Tamil Nadu

South Chennai

260/2005

Kumudha gopalan and 2 others - Complainant(s)

Versus

M/s Supriya Engineers and contractors (p) Ltd and - Opp.Party(s)

S.Natarajan

03 Nov 2015

ORDER

                                                                        Date of Filing :   04.05. 2005

                                                                        Date of Order :   03.11.2015.

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

                 DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.260/2005

              TUESDAY THIS  3^rd  DAY OF NOVEMBER  2015     

 

1.  Mrs. Kumudha Gopalan,

W/o. Late R.S.Gopalan.

2. Mr.G.Raj Kumar,

3. Dr.G.Raghavan

2 and 3 are sons of Late R.S.Gopalan,

All are residing at New No.6, Old No.19,

Srinivasamurthy Avenue,

Sringarammal Maligai,

Off Lattice Bridge Road,

Adyar,

Chennai 600 020.                                          ..Complainants

 

                                      ..Vs..

 

1. M/s. Supriya Engineers and

Contractors (P) Ltd.,

Rep. by Mr. Ramanathan,

Having its Administrative Office,

At 29, Eldams Road,

Teynampeet,

Chennai 600 018.

 

 

2. Sri. N. Ramanathan,

S/o. Late K. Narayana Sastri,

Director of Respondent-1,

Residing at 8, Arunachalapuram

2^nd Street,

Adyar, Chennai 600 020.

 

3. Smt. Usha Ramanathan,

W/o. Sri. N. Ramanathan,

Director of Respondent 1,

Residing at 8, Arunachalapuram,

2^nd Street, Adyar,

Chennai 600 020.                                    ..Opposite parties.  

 

For the Complainant                 :   M/s. S. Natarajan & others.  

 

For the Opposite parties            :   M/s. Nandani 

 

        This complaint is being filed by the complainant u/s 12 of the C.P. Act 1986 for a direction to the opposite party to complete the complaint mentioned construction and also to pay a sum of Rs.5,00,000/- as compensation and also to pay a sum of Rs.6500/- towards  cost of this complaint  to the complainant.

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

         

1.The case of the complainant is briefly as follows:-

The complainants stated that they are the owners of the property situated at No.6, First Cross Road, Karpagam Gardens, Adyar, Chennai, that the property mentioned in the compliant belongs to R.S.Gopalan, the 1^st complainant husband, and 2 & 3 complainants father was offered to 1^st opposite party for joint development  during the life time of the said R.S.Gopalan who entered into Memorandum of understanding dated 22.9.1999.  As per the said agreement mutually agreed between the said R.S.Gopalan and the 1^st opposite party company represented by the 2^nd opposite party that in the said property 50% of the amount offered to the 3^rd party the sale proceeds from the prospective buyer of the said three flats are to be received by the 1^st opposite party’s company and the 1^st opposite party company is also agreed to pay a sum of Rs.15,00,000/- to the land owner i.e. R.S.Gopalan and the 1^st opposite party company is to allot three flats to the land owner without claiming any further amount from the land owner except by getting a proceeds of three flats from the prospective buyers and the above said payment of Rs.15,00,000/- to be paid by the 1^st opposite party company to the land owner.  According to the complainant for the construction of six flats in the said complaint mentioned land the 1^st opposite party company has obtained approval building plan from the CMDA authorities, dated 29.5.2002.     Further the complainant also stated that as mentioned in the Memorandum of agreement the land owner R.S.Gopalan also executed a sale deed to the prospective purchasers of flats as nominated by the 1^st opposite party company represented by the 2^nd opposite party.  

2.     As per the memorandum of agreement dated 22.9.1999, it was agreed by the 1^st opposite party represented by the 2^nd opposite party to handover the possession of three flats i.e. two flats in the 1^st floor and one flat in the 3^rd floor in the proposed construction by eighteen months from the date of handing over of the vacant possession of the property or from the date of building sanctioned by CMDA whichever is later.  The vacant possession of land was handed over by the land owner to the 1^st opposite party company as per letter, dated 20.7.2000.  The CMDA’s plan permit was obtained dated 29.5.2002.   The Chennai Corporation’s building permit dated 7.10.2002.  Therefore as per the Memorandum of understanding entered between the 1^st opposite party and the land owner, the handing over of flats proposed to be built for land owner will be atleast within 18 months from the date of Chennai Corporation permit dated 7.10.2002 the date of handing over the possession would be 6.4.2004 the proper period before which the constructed three flats meant for land owner / complainant would have been handed over on or before 6.4.2004.   According to the complainant the non delivery of the said flats by the opposite parties is deficiency of service which caused mental agony and hardship to the complainants.  Having deprived of his land the complainant’s husband at his old age was faced with ignominy of residing in a rented  accommodation with all the inconveniences.  The builders would also not pay the rents in time.   The opposite parties defaulted in payment of rents after January 2004.   Therefore the opposite parties have committed deficiency of service.  Hence the complaint.      

Written version of   opposite parties are  as follows:-

3.     It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.  The first opposite party which is a private limited company have been defunct, due to resignation of one of the director and the present director the 2^nd opposite party could not run the company as a sole director which is against law.   The 3^rd opposite party is the wife of the 2^nd opposite party and is no way connected in the transaction relating to the complaint.   The terms agreed in the memorandum of understanding executed on 22.9.1999 has not been acted in full by the owners of the property resulted in stoppage of the construction.   The third party owners of the flat having found the first opposite party company could not proceed further with the progress of construction  due to non compliance of terms agreed in the memorandum of construction by the owner of  the property who offered for development after detailed discussions between them have decided to proceed with the construction on their own using their funds and manpower without the assistance of the first opposite party company and started the progress of the construction of their respective flats from out of their own funds.   

4.     In addition to the above the complainants were offered three flats of flat area 1300 sq. ft. each, in addition to the same 200 sq ft. additional area of each flat for which it was agreed by the complainant that the cost towards the same shall be borne by them which they failed to pay till this date.   It is correct that the first opposite party has agreed to provide accommodation till the flat is made ready and the rent for the accommodation was agreed at Rs.8000/- p.m. by the first opposite party.   Even though MOU was entered into and the owner of the property on 22.9.1999 agreed to handover possession immediately but the owner of the property had handed over actual vacant possession of the property only on 18.9.2000.  Even though the owner of the property was offered a rental house from 20.6.2000, the owner of the property has signed the demolition papers only on 18.9.2000 after handing over vacant possession.   It was agreed by the first opposite party represented by the second opposite party to hand over  possession by 18 months from the date of handing over of the vacant possession of the property or from the date of building sanction by CMDA whichever is later. The order was delayed due to defect in title thereafter with a great difficulty the first opposite party had obtained the sanction and proceeded with the construction as agreed.   The submission of the complainant with respect to progress of construction is totally false.    The petition being devoid of merits and suppression of material facts of order of interim injunction passed, is prayed to be vacated and the petition be dismissed and the affected parties are not the party to the proceedings, further the complainant have no right or claim over the said third party purchaser as they are the owners of the undivided share of land and they are completing the construction of their respective flats at their own cost.  Hence there is no deficiency of service on the part of the opposite parties and the complaint is  liable to be dismissed.

5.   Complainants have filed their  Proof affidavit and  Ex.A1 to Ex.A7 were marked on the side of the complainant.   Opposite parties have filed their proof affidavit and Ex.B1 to Ex.B12 were marked on the side of the opposite parties and also Ex.C1 series filed.  

6.         The points that arise for consideration are as follows:-

1. Whether there is any deficiency in service on the part of the opposite parties ?

 

2. To what relief the complainant is entitled to?  

7.      POINTS 1 & 2 :

        Perused the complaint  filed by the complainants, written version filed by the  opposite parties, proof affidavit filed by the complainant and the  opposite parties and  Ex.A1 to Ex.A7  filed on the side of the complainant and Ex.B1 to Ex.B12 filed on the side of the opposite parties and also Ex.C1 series filed  and considered both side arguments.

8.     There is no dispute between the parties that the property situated at No.6, First Cross Road, Karpagam Gardens, Adyar, Chennai  mentioned in the compliant  belongs to R.S.Gopalan, the 1^st complainant husband, and 2 & 3 complainants father was offered to 1^st opposite party for joint development  during the life time of the said R.S.Gopalan  who entered into Memorandum of understanding dated 22.9.1999 i.e. Ex.B1 = Ex.A2.  As per the said agreement mutually agreed between the said R.S.Gopalan and the 1^st opposite party company represented by the 2^nd opposite party that in the said property 50% of the amount offered to the 3^rd party the sale proceeds from the prospective buyer of the said three flats are to be received by the 1^st opposite party’s company and the 1^st opposite party company is also agreed to pay a sum of Rs.15,00,000/- to the land owner i.e. R.S.Gopalan and the 1^st opposite party company is to allot three flats to the land owner without claiming any further amount from the land owner except by getting a proceeds of three flats from the prospective buyers and the above said payment of Rs.15,00,000/- to be paid by the 1^st opposite party company to the land owner.  It is also not disputed that for the construction of six flats in the said complaint mentioned land the 1^st opposite party company has obtained approval building plan from the CMDA authorities, dated 29.5.2002 i.e. filed as Ex.A5.  The said land owner and the 1^st opposite party company have also entered the construction agreement dated 16.2.2000 by mentioning the specification of flats going to be constructed to be allotted to the land owner the same is filed as Ex.A3.  Further as mentioned in the Memorandum of agreement the land owner R.S.Gopalan also executed a sale deed to the prospective purchasers of flats as nominated by the 1^st opposite party company represented by the 2^nd opposite party as per Ex.B3 to Ex.B5.  For the 1/7 of 3600 sq ft. common undivided share of the said land in each document to each purchasers and there is no dispute as mentioned in the Memorandum of agreement on the event of executing the above said sale deed to the prospective purchasers the additional value of Rs.15,000/- agreed to be paid by the 1^st opposite party company to the land owner has been paid and received by the land owner.  

9.     It is also not disputed that as per the memorandum of agreement dated 22.9.1999 i.e. Ex.A2 = Ex.B1 it was agreed by the 1^st opposite party represented by the 2^nd opposite party to handover the possession of three flats i.e. two flats in the 1^st floor and one flat in the 3^rd floor in the proposed construction by eighteen months from the date of handing over of the vacant possession of the property or from the date of building sanctioned by CMDA whichever is later.  The vacant possession of land was handed over by the land owner to the 1^st opposite party company as per letter Ex.B6, dated 20.7.2000.  The CMDA’s plan permit was obtained dated 29.5.2002 as per Ex.B9.   The Chennai Corporation’s building permit dated 7.10.2002  was filed as Ex.B10.  Therefore according to the above said condition mentioned in the Memorandum of understanding entered between the 1^st opposite party and the land owner.   The handing over of flats proposed to be built for land owner will be atleast within 18 months from the date of Chennai Corporation permit dated 7.10.2002.  The date of handing over the possession would be 6.4.2004.   The proper period before which the constructed three flats meant for land owner / complainant would have been handed over on or before 6.4.2004.  However as per the both side case, the flats agreed to be handed over by  the opposite party to the complainant / land owner have not been handed over till this date.  

10.    According to the complainants the non delivery of the said flats by the opposite parties is deficiency of service.   Whereas the opposite parties have resisted the said contention by saying that due to non co-operation of the complainants i.e. though the land owner R.S.Gopalan during his life time has executed the three sale deed to the prospective purchaser i.e. Ex.B3 to Ex.B5 by which 1/7 of the common undivided land were executed in each sale deed totaling 3/7 which comes to 1542.7 sq fts of the common share of the land only, against agreed common share of land to be given to the promoter /1^st opposite party company to sell away to the prospective purchaser 1800 sq ft i.e. 50% of the common area of the land.  Despite of the demand, the complainant have not come forwards to executive the sale deed in favour of the 1^st opposite party company or his nominee for the remaining extent i.e. 257.2 sq ft of common share in the land.  The 1^st opposite party further stated that due to the above said refusal for execution of sale deed by the complainant for the said remaining common share in the property and also due to financial crisis happened by the 1^st opposite party company, the 1^st opposite party though started the construction out of the fund received from the prospective purchasers of the flats could not complete the construction of the flats.  

11.    On perusal of Ex.B3 to Ex.B5 the land owner R.S.Gopalan during his life time have sold a common undivided share of land through the said sale deeds it reveals that each sale deed the B-Schedule of the property of the said sale deed i.e. 1300 /9100 (1/7) of 3600 sq fts undivided share of land are to be sold.  According to the said three sale deed the total extent of 3/7 of 3600 sq ft i.e. 1542.78 sq ft. undivided share of land appear as sold.   As per Memorandum of agreement Ex.A2 = Ex.B1 50% (1800 sq ft) of the common undivided share of land has to be given to promoter / 1^st opposite party company.  Therefore according to the opposite parties contention the balance of 1800 – 1542.78 = 257.2 sq ft. of undivided share of land remained to be executed infavour of  2^nd opposite party or its nominee as per the Memorandum of agreement  is acceptable.   Though the opposite parties have raised this contention in their written version as well as proof affidavit the complainants have not given any explanation or answer the said contention of the opposite parties in their complaint as well as proof affidavit.   Therefore as contended by the opposite parties the complainants are still remained by not executing the sale deed for 257.2 sq ft. of common undivided share in the land to the opposite parties or their nominees is acceptable.  

12.    The another reason stated by the opposite parties that due to financial crisis  of the 1^st opposite party company they are not able to complete the construction work, as such for the construction works of the flats the delay was caused though it is acceptable for which the complainants are not responsible for the same.   But as per the terms and conditions of the agreement entered between the complainants / land owner and the 1^st opposite party represented by 2^nd opposite party the opposite party is liable to complete the construction within 18 months from the date of getting corporation building permission dated 7.10.2002 i.e. on or before 6.4.2004, for non completion of handing over the possession of construction of three flats meant for complainants on the part of opposite parties is amount to deficiency of service for which the refusal of execution of sale deed for the possession of common undivided share of land for extent of 257.2 sq ft. may not be valid reason. 

13.    There is no dispute that the opposite parties has agreed to provide accommodation till the flats of the owner is made ready and the rate for the accommodation was agreed at the rate of Rs.8,000/- p.m to be paid by the 1^st opposite party.   Accordingly the opposite parties also provided rental house to the complainant / the land owner from 20.6.2000 and by paying Rs.8,000/- p.m. at the beginning after that the 1^st opposite party has paid Rs.12,500/- for rental accommodation to the complainant from the month of January 2002 to December 2002 which is not been disputed by the complainant.   Therefore it is admitted the case of the opposite parties that from January 2004 the opposite party has not paid any rental charges to the complainant till this date.  According to the complainant, the opposite parties have not handed over the possession of the flat to the complainant for their residence.  The opposite parties are jointly and severally liable to pay rent for residence of the complainant accordingly.  The complainant had claimed a sum of Rs.12,500/- p.m. from January 2004  to till the date of handing over the said flats to them by the opposite parties in the complaint, it is also justifiable on the facts and circumstances of the case. 

14.    Therefore we are of the considered view that the main reason for non completion of construction work of the three flats is due to financial crisis happened / faced by the 1^st opposite party company for which the complainants cannot be responsible.   However as per the terms and conditions of the agreement the opposite parties ought to have completed the construction of the said three flats for the complainant and handed over to them within 6.4.2004 but they have not done so which amounts to deficiency of service on the part of the opposite parties.  The one of the reason stated for the non completion of flats that the complainants have not come forward to execute the sale deed for the possession of common undivided share of land of extent of 257.2  sq ft. as agreed by them will not be a sole reason is not acceptable.     As per the commissioner report, engineer report and the photographs filed as Ex.C1 series it proves that the meager work of construction of the said building with six flats have been completed and there were some meager  construction work remained to be completed.  It is also pertinent to note that the prospective purchasers of the flat were already handed over to them and due to the dispute closing of main gate they have also filed Civil suit in O.S.No.5267/2010 before the City Civil court and the same is pending.  As per the commissioner report and the photos filed thereon, evidenced that the said construction of the three flats proposed to be handed over to the complainants were already completed mostly with the meager construction works to be completed during the year 2005 itself.

15.      Further the complainant have contended that the 3^rd opposite party is the one of the Director of the 1^st opposite party company.  Whereas the opposite parties has raised objection that she is only the wife of 2^nd opposite party and nothing to do with the 1^st opposite party company.  As such the 3^rd opposite party has been impleaded in this complaint as an unnecessary party.  However if the said 3^rd opposite party is not a director of the 1^st opposite party company the opposite party can very well prove the same by producing necessary document such as list of the name of directors of the 1^st opposite party company, but they have not filed such document in this proceedings.   Therefore as contended by the complainant, the 3^rd opposite party being the one of the director of the 1^st opposite party company may not be considered to be unnecessary party to this complaint.

16.    Therefore as discussed above we are of the considered view that as per the agreement Ex.A2=Ex.B1 as a part of consideration for construction of three flats and to hand over the same to the complainants they agreed to give 50% of the common undivided share of land to the promoter i.e. opposite parties, having executed sale deed by R.S.Gopalan to prospective purchaser of flats i.e. Ex.B3 to Ex.B5.    They conveyed only sale deed for total extent of 1542.8 sq. ft of common undivided land out of the said 50% of land.  The balance of 257.2 sq. ft of common undivided share of land has to be conveyed by the complainant to the opposite parties or their nominees as agreed in the said agreement.   Therefore the complainants are liable to execute the sale deed in favour of the opposite parties or to their nominees for the extent of 257.2 sq ft. of common undivided share of the said land.   As per the agreement, the opposite parties have to complete the construction of three flats as agreed by them under the agreement Ex.B2 = Ex.A1 and the construction agreement and with their specification and to hand over the same to the complainants and also to pay a sum of Rs.12,500/- p.m. as rental reimbursement to the complainant from January 2004 to till the date of handing over the flat to the complainant for their residence.   Though the complainants have claimed Rs.5,00,000/- as compensation in their complaint which appears to be exorbitant by considering the facts and circumstances of the case.    We are of the considered view that the opposite parties are jointly and severally liable to pay a sum of Rs.2,00,000/- as  just and reasonable compensation to the complainants and accordingly the points 1 & 2 are answered in favour of the complainants.

        In the result, the complaint is partly allowed.  The  complainants are to execute a sale deed in favour of the 1^st opposite party company for 257.2 sq ft. of common undivided share of the complaint mentioned land.  Further the opposite parties are jointly and severally directed to complete the construction works of the three flats meant for complainants and to hand over the same to the complainants,   and also to pay a sum of Rs.12,500/- p.m. (Rupees twelve thousand and five hundred only) from January’2004 to till the date of handing over the above said flats to the complainants, and also to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) as compensation and also to pay a sum of Rs.5,000/- (Rupees five thousand only) as litigation charges to the complainants within three months from the date of this order failing which the opposite parties are directed to pay interest at the rate of 9% p.a. for the above said compensation and also to pay a sum of Rs.30,000/- p.m. as an additional compensation from the date of this order to till the date of handing over the possession of the said three flats to the complainants.    

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 3^th    day of November   2015.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents :

Ex.A1- 22.9.1999 – Copy Power of Attorney.

Ex.A2- 22.9.1999 – Copy of Memorandum of Understanding.

Ex.A3- 16.2.2000 – Copy of construction Agreement.

Ex.A4- 27.3.2000  - Copy of Memorandum of understanding.

Ex.A5- 29.5.2002  - Copy of Planning Permit issued by the CMDA.

Ex.A6- 7.10.2002  - Construction permit issued by the Corporation of Madras.

Ex.A7- 18.1.2003 -  Copy of Certificate of Death.

Ex.A8- 24.12.2003 – Copy of Certificate of Encumbrance on Property.

Ex.A9-          -    -  Copy of  letter issued by the Police Department.

Opposite party’s side  documents:

Ex.B1- 22.9.1999  - Copy of MOU.

Ex.B2- 22.9.1999  - Copy of second MOU.

 

Ex.B3- 30.3.2000  - Copy of Sale deed in favour in favour of Mr.R.Pagavathewara &

                              Mrs. Pushpa Rani for 1/7^th share.

Ex.B4- 30.3.2000  - Copy of sale deed in favour of Smt.Kanchan Ramathanan &

                              Mr.R.Anantha Subramanian for 1/7^th Share.  

 

Ex.B5- 24.4.2000  - Copy of Sale deed in favour of Mr.Sreenivasan Anand 1/7^th share.

 

Ex.B6- 20.7.2000  - Copy of vacant possession handing over letter.

 

Ex.B7- 7.2.2001    - Copy of Demolition Permit from Chennai Corporation.

 

Ex.B8- 10.7.2001  - Copy of CMDA’s letter retuning the plans unapproved due to

                              Variation in Road width.

 

Ex.B9- 29.5.2002  - Copy of CMDA’s Planning Permit.

 

Ex.B10- 7.10.2002 - Copy of Chennai Corporation’s Building permit.

 

Ex.B11- 12.8.2001 - Copy of letter to the Inspector Crime Branch Group 5,

                               Commissioners office.

 

Ex.B12-          - Copy of plaint copy filed in the City Civil Court in O.S.NO.5261 of

                               2010 in 1^st Assistant City Civil Court.

 

Court’s Exhibits: (C1 series )

 

1. Commissioner’s warrant.

2. Legal notice, dated 17.5.2005.

3. Returned Cover with Ack. Card.

4. Copy of letter to Advocate Commissioner dt. 25.5.2005.

5. CMP290/05 notice.

6. Copy of building plan.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT