Andhra Pradesh

Chittoor-II at triputi

CC/34/2013

Gorantla Thirupal S/o. Late Obaiah - Complainant(s)

Versus

M/S Marg Limited represented by its Chief Executive Officer - Opp.Party(s)

D.Jaya Chandra

04 Sep 2014

ORDER

Filing Date:25.07.2013

Order Date: 04.09.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

PRESENT: Sri.M.Anand, President (FAC),

        Smt. T.Anitha, Member

 

THURSDAY THE FOURTH DAY OF SEPTEMBER, TWO THOUSAND AND FOURTEEN

 

C.C.No.34/2013

 

Between

 

Gorantla Thirupal,

S/o. late. Obaiah,

Retired Government Servant,

Flat No.305, Indraprastha Apartments,

Vikaspuri,

A.G.Colony Road,

Erragadda,

Hyderabad – 38.                                                                               … Complainant

 

 

And

 

1.         M/s. Marg Limited,

            Rep. by its Chief Executive Officer,

            Regd. Office at 4/318, Rajiv Gandhi Road,

            (Old Mahabalipuram Road),

            Kottivakkam,

            Chennai – 600 041.

 

2.         M/s. Marg Limited,

            Rep. by its Senior Manager,

            Panneer Kaluva Road,

            Kotramangalam village,

            Renigunta By-pass Road,

Tirupati.

 

3.         M/s. Yuva Constructions Pvt. Ltd. (YUVA)

Rep. by its authorized signatory,

H.No.18-1-36, Temple Line,

Mango Market,

Kedareswarapet,

Vijayawada – 520 003.

 

4.         M/s. Marg Business Park Pvt. Ltd (MBPL).

Rep. by its authorized signatory,

Marg Axis,

4/318, Rajiv Gandhi Salai,

Kottivakkam,

Chennai – 600 041.                                                              …  Opposite parties.

 

            This complaint coming on before us for final hearing on 07.08.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.D.Jayachandra, counsel for the complainant, and Sri.N.Manohar, counsel for the opposite party, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. M.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

 

            This complaint is filed against the opposite parties under Section-12 of C.P.Act 1986, for the deficiency of service on the part of the opposite parties 1 to 4.  

2. The brief averments in the complaint are as follows:-  The complainant purchased a flat No.502 in ‘A’ block, an extent of 1490 sq.ft. and paid Rs.50,000/- on 06.09.2009 towards advance. Total sale consideration was fixed at Rs.20,32,360/-. The complainant and the opposite party entered into an agreement on 16.09.2009 and subsequently the complainant paid a total amount of Rs.20,96,515/- and subsequently the opposite party executed a registered sale deed for semi finished flat No.502 in the building known as Vishwashakthi – Phase.I. As per Condition.3 of the agreement, the opposite party did not deliver the possession of the flat No.502 by the end of June 2011 or including the grace period of 4 months. It is therefore the complainant is entitled compensation of Rs.6,820/- per month at the rate of Rs.5/- per sq.ft. per month with effect from 01.07.2011. To his surprise, the complainant received a letter dt:05.12.2012 from the opposite parties in which the opposite party demanded the complainant to clear balance of Rs.1,67,597/-. The complainant got issued legal notice on 12.12.2012 to opposite parties 1 and 2 stating that the complainant has to pay only Rs.70,405/-. The opposite party got issued reply dt:07.01.2013 stating that the delay in deliver the possession has been occurred only due to unforeseen reasons, which were beyond the scope of the developer. After the notice, the opposite party invented reasons for not delivering the flat of the complainant within the stipulated time as per the agreement. Due to the acts of the opposite party, the complainant was subjected to a lot of mental agony and physical strain and that there is deficiency of service on the part of the opposite party. Hence the complaint.

3.  The 1^st opposite party filed the written version admitting that the complainant purchased flat No.502 from the opposite parties and the opposite parties also executed a registered sale deed for un-divided share on their land including semi finished flat in favour of the complainant. The opposite parties further admitted the payments made by the complainant towards the flat. The opposite parties denied that flat No.502 has to be delivered by the end of June 2011 including grace period of 4 months and in case of any delay, the opposite parties is liable to pay at Rs.5/- per sq.ft. towards compensation with effect from 01.07.2011 till the date of delivery of possession. The opposite party contended that the complainant made payments beyond the due date and the complainant has to pay Rs.2,20,562/- as on 21.07.2013 towards balance amount and the opposite party also informed the same to the complainant through e-mail on 21.06.2013 but the complainant could not pay the said amount. It is further contended that the delay in delivering the possession of the flat has been occurred only due to shortage of material, labour, non-payment of amounts by the other customers and pending suit. It is further contended that instead of paying the balance amount, the complainant filed this complaint threatening the opposite party and that there is no deficiency of service on the part of the opposite parties and that the complaint is not maintainable for the reliefs as prayed for. The opposite party completed the construction of the flat as per the schedule and the complainant is liable to pay outstanding amount and so saying the opposite party prayed to dismiss the complaint with costs.

4.  Opposite parties 2 to 4 were set exparte.       

5. On behalf of the complainant P.W.1 filed affidavit on evidence and got marked Exs.A1 to A9. On behalf of the opposite parties R.W.1 filed his affidavit on evidence and no exhibits are marked. The complainant and opposite party filed their written arguments. Heard both sides.

6.  The points that arise for determination are:-

(i).  Whether there is any deficiency of service on the part of the opposite

       Parties? If so, whether the complainant is entitled for the reliefs as prayed

       for?

 (iii).  To what relief?

7. Point No.(i):- One M.Chenga Reddy, the Chief Executive of 1^st opposite party filed his affidavit on evidence as R.W.1. It is significant to note that except filing affidavit on evidence, no documents are marked on behalf of the 1^st opposite party or opposite parties. R.W.1 categorically admitted that the complainant purchased the flat No.502. The 1^st opposite party entered into an agreement Ex.A2, paid initial advance on subsequent events and total Rs.2,10,562/- and consequently the 1^st opposite party registered undivided share of the land including semi finished and common area in favour of the complainant. The evidence of R.W.1 categorically proved that the complainant purchased flat No.502 under Ex.A3 registered sale deed from 1^st opposite party for consideration. R.W.1 further admitted that there is delay in deliver the possession of the said flat to the complainant and the said delay has been occurred only due to shortage of material, labour, non-payment of amounts by other customers, bank finance and also due to pending of suit and the 1^st opposite party completed the construction as per the schedule. The evidence of R.W.1 is crystal clear that there is delay in delivery of possession of flat No.502 to the complainant and construction was also not completed as on the date of filing of the complaint and it is not clearly stated by R.W.1 when actually the construction of the said flat was completed. Admittedly, the complainant purchased a flat No.502 in the year 2009 and paid the entire consideration but the opposite party could not delivery the possession of the flat to the complainant so far. This itself is sufficient to come to the conclusion that there is deficiency of service on the part of the opposite party.

8.  According to R.W.1, there are so many reasons for not completing the construction of flat No.502 within the stipulated time given under Ex.A2 agreement. As per the condition No.13.1 of Ex.A2 agreement, it is agreed that possession of the residential apartment could be delivered by the developer to the purchaser by June 2011 including the grace period of 4 months provided the purchaser complies with the payment schedule and the obligations. As per the above said condition, possession of flat No.502 has to be delivered to the complainant on or before June 2011 including grace period of 4 months, but the opposite party could not deliver the possession of the said flat even till today.

9.  The counsel for the opposite party contended that as per Clause-13.2 of Ex.A2 agreement, the developer is not liable delays and the complainant also agreed for the said Clause-13.2 and signed on the agreement and the complainant could not claim compensation for the delay of delivery of possession of the flat. It is true, it is categorically stated in Clause-13.2 of Ex.A2 agreement that “the developer shall not be liable for delays, incompletion and construction of the apartment and development of common facilities as per Schedule-D ........ and the developer shall be entitled to extend time for delivery of possession of the apartment and the same cannot be construed as delay in handing over of the possession”. The learned counsel for the complainant contended that the opposite party never informed about the reasons for the delay in delivering the possession of the flat as narrated in the affidavit of R.W.1 even after the receipt of letters marked as Ex.A4. After the receipt of Ex.A6 legal notice dt:12.12.2012, the opposite party got issued Ex.A7 reply notice dt:07.01.2013 highlighting the Clause-13.2 in Ex.A2 agreement that the developer shall not be liable for delays as stated there under and further stated that the complainant has to pay Rs.1,67,597/- towards maintenance charges for 12 months from March 2013 to February 2014 and requested to pay the said amount and to take possession of the flat No.502 in ‘A’ block. Prior to Ex.A6 legal notice, the complainant requested the opposite party to delivery the possession of the flat through Ex.A4 letters. After receipt of Ex.A4, the opposite party never informed the complainant about the completion of flat No.502 or the stage of the construction of the said flat. After receipt of Ex.A4, the opposite party got issued Ex.A5 payment request letter dt:05.12.2012 requesting the complainant to pay the balance amount of Rs.1,71,007/- and interest of Rs.40,238/-. The said Ex.A5 is silent about the progress of construction of flat No.502. There is a specific column in Ex.A5 for progress of construction. But the said column is kept blank. In Ex.A7 reply notice dt:07.01.2013, it is simply stated that request to cooperate along with other customers and to pay the requested balance and take possession of the flat No.502 in ‘A’ block. Ex.A7 is silent when the flat No.502 is completed and whether it is ready for occupation. The learned counsel for the complainant contended that if there is any delay as per the reasons shown in Ex.A7, the same has to be informed to the complainant even before issuance of Ex.A6 legal notice and the opposite party also not filed even a scrap of paper to substantiate his contention as stated in Ex.A7 for the delay in handing-over the possession of the flat No.502 to the complainant and in the absence of such evidence, it could be said that the reasons narrated in Ex.A7 are invented afterthought after receiving Ex.A6 legal notice and that the contents in Ex.A7 could not be believed to be true and correct. It is therefore there is force in the contention of the learned counsel for complainant that if the flat No.502 has been ready for occupation as on the date of Ex.A7, the opposite party should have informed the same to the complainant even prior to the receipt of Ex.A6 legal notice and also should have informed about the reasons for the delay in completing the flat No.502. Further even after filing of the complaint, the opposite party got issued demand notice Ex.A9 to the complainant demanding to pay the balance amount but the progress of the construction column is kept blank. At this juncture, it creates a doubt that had the opposite party really completed flat No.502 as stated in Ex.A7 and if it is ready for occupation, the opposite party should have informed the same to the complainant even prior to Ex.A6 legal notice or should have mentioned atleast in Ex.A9 demand notice dt:01.10.2013. As per Ex.A2 agreement, the possession of the flat No.502 should have to be delivered by the end of June 2011 including grace period of 4 months. But the opposite party could not delivery the possession of the flat to the complainant even after filing this case. It is therefore there is delay of more than one year in delivery of possession of flat No.502 by the opposite party to the complainant. In Clause-3 payment schedule of Ex.A2 agreement, it is stated as hereunder:

“provided that in case of any delay in construction and delivery of the residential apartment caused by the developer arising out of reasons other than as saved and except under this agreement it shall be liable to pay compensation at the rate of Rs.5/- per sq.ft. per month to the purchaser and until delivery of possession, which shall be the only and exclusive remedy against the developer”.

      

In the instant case, apparently there is a delay in delivery of possession of flat No.502 to the complainant by the opposite party and that the opposite party is liable to pay compensation at the rate of Rs.5/- per sq.ft. per month to the complainant till the date of delivery of possession.

10.  The learned counsel for the opposite parties contended that the complainant made payments beyond due dates and that he has to pay interest as per the agreement, which amounts to Rs.2,20,562.90/- as on 21.07.2013. In the affidavit on evidence of R.W.1, the statement is shown in Page.2 regarding the payments made by the complainant and the actual delay occurred. On the other hand, the complainant got marked Ex.A8 receipts issued by the opposite party for the payments made by the complainant. Neither the opposite parties nor R.W.1 denied receipts marked in Ex.A8. When compared Ex.A8 receipts with the statement in Para.2 of the affidavit on evidence of R.W.1, both of them are not tallied with each other. Except the said statement of R.W.1 in Para.2 of the affidavit of R.W.1, no document is filed supporting the said statement. It is for the opposite party to file documents supporting the statement or to prove that the receipts marked in Ex.A8 were fake and not issued by the opposite party. The amount mentioned in the statement and the amount paid  by the complainant under receipts in Ex.A8 also not tallied. Under these circumstances, the receipts marked in Ex.A8 could be believed that those receipts were issued by the opposite party and the complainant paid the amount mentioned therein. If that be so, it could be said that there is no delay in payments made by the complainant towards flat No.502 and it is therefore there is no substance in the contention of the opposite party that the complainant made payments beyond the due date.

11.  The evidence on record categorically proves that the complainant purchased flat No.502 from the opposite parties in the year 2009 and paid the entire consideration but the opposite party fail to deliver the possession of the said flat till today with some untenable objections. In view of the above reasons, we are of the opinion that there is deficiency of service on the part of the opposite parties and that the opposite party caused mental agony to the complainant and that the complainant is entitled for the reliefs stated in the complaint. 

12.  Hence, this point is answered in favour of the complainant and against the opposite parties.

13.  Point No.(ii):-  In the result, the complaint is allowed directing the opposite parties to deliver the possession of the flat No.502 in ‘A’ block of Vishwa Shakthi – Phase.I at Panner Kaluva Road, Kotramangalam village, Tiruchanoor By-pass Road, Renigunta Mandal, Tirupati-3, Chittoor District, with full amenities as stated in Ex.A2 agreement and in Ex.A3 sale deed. The opposite parties further directed to pay Rs.50,000/- (Rupees fifty thousand only) towards compensation for mental agony suffered by the complainant and Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. The opposite parties are further directed to comply the order within one month from the date of this order, failing which the opposite parties are liable to pay interest at 9% p.a. on Rs.20,46,515/-, till the date of delivery of possession of flat No.502 to the complainant.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 4^th day of September, 2014.

 

      Sd/-                                                                                                                       Sd/-                

Lady Member                                                                                               President (FAC)

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

 

PW-1: G.Thirupal (Chief Affidavit Filed).

RW-1: M.Chenga Reddy (Chief affidavit Filed)

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1		Brochure issued by the opposite parties.
2		Copy of agreement.
3	17.03.2012	Photostat copy of the sale deed.
4		Registered letters sent by the petitioner to the Opposite parties.
5.	05.12.2012	Payment request letter sent by the opposite parties.
6	12.12.2012	Legal notice.
7	07.01.2013	Reply sent by the opposite parties to the legal notice of the complainant.
8		Receipts issued by the opposite parties for the payment made by the Complainant.
9		A Bunch of 17 Demand notice

 

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

- Nil -

                                                           

 

                                                                                                                                                                                                       Sd/-

President (FAC)

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

                                                Dist. Consumer Forum-II, Tirupati.  

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.