Tamil Nadu

StateCommission

A/176/2018

T.J.RaviKumar, S/o T.N. Jyothi mani. - Complainant(s)

Versus

M/s. Amar Prakash Developers Pvt Ltd - Opp.Party(s)

PARTY IN PERSON

10 Dec 2021

ORDER

              STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                    ::      PRESIDENT                       

                Tmt. Dr. S.M. LATHA MAHESWARI                            ::      MEMBER

 

FA. No. 176/2018

  (Against the order in C.C. No.09/2015 dated:11.01.2017  on the file of the

D.C.D.R.C., Chengalpattu)

                         DATED THE 10^th  DAY OF DECEMBER 2021

 

T.J.  Ravikumnar,

S/o. Mr. T.N. Jyothi Mani,

No.49/1194, Jeevan Bima Nagar,

Anna Nagar West Extension,

Chennai – 600 101.                                                         ..Appellant/Complainant.

 

                                              -Versus-

 

M/s Amar Prakaash Developers Developers Pvt. Ltd.,

Represented by its Director Mr. A.Sudhir Kumar Surana,

Corporate Office:

No.442, G.S.T. Road,

Chromepet,

Chennai – 600 044.                                                  ..Respondent / Opposite party.

 

 

Counsel for Appellant/Complainant           : M/s. S. Riaz Ahmed (Amicus Curiae)

Counsel for Respondent / Opposite party  : M/s. Jana Naraya Vigneswaran

 

This appeal coming before us for final hearing today, on 27.11.2021 and on hearing the arguments of Appellant and on perusing the material records, this Commission made the following:-

 

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

          This appeal has been filed by the appellant/ complainant under section 15  of the Consumer Protection Act 1986 against the order of the District Consumer Disputes Redressal Commission, Chengalpattu.

1.       The factual background culminating  in to  appeal is as follows:-

          The case of the complainant was that on seeing the advertisements made by the opposite party in the news daily; Times of India dated:25.02.2012 that the Project by name Sun City Phase II is to be launched and would be completed in 10 months and possession would be given in December 2012 had booked 2 flats C1G3 and C1G4. The total cost in the estimated offer letter issued by the opposite party was Rs.16,42,071/- for C1G3 flat and Rs.16,95,614/- for C14G4 flat. The construction agreement was entered on 05.06.2012 and the payment was agreed to be made as per the schedule. The opposite party arranged for loan with HDFC Ltd. Tambaram, however the processing fee and the amount for stamp papers were paid by the complainant. The loan was sanctioned on 05.06.2012 and the sale deed for UDS for both flats were registered on 27.05.2012. The bank released the funds to the opposite party immediately and total payments amounting to Rs.14,98,865/- for C1G3 flat and Rs.15,37,085/- for C1G4 was paid by the bank on various dates and the last payment made on 20.05.2013.  But to the shock of the complainant, the construction of the flats were not completed even after 19 months from the date of last payment and 32 from the month of first payment.  However, the complaint was compelled to remit the interest for the instalments regularly.  The construction rate quoted was Rs.1850/- after allowing a discount of Rs.200 per sq. ft. The said rate of Rs.1,850/- per sq. ft. was applicable to fully furnished and fully fitted apartments as the basic rate for mere construction was only Rs.1200/- per sq. ft.  Thus, the opposite party has collected excess construction cost.  Further the referral commission was also not paid by the opposite party by the complainant.  Thus, the complaint was filed alleging deficiency in service on the part of the opposite party and directing them to hand over the flats immediately and also to direct them  to provide various reliefs such as to give account for 10,000/- to the credit of flats paid on 05.04.2012, to reimburse the pre EMI interest, to pay the excess construction cost, to pay referral commission, along with a compensation of Rs.2 lakhs for hardship and mental agony, Rs.1 lakh for deficiency in service and unethical practice and Rs.20,000/- towards litigation cost.

2.       The opposite party filed version stating that the complainant had initially booked 3 villas and cancelled the same and booked the flats C1G3 and C1G4.  Further a sum of Rs.1,50,000/- was adjusted towards purchase of flats which was paid earlier for booking the villas after deducting Rs.10,000/- towards swapping charges.  It was contented that though the complainant agreed to the payment schedule by signing the booking form  made default in payment. As the complainant wanted financial assistance loan facility from HDFC Bank was arranged by the opposite party. The amount quoted by the complainant towards payment for booking of the two flats was admitted. However the referral commission was denied. The construction cost as agreed by the opposite party was only  for the construction of the flat only and nowhere at any point of time it was admitted by the opposite party that the rate of Rs.1,850/- was for fully furnished apartments.  The opposite party cited force majeure clause found in the construction agreement for delay in construction of the apartment. The delay was alleged to be caused only due to non availability of building materials particularly sand due to restrictions imposed by the Government. Hence the delay in construction was not a purposeful delay. Thus they sought for dismissal of the complaint as it was a frivolous and vexatious one which attracts Sec.26 of the Consumer Protection Act, 986.

3.       The complainant filed proof affidavit and submitted documents marked as Ex.A1 to Ex.A16.  The opposite party filed proof affidavit and submitted documents marked as Ex.B1 to Ex.B7. The Learned District Commission after perusing the pleadings and documents filed by both parties had allowed the complaint partly directing the opposite party to hand over possession on payment of balance amount of Rs.132,286/- for C1G3 flat and Rs.1,47,654/- for C1G4 flat by the complainant within 2 months. All other reliefs claimed by the complainant were rejected. Aggrieved by the said order the present appeal was filed by the complainant over the disallowed portion of relief by the District Commission.

4.       Points for Consideration:

Whether the appeal is liable to be allowed  and whether the complainant is entitled for additional reliefs as claimed by him from the opposite party?

5.       The appellant appeared in person and sought for assistance from the Commission by appointing a Counsel to argue on his behalf. Hence the Commission appointed  an advocate as Amicus Curiae to assist the appellant.

6.       The appellant filed written arguments and submitted oral arguments contending that the submission by of the opposite party that there was default in the payment of the agreed amount by the complainant was not true.  It was submitted that whenever the due date comes the opposite party used to send notice to the appellant for payment and for any delay in making payment, the opposite party used to charge interest on the delayed payment but the flats were not completed even after 19 months from the last payment date.  In due course, the opposite party used to send a revised demand notice raising the prices with revised VAT charges and Service Tax which was not proper. Further he argued that the referral fee that the complainant is entitled to at the rate of 2% referral fee and another 2% discount from the total cost was not considered by the District Commission in proper prospective. Hence he submitted that the referral Commission for C1G3 flat comes to Rs.65,683/- and for C1G4 flat comes to Rs.67,825/-. Thus he calculated the balance due on that basis and deducted the same from the amount to be paid by the complainant towards the flats cost and arrived at Rs.77,523/- for C1G3 flat and Rs.90,704/- for C1G4 flat.   He submitted that the opposite party had committed an abnormal delay in all stages of construction and failed to keep up its promise as advertised in Times of India that the flats would be ready for delivery on 25.12.2012 and thus he could not get the possession of the flats till 2015 inspite of payment of 90% of the total amount towards the consideration.  Thus he prayed for the referral fee to be paid by the opposite party and also compensation for the delayed delivery of the flats.

7.       On consideration of the arguments put forth by the counsel who appeared on behalf of the appellant we could see that the District Commission had found that the possession of the flats were not handed over till 11.01.2017 the date when the order was pronounced.  Hence, the District Commission ought to have held that the opposite party had failed to put forth any valuable reason for the enormous delay in handing over the possession as it was promised as early as on December 2012 they would give possession of flats.  In such circumstances though the delay was huge it was an admitted fact by both the parties that certain amount was pending to be paid by the complainant.  In such circumstances, we are of the view that the complainant is entitled only for a nominal compensation of Rs.50,000/- towards each flat and in total Rs.1 lakh. The said amount will be adjusted from the balance amount to be paid by the complainant to the opposite party as determined by the District Commission.

8.       With reference to the allegation that the appellant is entitled to referral fee as alleged by him no document was submitted in support of the fact that the opposite party had agreed for the payment of referral fee @ 2% referral fee and 2% deduction in the cost of the complaint. On perusal of Ex.A11 wherein it is mentioned as “F2F is a Friend 2Friend Referral Offer where both you and your friend will get benefited. By referring your friend to us your friend will get a home from the most reliable builder in Chennai and both you and your friend will get rewarded.  You will receive 2% referral fee and your friend will receive 2% discount from the home price just because of your reference.”  Though such clause was found what is the exact referral fee was not stated by the complainant. Therefore we are unable to calculate as to what the exact 2% referral fee refers to.  In such circumstances we are of the view that the finding by the District Commission with regard to the referral fee is proper and requires no interference.

9.       With regard to the contention that the balance payment towards the cost of the flats to be made by the appellant it was contented that out of the total sale cost for C1G3 flat i.e., Rs.16,42,071/- , Rs.14,98,865/- was paid and the balance amount comes to Rs.1,43,206/-. With regard to the flats C1G4 the total sale cost was Rs.16,95,614/- and amount paid was Rs.15,37,085/- hence the balance comes to Rs.1,58,529/- .When the matter stood such the amount to be paid by the complainant as arrived by the District Commission after deducting the referral fee as admitted by the opposite party themselves i.e., Rs.1,36,286/- for C1G3 flat and Rs.1,47,654/- for C1G4 flat is proper and requires no interference.  As the complainant had not paid the entire sale amount, he is not entitled for any compensation for mental agony and hardship.  All other findings of the Learned District Commission is hereby confirmed. This point is answered accordingly.

          In the result, we allow the appeal partly holding that the appellant is entitled for Rs.1,00,000/- compensation towards delay in handing over. We allow the appeal with cost of  Rs.10,000/-.

 

 

S.M.LATHAMAHESWARI                                                                           R.SUBBIAH

         MEMBER                                                                                             PRESIDENT