Andhra Pradesh

Chittoor-II at triputi

CC/28/2016

V.Babu Reddy, S/o V.Ramachandra Reddy - 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.28/2016

 

 

Between

 

 

V. Babu Reddy,

S/o. V.Ramachandra Reddy,

D.No.16-64, V.V.kandriga Village,

Nagalapuram,

Chittoor District.                                                                                          … Complainant.

 

 

 

 

 

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 Limted,

            Represented by its Authorised Signatory,

            S.Satish,

            S/o. S.Ramamurthy,

            Holding 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 Mandal,

            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 complainant against the opposite parties 1 to 4 for the following reliefs 1) to direct the opposite parties to complete the construction work of flat No.701 in F7 floor in Block-E in Phase-II, in Marg Vishwashakthi Venture, Kotramangalam village accounts, Renigunta Mandal and deliver possession of the same with all amenities agreed upon to the complainant and also execute registered sale deed in favour of the complainant 2) to direct the opposite parties to pay Rs.2,38,260/- 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 complaint with interest at 24% p.a., till handing over the finished apartment, 3) to direct the opposite parties to pay a sum of Rs.15,00,000/- towards the interest paid on private borrowals and for physical and mental strain caused to the complainant and his family members and for the deficiency in service on the part of the opposite parties with interest at 24% p.a. from the date of complaint till the date of handing-over 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 complainant booked flat No.701 in F7 floor in Block-E (Block No.304) in Phase-II in Marg Vishwashakthi Venture, launched by the opposite parties in Kotramangalam village, Renigunta Mandal, Tirupati, on 04.08.2010 by paying Rs.50,000/- as advance. The opposite parties confirmed the booking of the flat by its letter dt:05.08.2010. The cost of the flat at the time of booking was Rs.25,41,156/-, and the same is mentioned in the booking form, this cost includes 3BHK flat, covered 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 Play Area, Gym and various other usual amenities. The payment for the flat is to be released stage wise construction as per Annexure - A1 and A2 of the sale-cum-construction agreement dt:10.03.2012. The complainant so far paid a sum of Rs.16,80,313/- on various occasions and the opposite parties have issued receipts for the payments. The account statement and receipts issued by the opposite parties are herewith filed.

            3.  At the time of agreement, the opposite parties have promised to handover the finished apartment by January 2013 with a grace period of 4 months. Till date the complainant has paid 66% of the total cost of the flat. The complainant did not get possession of the flat so far. At present, the construction work has come to a standstill position. The complainant borrowed monies from private lenders and paying interest in huge amount. Due to inordinate delay, in handing over the possession of the finished flat by the opposite parties, resulting financial loss to the complainant. That the opposite parties also further agreed that they will pay compensation at Rs.5/- per sq.ft. per month after the grace period of 4 months, in case of delay occurred in completing the construction and handing over the possession of the flat, but the opposite parties failed either to complete the construction work, handing over the possession of the flat or also to pay the agreed compensation amount of Rs.5/- per sq.ft. per month. The opposite parties have pressurized the complainant to make payment in excess than the actual payment schedule agreed upon earlier to complete the construction work. Believing their words, the complainant has made payment exceeding the amount specified in the payment schedule. Even then the opposite parties failed to comply with the terms and conditions of the sale-cum-construction agreement and postponing the issue on some pretext or the other, because of which the complainant and his family members suffered mental agony. There is gross negligence and deficiency in service on the part of the opposite parties. 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.1649/- 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 complainant has 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 complainant has filed evidence affidavit as P.W.1 and got marked Exs.A1 to A8. One T.Ram Mohan filed evidence affidavit as R.W.1 and reported no documents on their behalf. Both 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 complainant is entitled for the reliefs as prayed for?                        

            (iii)  To what relief?

            7. Point No.(i):-  to answer this point, the complainant specifically contending that he has purchased flat No.701 in 7^th floor in Block-E (Block No.304)  in Phase-II of Marg Vishwashakthi Venture, launched by the opposite parties on 04.08.2010 under booking form Ex.A1 dt:04.08.2010 by paying a sum of Rs.50,000/- towards advance amount. The opposite parties also issued confirmation letter dt:05.08.2010 itself. Later the complainant and the opposite parties have entered into a sale-cum-construction agreement dt:10.03.2012, as per which the opposite parties have promised to deliver finished apartment by January 2013 with a grace period of           4 months under Ex.A3. The complainant has paid a sum of Rs.16,80,313/- as per Ex.A4 Account Statement issued by the opposite parties and also the receipt bearing No.2418 dt:21.06.2013 issued by the opposite parties as shown in Ex.A5. Though the complainant in support of his case relied on Exs.A1 to A5 and further contending that the opposite parties inspite of their promises made under Ex.A3 failed to complete the construction and handover the possession of the flat No.701 to the complainant. That the opposite parties have received more than Rs.16,80,313/- so far, but the construction was in standstill position admittedly.

            8.  The reasons for the delay according to the opposite parties are that the state bifurcation issue, escalation of prices of sand, bricks, raw material etc. non-availability of labour, non-sanction of approvals by the State Government / Statutory Bodies concerned and also non-functioning of Sub Registrar Office at Tirupati, and due to heavy rainfall in Tirupati, they could not complete the construction. Infact the state bifurcation issue was concluded in the month of June 2014 itself. Thereafter more than 2^1/2 years  have been elapsed but still there is no progress in construction of the flats. The reasons for delay are flimsy and unsustainable. 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. – Their Lordships held: “CP Act 1986 – Housing – Booking of Residential flat – Non-delivery of possession – Refund of amount sought – Deficiency in Service – Delay in completion of construction on account of alleged agitation by farmers could not be sustained by the opposite party – No evidence of having invited tenders for engagement of contractors / sub-contractors with adequate manpower for executing the work at the site of the project ….. opposite party shall refund entire amount of Rs.3,43,18,690/- paid to it by the complainants – Compensation in the form of simple interest @ 10% p.a. awarded. Litigation costs of Rs.10,000/- is awarded”.  The opposite parties further agreed that unless the remaining amounts are paid by the purchasers in respect of their respective flats, it is not possible to complete the construction. In this regard, we have to state that so far more than 66% of the total cost of the flat was collected by the opposite parties, but without showing the progress. It seems that the opposite parties want to collect the remaining amounts of the sale consideration from the purchasers. This contention of the opposite parties is nothing but violation of payment schedule under Annexure – A1 and A2 in Ex.A3 sale-cum-construction agreement. The payment should be made as per stage wise construction, but the construction was kept in standstill position after raising some skeleton construction, which was exposed to sun and rain admittedly. Therefore, there is no justification in demanding the remaining sale consideration from the purchasers. Non-availability of sand, non-availability of labour, non-approvals by the statutory bodies etc. are the headache of the opposite parties. On that ground, the opposite parties could not escape from their liability and they could not blame the purchasers. The opposite parties have to secure the labour, sand, bricks, raw material themselves irrespective of escalation of prices and see that construction should be completed within the stipulated period and handover the flat to the complainant along with other amenities agreed upon. It is prima facie appears that the opposite parties have not only failed to complete the construction of the flat but also failed to pay the compensation amount at Rs.5/- per sq.ft. per month as agreed under Ex.A3 to the complainant, despite inordinate delay. Therefore, it is apparent on record that there is gross negligence and deficiency in service on the part of the opposite parties. Thus in view of the above, we are of the opinion that the complainant has established that there is negligence and deficiency in service on the part of the opposite parties. Accordingly this point is answered.

            9.  Point No.(ii):-   in order to answer this point, the reliefs sought for by the complainant are, to direct the opposite parties to complete the construction of the flat No.701, F7 floor, Block-E, in Phase-II in Marg Vishwashakthi Venture, which was purchased by the complainant, and deliver possession of the same and also to execute registered sale deed, so far as this relief is concerned there should not be any hesitation allowing this relief. Another relief is to direct the opposite parties to pay a sum of Rs.2,38,260/- 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 complaint till handover the possession of the flat with interest at 24% p.a. This relief is also admitted relief in Ex.A3 in Clause-3. Therefore, the complainant is also entitled for the said relief. For this relief the calculation is as follows – according to Ex.A1 booking form, the total extent of the flat is 1444 sq.ft. i.e. 1444 x 5 = 7220/- per month, for 3 years 10 months (46 months) i.e. from 01.06.2013 to April 2017, it comes to 7220 x 46 = 3,32,120/- is to be paid by the opposite parties for the agreed delay compensation amount. Thus the complainant is also entitled for the delay compensation of Rs.3,32,120/-. So far as another relief is concerned i.e. to direct the opposite parties to pay Rs.15,00,000/- towards interest paid on private borrowals, physical strain and mental agony etc. cannot be allowed in Toto, as the complainant failed to establish the alleged private borrowals i.e. how much they have borrowed, from whom they have borrowed etc. therefore, this aspect cannot be considered. However, the complainant is entitled to compensation for deficiency in service on the part of the opposite parties and for mental agony suffered, for this purpose we are of the opinion that if 10% of the amount already paid by the complainant is awarded, it will meet the ends of justice. The total cost of the flat is Rs.25,41,156/-, out of which the complainant has paid so far a sum of Rs.16,80,313/-, 10% of the amount paid comes to Rs.1,68,031/-, this amount should be paid by the opposite parties with interest at 9% p.a. from the date of complaint till the date of delivery of possession of the flat as compensation for deficiency in service on the part of the opposite parties and for mental agony caused to the complainant. The complainant is also entitled for the costs of the complaint.    

            10.  Point No.(iii):-  in view of our discussion on points 1 and 2, we are of the opinion that the complainant has established that there is deficiency in service on the part of the opposite parties, that the complainant is also entitled for the reliefs discussed supra 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.701 in F7 floor in Block-E (Block No.304) 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 complainant 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 complainant in the Forum. (b)  that the opposite parties 1 to 4 are directed jointly and severally to pay a sum of Rs.3,32,120/- (Rupees three lakhs thirty two thousand and one hundred and twenty only) towards compensation for the delay in completing the construction as agreed in Clause-3 of Ex.A3 dt:10.03.2012 @ 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.1,68,031/- (Rupees one lakh sixty eight thousand and thirty one only) being 10% of the amount paid by the complainant out of the sale consideration towards deficiency in service and for mental agony caused to the complainant 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.3,32,120/- 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: V. Babu Reddy (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: 05.08.2010.
	Allotment Confirmation Letter issued by Opposite Parties (Notarized attested copy). Dt: 05.08.2010.
	Original Agreement of Sale, filed by complainants. Dt: 08.02.2012.
	Account Statement showing payments made by Complainant (Notarized attested copy).
	Receipt No.2418 issued by the opposite parties. Dt: 21.06.2013. (Notarized attested copy).
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 24.03.2016.
	Email given by the opposite parties (Notarized Attested copy). Dt: 14.10.2015.
	Calculation  sheet memo filed by the Complainant .

 

 

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.