed to complete the construction of the flat as agreed. There is deficiency in service on the part of the opposite parties. They are liable to pay compensation for deficiency in service and for the delay in completion of the construction work as agreed. 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.2014/- 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 A8. 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):-  to answer this point, the complainants relied on Ex.A1 sale-cum-construction agreement, Ex.A2 payment request letter dt:19.02.2014 and other documents. As far as Ex.A1 is concerned, the opposite parties sold away flat No.807 to the complainants for a sum of Rs.24,92,422/- and collected a sum of Rs.18,04,417/- The opposite parties also promised in Ex.A1 to deliver possession of the finished flat to the complainants by December 2014 with a grace period of 4 months. But so far neither the construction work is completed nor the compensation amount at Rs.5/- per sq.ft. per month was paid though agreed in Ex.A1. That apart it is apparent on record  and admitted by the opposite parties that the skeleton work alone is completed and no further progress in the construction of the apartment since long time and the so called skeleton work also exposed to sun and rain years together, consequently, its structural soundness was very much affected. The rods are in the stage of corrosion because of non-plastering of bricks, pillars, beams and slab portion. The above allegations were not denied by the opposite parties. It was also admitted by the opposite parties that they have collected so far a sum of Rs.18,04,417/- and failed to complete the construction work and also failed to deliver possession of the flat, and execute the registered sale deed in favour of the complainants. In view of the admissions made by the opposite parties, we have to state that the complainants cannot be compelled to wait for an uncertain period till the opposite parties are able to complete the construction of flat at their whims and fancies. In this regard, we are relying on a decision reported in 11(2017) CPJ 508 (NC) Ranjeet Bhatia Vs. Super Tech Limited and Anr. Under the above circumstances, 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.

            8.  Point No.(ii):- the relief sought for the by the complainants is to direct the opposite parties to complete the construction work and deliver possession of the finished apartment to the complainants and also to execute registered sale deed in favour of the complainants. In this regard, we have to state that the relief sought for by the complainants appears to be quite reasonable and the opposite parties are bound to complete the work and handover the possession of the flat to the complainants. Another relief sought for by the complainants is that the opposite parties have to pay compensation at Rs.5/- per sq.ft. per month for the delay in construction of the apartment from 01.05.2015 till handing over the possession of the flat as agreed under Ex.A1 sale-cum-construction agreement dt:27.02.2014. Similarly, the complainants also seeking relief of compensation for deficiency in service and for causing mental agony to the complainants. Another relief claimed by the complainants that they have borrowed huge amounts from private persons and paying interest thereon is not established by the complainants. Therefore, this request is not considered. The complainant also entitled to the costs of the complaint. Under the above circumstances, we are of the opinion that the opposite parties are liable to pay compensation for deficiency in service and for mental agony caused to the complainant. For this purpose, awarding 10% of the amount paid by the complainants will meet the ends of justice. The total cost of the apartment is Rs.24,92,422/-. The amount so far paid by the complainants is Rs.18,04,417/-, 10% of the amount is Rs.1,80,441/-, this amount should be paid with interest at 9% p.a. from the date of complaint till realization, likewise, the opposite parties bound to pay compensation at Rs.5/- per sq.ft. per month. The total extent of the flat is 1173 sq.ft. i.e. 1173 x 5 = 5865 per month, for 1 year 11 months it will be 5865 x 23 = 1,34,895/-. So, the opposite parties have to pay Rs.1,34,895/- towards compensation for the delay in construction of the apartment. The complainants also entitled for the costs of the complaint. Accordingly, this point is answered.

            9.  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. That the opposite parties liable to pay compensation for the deficiency in service at 10% on the amount paid so far, that the opposite parties also liable to pay compensation for the delay in construction of the apartment at Rs.5/- per sq.ft. per month and also liable to pay costs of the complaint, and the 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.807 in F8 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.1,34,895/- (Rupees one lakh thirty four thousand eight hundred and ninety five only) towards compensation for the delay in completing the construction as agreed in Clause-3 of Ex.A1 dt:27.02.2014 @ Rs.5/- per sq.ft per month from 01.05.2015 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.1,80,441/- (Rupees one lakh eighty thousand four hundred and forty 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.1,34,895/- 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: S. Mahendiran (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
	Original Agreement of Sale, filed by complainants. Dt: 31.08.2013.
	Payment request letter showing payments made by complainants (Notarized attested copy). Dt: 19.02.2014.
	Office copy of Regd. Legal Notice with postal receipts. Dt: 28.03.2016.
	Receipt (No:2607) for Rs.2,00,000 issued by opposite parties (Notarized attested copy). Dt: 21.10.2014.
	Receipt (No:2623) for Rs.75,000 issued by opposite parties (Notarized attested copy). Dt: 25.11.2014.
	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.

 

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.