Tamil Nadu

StateCommission

CC/122/2015

G.Madurai Veeran - Complainant(s)

Versus

M/s. Annai Builders Real Estates Pvt. Ltd., Rep by its Authorized Secretary & 2 ors - Opp.Party(s)

Sreethi Law Firm

31 Jan 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

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

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

 

C.C.No.122/2015

         MONDAY, THE 31^ST DAY OF JANUARY 2022                                        

Mr. G. Madurai Veeran,

S/o. Mr. A. Gandhi,

Door No.12, II Main Road,

New Kumaran Nagar,

Sholinganallur,

Chennai – 600 119.                                                          ::                                       Complainant.

- Versus -

1. M/s. Annai Builders Real Estates Private Limited,

Represented by its Managing Director

Mr. T. Narayanan,

Alpha Centre, 4^th Floor,

Nos.150 & 151, North Usman Road,

T. Nagar,

Chennai – 600 017.

 

2. A. Sankaran,

No.2/255, Park Street,

Santhosapuram,

Chennai – 601 302.

 

3. P. Pandian,

No.91/92, Poniamman Koil Street,

Puzhuthivakkam,

Chennai - 600 091.                                                                     ::     Opposite parties.                                                                          

 

Counsel for the complainant                     :    M/s. Sreethi Law Firm

Opposite parties 1 to 3                              :   Ex-parte

 

              This complaint having come up for final hearing before us on 19.01.2022  and on hearing the arguments of the complainant through video conferencing and upon perusing the material records submitted by him, this Commission made the following:-

ORDER

TMT. Dr. S.M. LATHA MAHESWARI,   MEMBER

               This complaint has been filed by the complainant under section 17 (1) (a) (i) of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice on the part of the opposite parties along with the prayer to direct the opposite parties:-

1. To pay a sum of Rs.25,70,561/- for the loss, pain and suffering, negligence deficiency in service, transportation, cost of legal notice, telephone charges, advance paid towards purchase of flat, registration expenses for creating charge with Vijaya Bank, registration expenses for sale deed, interest paid to Vijaya Bank, Loan processing charges, legal charges for registration of MOD and sale deed, interest towards initial advance and mental agony caused to the complainant,
2. Rs.15,000/- towards the cost and expenses of proceedings.

1.         The gist of the complaint allegations is as follows;-           

The present complaint was filed against the builder who is the 1^st opposite party herein  and against the opposite parties 2 & 3 who were the Power Agents appointed by the 1^st opposite party.  The 1^st opposite party who was the absolute owner of Plot No.   1 H to an extent of 1896 sq. ft. situated at Perumbakkam Village, Tambaram Taluk, Kancheepuram District, comprised in survey No.191/1 Part had approached the complainant offering him a flat in the project namely; ‘Smart Homes’ in the property mentioned.  The complainant believing the words entered into and Promoters Agreement on 21.09.2012  for a flat to be purchased with built up area of 520 sq. ft. and 342 sq. ft. of undivided share of land.  It was agreed by the opposite parties that the flat completion  would  be over within 12 months from the date of the Construction Agreement and the total consideration for the flat was fixed at Rs.18,20,000/-.  In furtherance, the complainant paid Rs.1,00,000/- on 18.08.2012 and Rs.2,64,000/- on 21.09.2012 by cheque.  The complainant also availed housing loan from Vijaya Bank, Indira Nagar Branch, Chennai and on 29.11.2012, the said Bank released Rs.7,11,400/- to the 1^st opposite party through DD Nos.595589 and 595590. On 30.11.2012, the 1^st opposite party through the Power Agents / opposite parties 2 & 3 had executed a Sale Deed in favour of the complainant and thereby, conveyed 342 sq. ft. undivided share of land.  The opposite parties to the utter shock of the complainant did not even commence the construction and all the efforts by the complainant to approach the opposite parties went in vein. The complainant’s request for appointment of an Arbitrator to settle the dispute between them was also not answered by the opposite parties and they had never commenced the construction.   However, the complainant was made to pay the EMIs as scheduled by the Vijaya Bank with interest  at the rate of 10.55% p.a.   Thus, the complainant stated that the act of the opposite parties clearly amounted to deficiency in service and unfair trade practice as no effective steps had been taken by them to commence the construction even after receiving a substantial amount of more than 50% of the total cost of the flat value.  Thus, the present complaint was filed  for the reliefs as mentioned above.   

2.         In spite of sufficient notice, the opposite parties did not care to appear before this Commission to defend the allegations of the complainant in time but they appeared belatedly  and filed written version without any petition to condone the delay in filing the same and when the same was returned to be filed along with the Delay Condonation Petition, they never turned up and hence, they were set ex-parte on 07.09.2018 after providing sufficient opportunity for non-appearance and not filing written version. 

3.         The complainant to prove his case filed proof affidavit along with documents which were marked as Ex.A1 to Ex.A21. 

4.      The point for consideration :-

Whether the opposite parties have committed deficiency in service  and if so, to what reliefs, the complainant is entitled?

5.         Point:-

The complainant filed the following documents in proof of his contentions raised against the opposite parties:-

1. The loan application submitted by the complainant to Vijaya Bank requesting for the home loan to purchase the flat dt.15.10.2012 was marked as Ex.A1;
2. The Promoters Agreement entered between the 1^st opposite party M/s. Annai Builders Real Estates Pvt. Ltd.  and the complainant dt.21.09.2012 was marked as Ex.A2;
3. The building sketch given by the opposite parties and the Inspection Report dt.25.09.2012 was marked as Ex.A3 & Ex.A4;
4. The intimation letter by Vijaya Bank, Indra Bank, Chennai to the complainant about the sanctioning of loan amount of Rs.14,50,000/- was marked as Ex.A5;
5. The letter dt.28.11.2012 by the opposite party to the complainant requesting to pay a sum of Rs.7,11,400/- towards part payment  was marked as Ex.A6;
6. The request letter by the complainant to the Branch Manager of the Vijaya Bank  requesting to release a sum of Rs.7,11,400/- out of the loan sanctioned  amount in favour of the Annai Builders/ the 1^st opposite party dt. 29.11.2012 was marked as Ex.A7;
7. The Demand Draft along with the letter by the Vijaya Bank  dt.03.12.2012 was marked as Ex.A8 and this document was filed in proof of payment of Rs.7,11,400/- to the 1^st opposite party;
8. The list of title documents deposited with Vijaya Bank for obtaining the loan was marked as Ex.A9;
9. The Insurance Certificate issued by Bajaj Allianz in favour of the complainant with respect to the loan obtained by the complainant dt.15.06.2011 was marked as Ex.A10;
10. The Memo of Charges issued by the Chartered Accountant dt.15.11.2012 was marked as Ex.A11;
11. The Sale Deed executed by the 1^st opposite party in favour of the complainant  for the sale of 342 sq. ft of undivided share of land  dt. 30.11.2012 was marked as Ex.A12;
12. The Memorandum of Deposit executed by the complainant in favour of Vijaya Bank dt. 25.02.2013 was marked as Ex.A13;
13. The Encumbrance Certificate with respect to the property in survey No.191/1 & 191 dt.22.07.2014 was marked as Ex.A14 and this Encumbrance Certificate shows the sale of UDS of 342 sq. ft. in the subject survey number in favour of the complainant;
14. The legal notice issued by the complainant to all the opposite parties dt.23.12.2013 was marked as Ex.A15;
15. The letter to the 1^st opposite party intimating that the loan amount has been disbursed in favour of them as  per the request of the complainant and that the complainant has made a complaint about the non commencement of the project and the request to complete the construction and handover the property in favour of the complainant was marked as Ex.A16;
16. The letter issued by the 1^st opposite party to the complainant intimating the exchange of flat No.1 HG1 to 4GS2 dt.25.04.2015 was marked as Ex.A17.
17. The statement of accounts issued by the Vijaya Bank dt.28.04.2015 in proof of payment  of equated monthly instalments (EMIs) was marked as Ex.A18;
18. The legal notice issued by the complainant to the opposite parties seeking for refund amount with compensation dt.25.05.2015 was marked as Ex.A19;
19. The cover returned by the 3^rd opposite party dt:27.05.2015 was marked as Ex.A20.
20. The reply given by the 1^st opposite party denying allegations dated.24.06.2015 was marked as Ex.A21;

6.         Heard the Learned Counsel for the complainant.   It is submitted by him that the opposite parties had clandestinely approached the complainant for selling of the flat in the ‘Smart Homes’ and had received a sum of Rs.10,75,400/- but had not even commenced the construction.  It was argued by him that though more than 50% of the total sale consideration of Rs.18,20,000/- amounting to Rs.10,75,400/- was paid and also it was agreed as per the Construction Agreement dated:21.09.2012 that the flat will be handed over within 12 months from that date,  till the date of filing of the complaint the opposite parties had failed to even initiate the construction process thereby had committed utter deficiency in service and unfair trade practice resulting in severe mental agony and hardship to the complainant.  Thus he prayed for the complaint to be allowed as prayed for.

7.         It is obviously evident from the documents submitted by the complainant and the pleadings advanced by him which was not refuted by the opposite parties by appearing or filing any written version that the complainant was made to part with a huge amount of Rs.10,75,000/- in the guise of purchasing a flat.  It is also proved by the complainant which was not denied by the opposite party even in their reply notice that the construction of the flat has not even commenced.   Hence, it is amply proved by the complainant that the opposite party though entered into a Construction Agreement and had promised to handover possession within 12 months from the date of Agreement had deceived the complainant by not even commencing the construction of the flat.    The act of the opposite parties clearly amounts to deficiency in service which finding is supported by the ruling made by the Hon’ble Apex Court in Arifur Rahman Khan and Ors. Vs.DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 16 SCC 512, wherein it has been held as follows:-

"28. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation."

Thus, we hold that the opposite parties had committed clear deficiency in service and unfair trade practice. 

8.         With regard to the reliefs to be granted to the complainant who was put to untold mental agony and hardship by the act of the opposite parties who was made to part with valuable money and peace of mind we feel it appropriate to order compensation along with refund of the money with interest paid towards the purchase of the flat.  With regard to the 1^st prayer claimed by the complainant for the direction to direct the opposite parties to pay a sum of Rs.25,70,561/- we thought it appropriate to direct the opposite parties to refund a sum of Rs.10,75,400/- with 9% interest from the date of complaint till realization.   Further, on the other heads of payment as claimed by the complainant we are of the opinion that a comprehensive sum of Rs.5,00,000/- as compensation would be appropriate to meet the ends of justice.   The complainant shall re-convey after the entire award is satisfied, the undivided share of land of 342 sq. ft. in favour of the opposite parties at the cost of the opposite parties.   Thus we answer the point in favour of the complainant accordingly.

In the result, the complaint is partly allowed.   The opposite parties 1 to 3 are jointly and severally directed to refund the amount of Rs.10,75,400/- (Rupees Ten lakhs seventy five thousand four hundred only) with 9% p.a. interest from the date of complaint till realization.  Compensation of Rs.5,00,000/- is awarded for the mental agony and hardship.   Cost of Rs.10,000/- is ordered to be paid by the complainant.

 

S.M. LATHAMAHESWARI                                                                        R. SUBBIAH

          MEMBER                                                                                           PRESIDENT

 

List of Documents filed by the complainant:-  

Ex.A1 15.10.2012 Copy of Housing Loan Application Ex.A2 21.09.2012 Copy of Promoters Agreement Ex.A3 25.09.2012 Copy of Inspection Report of the property Ex.A4   Copy of Building Sketch given by the 1st opposite party Ex.A5 15.10.2012 Copy of sanction order of Vijaya Bank for housing loan Ex.A6 28.11.2012 Copy of letter sent by the 1st opposite party to complainant Ex.A7 29.11.2012 Copy of request letter sent by the complainant to bank Ex.A8 03.12.2012 Copy of letter and demand draft sent by the bank to 1st opposite party Ex.A9 29.11.2012 Copy of list of documents of title deeds deposited with Vijaya Bank Ex.A10 15.06.2011 Copy of Certificate of Insurance Ex.A11 15.11.2012 Copy of charges Memo by Chartered Accountants Ex.A12 30.11.2012 Copy of the Sale Deed Doc No.9360/2012 executed in favour of G. Maduraiveeran Ex.A13 25.02.2013 Copy of Memorandum of Deposit executed by the complainant in favour of Vijaya Bank Ex.A14 22.07.2014 Copy of Encumbrance Certificate Ex.A15 23.12.2013 Copy of legal notice sent by the Advocate to all the opposite parties Ex.A16 14.03.2014 Copy of letter sent by the bank to 1st opposite party Ex.A17 25.04.2015 Copy of letter sent by the 1st opposite party to complainant Ex.A18 28.04.2015 Copy of Statement of Accounts Ex.A19 25.05.2015 Copy of legal notice sent by the Advocate to all the opposite parties Ex.A20 27.05.2015 Copy of returned cover by the 3rd opposite party Ex.A21 24.06.2015 Copy of reply letter by the 1st opposite party
S.M.LATHA MAHESWARI                                                                         R. SUBBIAH                        MEMBER                                                                                          PRESIDENT