Date of Filing : 24.10.2019
Date of Disposal : 24.11.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR.B.A., B.L., ....MEMBER-I
THIRU.P.MURUGAN, M.COM.,ICWA (Inter),B.L., ......MEMBER-II
CC. No.42/2019
THIS THRUSDAY, THE 24th DAY OF NOVEMBER 2022
Mr.C.V.Saravanan,
S/o. Mr.C. Venugopal,
No.20, F3, Sai Castle Apartments,
Rajasekaran Street,
Vijayalakshmipuram,
Ambattur, Chennai 600 053. ……Complainant.
//Vs//
Mrs. V.Nalini, The Proprietor,
M/s.N.S.P.Construction,
No.28, Morarji Street,
Vijayalakshmipuram,
Ambattur, Chennai 600 053. …..opposite party.
Counsel for the complainant : Mr.A.R.Poovannan, Advocate.
Counsel for the opposite party : exparte
This complaint is coming before us on various dates and finally on 17.11.2022 in the presence of Mr.A.R.Poovannan Advocate, counsel for the complainant and the opposite party was set exparte for non appearance on 27.08.2022 and upon perusing the documents and evidences of the complainant this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. S.M. LATHA MAHESWARI, PRESIDENT
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging that the claimed excessive amount fraudulently and had committed deficiency in service in the construction along with a prayer to pay a sum of Rs.2,00,000/- for the damage in the building by not constructing the building as per the agreement, to pay a sum of Rs.2,00,000/- for the incomplete work in the building, to pay a sum of Rs.5,00,000/- towards compensation for the mental agony, strain and hardship caused to the complainant and to pay a sum of Rs.10,000/- towards cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
It was submitted that the opposite party made an advertisement for their ongoing project at Oragadam Village, Amabttur Taluk and on seeing the advertisement the complainant contacted the opposite party. On the assurance of good quality construction the complainant intended for purchase of a flat and the complainant entered into an agreement with opposite party. The complainant submits that the opposite party insisted the complainant to pay the land value first and after registering the undivided share to pay the periodical payment for the construction and accordingly the complainant paid a sum of Rs.4,56,940/- to the opposite party. The opposite party as per the GPA of Mrs.T.D.Vasantha and others sold the undivided share an extent of 310 square feet out of 2411 square feet by a Sale Deed dated 28.06.2017 vide document No.7752/2017 on the file of SRO, Ambattur. The construction agreement dated 28.06.2017 was entered for flat No.F3 in first floor measuring an extent of 570 square feet and the building was named as SAI CASTLE. Cost of construction was fixed at Rs.27,43,060/-. The opposite party arranged for the loan from CANARA BANK to the tune of Rs.24,00,000/-. Two lakhs was made to be spent more than the agreed amount towards carpentry work and other works of painting, water tap, interior furnishing works etc., altogether the complainant was paid a total sum of Rs.32,00,000/- towards flat. However, the opposite party did not complete the construction within 6 months from the date of commencement by June 2017 and grace period of 3 month also got lapsed. When the complainant inspected the property it was half way and thus the opposite party handed over the flat to the complainant without completion. The opposite party required a blank cheque for security purpose to get loan from CAFN (A unit of CANARA BANK) at the time of Sale Deed dated 28.06.2017 and now had misused the cheque. Thus the complainant had no liability to pay any amount as the opposite party himself has issued a cheque for Rs.40,000/- towards excess payment made by the complainant. The same cheque was not honoured due to insufficient funds and finally the opposite party deposited the amount in the complainant’s account. Thus the complainant was not liable to pay any amount to the opposite party. Further the following defects were found in the construction;
ceiling-water leakage,
Dust in all apartments – common area and steps - still works has been going on etc.,
No lift.
Unapproved and unauthorized construction in 2nd floor leads to damage to buildings i.e. first floor,
un approval extension in ground floor,
The worst materials used for building construction,
The building full of air cracks etc.,
Only white wash done and some areas no white wash in several areas, cement plastering only,
No drainage connectivity given,
No metro water, sump connection,
Drainage-complainant initiated by opposite site owners,
Compound wall incomplete.
When the complainant questioned the opposite party he adamantly replied that they not in a position to complete the work and when requested for refund of excess amount they opposed stating that the construction agreement was cancelled and they had no obligation to pay anything to the complainant. The complainant was put too much financial loss by increase in the cost of the construction materials, labour and the excess interest for the bank loan along with rent for the house. Further it was submitted that the opposite party had foisted a false case by misusing the Cheque issued by the complainant before the Judicial Magistrate, Fast Track Court at Ambattur and the same is pending and the case was an absolute misuse of the Cheque and abuse of process of law. The allegations that the sale consideration was not paid before possession was handed over to the complainant was false. The complainant submits that the opposite party committed cheat, threatening and the complainant reserve his right to take appropriate criminal action. Thus alleging deficiency in service the present complaint was filed for the following reliefs;
To pay a sum of Rs.2,00,000/- for the damage in the building by not constructing the building as per the agreement,
To pay a sum of Rs.2,00,000/- for the incomplete work in the building, to pay a sum of Rs.5,00,000/- towards compensation for the mental agony, strain and hardship caused to the complainant;
To pay a sum of Rs.10,000/- towards cost of the proceedings to the complainant.
On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to A10 was submitted. Despite service of sufficient notice and providing opportunities the opposite party did not appear before this commission and hence they were called absent and set ex-parte on 27.08.2022 for non appearance and non filing of written version within the mandatory period of 45 days.
Points for considerations:
Whether the allegations as to the claim of excess of payment by opposite party and defects in the construction has been successfully proved by the complainant?
If so to what relief the complainant is entitled?
Point:1
The following documents were filed on the side of complainant in support of her contentions;
Construction agreement dated 16.06.2017 was marked as Ex.A1;
Sale Deed in the name of complainant dated 28.06.2017 was marked as Ex.A2;
Memorandum of depositing of title dated 28.06.2017 was marked as Ex.A3;
IT Certificate of complainant dated 21.07.2018 was marked as Ex.A4;
Provisional Certificate dated 06.062018 was marked as Ex.A5;
Voucher (2Nos) was marked as Ex.A6;
Legal notice by the opposite party dated 08.01.2019 was marked as Ex.A7;
Reply notice by the complainant dated 20.01.2019 was marked as Ex.A8;
Receipts for the purchase by the complainant was marked as Ex.A9;
Photographs with CD was marked as Ex.A10;
The complainant had filed written arguments with endorsement that the same may be treated as oral argument. Hence this commission considered the written arguments and other materials produced to decide the issue on merits.
The crux of the written arguments filed by the complainant was that he purchased a flat from the opposite party and had paid totally a sum of Rs.32,00,000/- the opposite party did not complete the construction within the grace period and had also committed deficiency in service in the construction as mentioned below;
ceiling-water leakage,
Dust in all apartments – common area and steps - still works has been going on etc.,
No lift.
Unapproved and unauthorized construction in 2nd floor leads to damage to buildings i.e. first floor,
un approval extension in ground floor,
Worst materials used for building construction,
Building full of air cracks etc.,
Only white wash done and some areas no white wash in several areas, cement plastering only,
No drainage connectivity given,
No metro water, sump connection,
Drainage-complainant initiated by opposite site owners,
Compound wall incomplete.
It was further submitted that the opposite party cheated the complainant which caused great mental strain and hardship. Further it was also found that due to the delay, the complainant and his family were put to financial loss by increase in the cost of the construction materials and labour and excess interest claimed by the bank along with rent for the house. The complainant submits that the opposite party foisted a false case by misusing the cheque issued by him before the Judicial Magistrate, Fast Track Court at Ambattur and the same is pending as the complainant never issued the cheque dated 24.12.2018 to the opposite party. Thus by way of written arguments the complainant prayed for the complaint to be allowed.
We perused the documents filed by the complainant. We could see that the agreement for the construction dated 16.06.2017 registered vide document No.7757/2017 on the file of SRO, Ambattur was filed as Ex.A1 wherein it has been mentioned that the cost of construction of the flat was arrived and agreed at Rs.27,43,060/-including the departmental charges, taxes, etc., It was also found that Rs. 1,00,000/- was received as an advance by cheque at the time of signing the agreement and that the cost agreed was exclusive of 3 phase electricity service connection, Metro Water Supply and Drainage Connections. The sale deed for UDS dated 27.06.2017 was executed by the opposite party in favour of the complainant has been marked as Ex.A2 wherein it was found that the sale consideration of Rs.4,56,940/- was paid by the complainant/purchaser to the opposite party/vendors. The Memorandum of Deposit of Title Deeds made in favour of CAN FIN HOMES LIMITED for the loan availed by the complainant towards purchase of the flat was filed as Ex.A3, wherein it has been found that Rs.24,00,000/- was sanctioned in favour of the complainant. The IT Certificate of the complainant with respect to the loan availed by the complainant was marked as Ex.A4 and the provisional certificate for sanctioning of the loan was marked as Ex.A5. In both the documents it was found that the loan sanctioning amount was Rs.24,00,000/-and the amount disbursed was Rs.22,00,000/-. The receipt issued in favour of the complainant was for receipt of Rs.2,00,000/- by the opposite party was marked as Ex.A6. The Ex.A7 filed by the complainant shows that the opposite party has issued a legal notice to the complainant stating that in the purchase of the flat the complainant was yet to pay the amount of Rs.9,90,000/- and the cheque got dishonored with endorsement “EXCEED ARRANGEMENT” and in this notice the opposite party demanded the complainant to pay the said amount. Ex.A8 is the notice issued by the complainant to the opposite party denying the payment of Rs.9,90,000/-. Ex.A9 filed by the complainant shows that he has purchased various materials for the flat and certain photograph shows the construction which was marked as Ex.A10.
The sum and substance of the complaint allegations is that the opposite party had received excess amount from the complainant than the agreed amount. However, it is seen that as per Ex.A7 the opposite party had sent a legal notice demanding Rs.9,90,000/- from the complainant towards the balance construction cost. It is even admitted by the complainant that a cheque case was filed by the opposite party in the Judicial Magistrate, Fast Track Court at Ambattur and the same is pending. While things are being so, there was no evidence filed by the complainant to prove that the opposite party had received excess payment and to the least there was no pleading to that fact. Hence this commission is of the view that the said allegation was not proved. Further with respect to the allegation of defects in the construction, the complainant did not taken any steps to appoint an Advocate Commissioner to inspect the property along with a qualified Civil Engineer and to get the expert report with regard to the defects in the construction made by the opposite party. It is an established principle that mere pleadings in the absence of any supportive evidence could not be accepted in proof of the allegation raised by the complainant. Mere photographs filed showing some construction is not acceptable. In the said facts and circumstances we are of the view that both the allegations raised by the complainant with regard to excess payment and defects in the construction were not proved by him successfully by any admissible evidence. Thus we answer the point accordingly holding that the complainant had failed to prove the allegations of deficiency in service on the part of the opposite party.
Point No.2:
As we have already held above that the complainant had failed to prove any deficiency in service on the part of the opposite party he is not entitled any reliefs mentioned in the complaint from the opposite party. Thus we answer the point accordingly.
In the result, the complaint is dismissed. No order to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 24th day of November 2022.
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MEMBER-II MEMBER I PRESIDENT
List of document filed by the complainant:-
Ex.A1 16.06.2017 Construction Agreement. Xerox
Ex.A2 28.06.2017 Sale Deed in the name of the complainant. Xerox
Ex.A3 28.06.2017 Memorandum of depositing of title. Xerox
Ex.A4 21.07.2018 IT Certificate of complainant. Xerox
Ex.A5 06.06.2018 Provisional Certificate. Xerox
Ex.A6 ............... Vouchers (2Nos). Xerox
Ex.A7 08.01.2019 Legal notice by the opposite party. Xerox
Ex.A8 20.01.2019 Reply notice by the complainant. Xerox
Ex.A9 .............. Receipt for the purchase by the complainant. Xerox
Ex.A10 ............... Photographs original
List of documents filed by the opposite party;
Nil
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MEMBER-II MEMBER I PRESIDENT
