Andhra Pradesh

Chittoor-II at triputi

CC/34/2016

V.Suman, S/o V.Janardhan Reddy, rep. by his Special Power Of Attorney Holder V.Janardhan Reddy, S/o. V.Ramachandra Reddy, aged 62 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: 19.04.2016

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.34/2016

 

 

Between

 

 

V. Suman,

S/o. V.Janardhan Reddy,

Hindu, aged 32 years,

Resident of Block 201B, # 05-220, Punggol Field,

Singapore.

 

Rep. by his Special Power of Attorney Holder,

V.Janardhan Reddy,

S/o. V.Ramachandra Reddy,

Hindu, aged 62 years,

Resident at VV Kandriga Village,

Beerakuppam Post,

Nagalapuram Mandal,

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,

            G.Soma Sekhara Reddy,

            S/o. G.Raghava Reddy,

            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 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.508 in F5 floor in Block-E in Phase-II, in Marg Vishwashakthi Venture, Kotramangalam village accounts, Renigunta Mandal and deliver possession of the same to the complainant 2) to direct the opposite parties to pay Rs.20,685/- towards delay compensation from 01.01.2016 to 31.03.2016  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.11,00,000/- towards the interest paid on private borrowals and for physical and mental strain caused to the complainant 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 purchased flat No.508 in F5 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 03.09.2014 by paying Rs.1,00,000/- as advance. The opposite parties confirmed the booking of the flat by their letter dt:12.09.2014. The total cost of the flat is Rs.33,72,056/-. The cost includes 3BHK flat with car parking No.56 along with other 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 opposite parties promised to handover the possession of the flat by December 2015, but failed to complete the same. The opposite parties also promised to pay compensation at Rs.5/- per sq.ft. per month, in case of delay in completion of the construction, but the opposite parties failed to comply either of the conditions set-out in the sale-cum-construction agreement and also prolonging the matter on some pretext or the other. So far the construction is not completed and compensation is also not paid for the delay as agreed. Thus, there is deficiency in service on the part of the opposite parties. Hence the complaint.  

3.  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.2,264/- 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.      

            4.  One V.Janardhan Reddy, Special Power of Attorney for complainant, has filed chief affidavit as P.W.1 and got marked Exs.A1 to A11. 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.               

            5.  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?

            6. Point No.(i):-  At the first instance, we have to state that there is no such terms and conditions as to, by which date or month or year the opposite parties have to complete the construction of the flat No.508 purchased by the complainant either in Ex.A2 sale-cum-construction agreement dt:14.10.2014 or in Ex.A4 sale deed dt:20.11.2014. In this regard, Exs.A6 and A7 letters issued by the opposite parties specifies the date of handing over. According to Ex.A6 the possession should be handover by June 2015 so far as E-Block is concerned. Ex.A7 dt:12.06.2015 shows that the possession should be handed-over by October 2016. But the opposite parties failed to stick on their promise made under Exs.A6 and A7. Ex.A4 sale deed dt:20.11.2014 establishes that a semi finished flat No.508 in 5^th floor in Block-E in Marg Vishwashakthi was handed-over to the complainant. In Ex.A4 also the opposite parties wisely not made any reference that they will complete the construction work of the semi-finished flat and no date or year was mentioned as to when they would complete the construction of the semi finished flat and file the possession delivery receipt. For the reasons best known, the complainant also did not made any reference to Ex.A4, but sought the relief to direct the opposite parties to deliver possession of the flat No.508, as if no possession was taken so far. Similarly, the complainant further mentioned in the complaint, in his evidence affidavit and also in the written arguments that the opposite parties agreed to pay compensation at Rs.5/- per sq.ft. per month, in case of any delay in completion of the construction work of flat No.508, but no such averments were found place in Ex.A2 copy of sale-cum-construction agreement  or in Ex.A4 copy of sale deed. So, when there is no such specific condition to pay compensation for the delay, the complainant is not entitled for such relief. In view of Exs.A6 and A7, the opposite parties have to deliver possession of the flat by October 2016. This admission made by the opposite parties is contrary to the recitals of sale deed under Ex.A4, which shows that the possession of the flat was already delivered by 20.11.2014 itself, when the flat is a semi finished one. So, the statement of the opposite parties appears to be self-contrary, for the reasons best known to the opposite parties, they could not refer to all these things in their written version, evidence affidavit or in the written arguments. However, by virtue of Exs.A6 and A7 letters issued by the opposite parties, it appears that the opposite parties have undertaken to complete the construction of flat No.508 in Block-E and deliver possession of the same by October 2016, but failed to do so. It is not the case of the complainant that there are any conditions or any terms between the complainant and the opposite parties in Ex.A4 copy of the sale deed dt:20.11.2014, that the work of the semi finished flat will be completed within a specified time. So, the case of both parties are not clear and it appears that both parties are suppressing the facts. In view of the documents under Ex.A6 and Ex.A7, which are subsequent to Ex.A4, it can be held that opposite parties have failed to comply with their promise to complete the construction of the flat No.508 in Block-E in Phase-II in Marg Vishwashakthi Venture by October 2016. Since the opposite parties failed to complete the construction within the stipulated time (twice worked out), the complainants cannot be compelled to wait for an uncertain period till the opposite parties are able to complete the construction of the flat. We are relying on a decision reported in 11(2017) CPJ 508 (NC) Ranjeet Bhatia Vs. Super Tech Limited and Anr. Thus, there is deficiency in service on the part of the opposite parties. Accordingly this point is answered.

            7.  Point No.(ii):-  to answer this point it is necessary to refer the reliefs sought for. The first relief is to issue a direction to the opposite parties to complete the construction of flat No.508 in 5^th floor in Block-E in Phase-II of Marg Vishwashakthi Venture, while the opposite parties admitted in Exs.A6 and A7 that the construction of the E-Block will be completed by October 2016. They shall be given a direction to complete the construction of flat No.508 (semi finished flat) in 5^th floor in Block-E in Phase-II of Marg Vishwashakthi Venture, within 3 months from the date of receipt of copy of this order, as per the promise in Ex.A7, since possession was already delivered under Ex.A4, and collect the balance amount if any from the complainant. Another relief is to direct the opposite parties to pay Rs.5/- per sq.ft. per month from 01.01.2016 to 31.03.2016 and for further period from the date of complaint along with interest at 24% p.a. This relief cannot be granted as there was no such terms and conditions either in Ex.A2 sale-cum-construction agreement or Ex.A4 sale deed. Hence this relief is negatived. Another relief is to direct the opposite parties to pay a sum of Rs.11,00,000/- towards interest on private borrowals, physical strain and mental agony etc. In this regard, we have to state that the complainant failed to establish the alleged private borrowals but another important aspect in this regard is, as per complaint at para.6, the complainant has paid so far a sum of Rs.24,71,040/-, in proof of this payment no document is filed. According to Ex.A4 a sum of Rs.13,79,000/- only paid by 14.11.2014 and another receipt dt:20.11.2014 shows that a sum of Rs.82,790/- was paid. Totally the complainant paid Rs.14,61,790/- only but not Rs.24,71,040/- as contended. The complainant relied on Ex.A3 payment request letter in proof of the payment made by him, but according to Ex.A3 amount received by the opposite parties is only Rs.2,00,000/- and by completion of 7^th floor slab the balance amount due is Rs.3,43,370/-, in total balance due was shown as Rs.22,00,530/-. Thus the statement shown by the complainant is not in support of his case. Therefore, the complainant is entitled to compensation for deficiency in service on the part of the opposite parties and for mental agony caused to the complainant at 10% of the amount already paid, which comes to Rs.1,46,179/- with interest at 9% p.a. from the date of complaint, till the date of completion of the work in semi finished flat No.508. Accordingly this point is answered.

            8.  Point No.(iii):-  in view of our discussion on points 1 and 2, we are of the opinion that the complainant is entitled to the relief of completion of construction of semi finished flat No.508 within 3 months from the date of receipt of this order and also entitled to the compensation of Rs.1,46,179/- with interest at 9% p.a. from the date of complaint, till the date of realization, and also Rs.2,000/- towards costs of the litigation, and 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 complete the construction of semi finished flat No.508 in F5 floor in Block-E (Block No.304) in Phase-II of Marg Vishwashakthi Venture, purchased by the complainant, launched by the opposite parties within three (3) months from the date of receipt of copy of the order, and receive the balance sale consideration, if any, is due from the complainant, (b)  that the opposite parties 1 to 4 are jointly and severally directed to pay Rs.1,46,179/- (Rupees one lakh forty six thousand one hundred and seventy nine only) being 10% of the amount paid by the complainant towards deficiency in service on the part of the opposite parties 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 possession of the apartment / finished flat, (c) that the opposite parties 1 to 4 are also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint.      

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. Janardhan 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: -03.09.2014.
	Sale-cum-construction agreement in favour of 1st complainant (Notarized Copy). Dt: 10.03.2014.
	Payment request letter showing payments made by complainant (Notarized Copy). Dt: 15.09.2014.
	Registered sale deed to the complainant (Mee Seva Copy). Dt: 20.11.2014.
	Office copy of Regd. Legal Notice with postal receipts and acknowledgements. Dt: 01.04.2016.
	Letter to the opposite parties (Notarized Copy) Dt: 24.05.2014.
	Letter to the opposite parties (Notarized Copy) Dt: 12.06.2015.
	Loan account statement of HDFC Bank (Notarized Copy).
	Receipt No.2605 issued by opposite parties (Notarized Copy) Dt: 11.10.2014.
	Calculation Sheet memo filed on behalf of the Complainant.
	Special power attorney of the complainant. Dt: 29.03.2016.

 

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.