Tamil Nadu

South Chennai

CC/76/2020

N.Sowrirajan - Complainant(s)

Versus

M/s. Annapoorani Shelters Pvt. Ltd., - Opp.Party(s)

R.S. Ragavan, S.Mohanakrishnan

06 Mar 2023

ORDER

                                            Date of Complaint Filed : 08.09.2020

                                           Date of Reservation      : 17.02.2023

                                           Date of Order               : 06.03.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,          : MEMBER II

 

CONSUMER COMPLAINT No.76 /2020

MONDAY, THE 6^th DAY OF MARCH 2023

N Sowrirajan, M,

S/o. Neelamegam, No.51/2,

Lake View Road,

West Mambalam,

Chennai-600 033.                                                                                                                     ... Complainant                

..Vs..

 

M/s.Annapoorani Shelters Pvt. Ltd.

Rep. by its Managing Director,

S.Natchiappan.M,

Block-L8, Flat-S,

Sarvamangala Colony,

Ashok Nagar, Chennai-83

 

Also having office at

 

Mr. S. Nachiappan M,

No.2/544/3, Manoranjitham Street,

6^th Main Road, Gomathipuram,

Madurai-625 020, TN.                                                                                                                   ...  Opposite Party

 

******

Counsel for the Complainant          :M/s. R.S. Raghavan

Counsel for the Opposite Party       :Exparte

 

On perusal of records and upon treating the written arguments as oral arguments of Complainant on endorsement made by the Counsel for the Complainant,  we delivered the following:

 

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party to refund of entire sum of Rs.37,00,000/- along with interest and to pay a sum of Rs.13,00,000/- as compensation towards mental agony and harassment caused by the Opposite Party along with cost of this complaint.

2.     The averments of Complaint in brief are as follows:-

The Complainant submitted that he was approached by the Opposite Party to buy a flat in a project promoted by the Opposite Party in the suit schedule property and One Mr.Selvaraj was the Landowner of the said suit schedule property and the Complainant entered into an agreement for purchase of land and construction agreement with the Opposite Party on 18.09.2013 initially with a firm called N N HOMES and later on it was changed into M/S Anna Poorani Shelters P Ltd. After acceding to the request of the Opposite Party and finalized a flat in the first floor in the suit schedule property and entered sale agreement for purchase of 362 sq.ft. of land including common area and car parking etc., in suit schedule property with a built up area admeasuring 844 sq.ft in the first floor of the suit schedule property with renewed name called as M/S Anna Poorani Shelters P Ltd. The Complainant entered into an agreement with Opposite Party for a sale consideration of Rs.37,00,000/- and informed the Opposite Party that he was not having sufficient cash and the said Opposite Party made arrangement for the Housing loan with the Axis Bank and the said bank paid full payment to the Opposite Party and the same was confirmed through Bank letter dated 27.01.2016. On the agreement with the Opposite Party he had honoured all the payments due to the Opposite Party and to Mr.Selvaraj and the same was confirmed by the Opposite Party vide various receipts in various dates 04.03.2014, 28.07.2014 and alter receiving the full consideration, the Opposite Party along with the Said Mr.Selvaraj Executed Sale Deed favouring Complainant For UDS Of 362 Sq.Ft. before the Sub Registrar, Saidapet, vide Sale Deed No:9362 of 2014 dated 23.07.2014 and Sale Deed Vide Document No:9364/2014 for 844 Sq.ft of Buildings. The Opposite Party informed the Complainant that the possession of the flat will be handed over on the day of registration and the Opposite Party deferred the same and later on informed the Complainant that he is waiting for certain approvals and on the receipt of the same building and construction work will be over and the possession will be handed over to the Complainant. Inspite of several reminders the Opposite Party failed to handover the Possession of the flat and it is learnt that the amount paid towards purchase of flats was diverted to lending of money business and the same was reflecting in the records of Registrar of companies and the same was reiterated by the said Mr.Selvaraj who filed suit against the Opposite Party for recovery of money before the Sub Ordinate Court, Kanchi. The Complainant left with no other option the Complainant urged the Opposite Party to hand over the flat or to return his money but the Opposite Party failed to do and finally informed the Complainant that the said possession of the flat will be handed over by 31.12.2018 without fail and from 2018 till date the possession of the flat is not with the Complainant and the Opposite Party started avoiding attending calls of the Complainant. Further states he was paying interest to Axis Bank for a property which is not in his possession and the Complainant recently came to know that the construction work of the site was over and the Opposite Party had failed to hand over the possession due the reasons known to the Opposite Party. The Opposite Party is liable to compensate for the mental agony, harassment, troubles, loss of business, physical inconvenience arising out of direct breach of contract. Hence the complaint.

3. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as  Ex.A-1 to Ex.A-10. The Opposite Party did not appear before this Commission even after sufficient notice was served on it and remained absent. Hence the Opposite Party was set exparte on 05.07.2022.

4.    Points for Consideration:-

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

 5.  The Complainant submitted that initially he had entered into construction agreement and Sale Agreement on 18.09.2013 as seen from Ex.A-1 and Ex.A-2 with N.N. Homes  which was later changed to M/s.Anna Poorani Shelter Pvt. Ltd.  Thereafter the Complainant had entered into Sale Agreement with the Opposite Party for purchase of 362 Sq.ft of land as per Ex.A-9 and Construction Agreement vide Ex.A-7 to built construction measuring an extent of 844 sq.ft in the 1^st floor including common area and car park for a sale consideration of Rs.37,76,000/- which was paid to the Opposite Party after availing Housing Loan from the Axis Bank as evident from Ex.A-4 to Ex.A-6 for which loan the Complainant has been paying interest to the Axis Bank. 

 6.  The Opposite Party had executed Sale Deed in favour of the Complainant on 01.09.2014 vide Doc No.9324/2014 Ex.A-10 and on the same date the Complainant had executed Memorandum of Deposit of Title Deeds in favour of Axis Bank depositing original title deeds in to the Bank as security for the loan availed by the Complainant from the bank as evidenced from Ex.A-8. The contention of the Complainant is that inspite of several remainders to the Opposite Party failed to hand over the possession of the flat and the amount paid was diverted to lending of money business and that the Complainant came to know that the construction of site was over and the Opposite Party failed to hand over possession.

  7.    As per the Construction Agreement dated 23.07.2014, Ex.A-7 the Opposite Party had agreed to complete the construction within 9 months from the date of agreement.  However the Opposite Party had failed to hand over the possession, of the flat as agreed.  

            It is seen that even after a delay of nearly 7 years there is no offer of handing over possession by the Opposite Party.  The Complainant had paid a sum of Rs.37,00,000/- towards sale consideration of the flat.

        The Complainant relied upon the decision of Hon’ble SCDRC, Maharastra in (2004) (1) CPC 220 wherein it was held that if the alleged deficiency against the builder is for non delivery of possession, then the cause of action would stand continuous till the possession is made.  Even in the present case as the possession of flat is not handed over to the Complainant. There is continues  cause of action for the Complainant.

       Further reliance was placed on the decision of Honble NCDRC in 2022(3) CPR (NC) 322, Narayan Builders and Developers Vs. Madurai Shares and another and as per the Law laid down by the Hon’ble Supreme Court in Fortune Infrastructure Vs. Trevor Dlima, (2018)5 SCC 442 a buyer cannot be expected to wait indefinitely for possession and in a case of unreasonable delay in handing over possession, he cannot be compelled to accept possession at a belated stage and is entitled to  seek  refund  of  the

 

amount paid with compensation. The Complainant also relied on the decision of the Honble SCDRC Chandigarh in Anjali Sharma Vs Emaar MGF and another, reported in 2016 (4) CPR 73, wherein it was held that the Complainant are entitled to get refund of the amount along with interest as the Opposite Party did not hand over possession of the unit by the stipulated date which is applicable to the present case.

      In view of the above discussions that the Opposite Party having agreed to complete the construction and hand over the possession of flat within 9 months from the date of the Agreement i.e., 23.07.2014, and has informed to the Complainant that the possession of flat would be finally handed over by 31.12.2018, the Opposite party failed to hand over the flat as stipulated in the Agreement as well by their promise to hand over latest by 31.12.2018 even after receipt of a sum of Rs.37,00,000/- as Sale Consideration. The act of the Opposite Party in not handing over the physical possession of the flat as agreed amounts to deficiency in service and the Complainant is entitled to get refund of the amount deposited by him. 

Point No.2 and 3:

     As discussed and decided in Point No.1 we are inclined to grant reliefs sought for by the Complainant.  The Opposite Party is liable to refund a sum of Rs.37,00,000/- paid by the Complainant towards the sale consideration of the flat with interest at 9% p.a. from the dates of receipts of deposits till the date of realization and to pay a sum of Rs.5000/- towards litigation cost.

In the result, the complaint is allowed in part. The Opposite Party is directed to refund a sum of Rs.37,00,000/- (Rupees Thirty Seven Lakhs Only) paid by the Complainant towards Sale consideration of flat with interest at the rate of 9% p.a from the dates of receipt of deposits  till the date of realization and to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of the litigation, within 8 weeks  from the date of receipt of the order, failing which the above said amount of Rs. 37,00,000/- shall carry interest @12% p.a from the date of the  order till the date of realization.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

          In the result this complaint is allowed in part. 

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 6^th of March 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

Ex.A1	18.09.2013	Construction agreement
Ex.A2	18.09.2012	Sale agreement
Ex.A3	19.06.2015	Supplementary agreement
Ex.A4	28.07.2014	Cash receipt from Opposite Party
Ex.A5	04.03.2014	Cash receipt from Opposite Party
Ex.A6	27.01.2016	Payment receipt from by Opposite Party
Ex.A7	23.07.2014	Registered construction Agreement
Ex.A8	01.09.2014	Memorandum of Deposit of Title Deeds
Ex.A9	23.07.2014	Agreement for Sale with Opposite Party
Ex.A10	01.09.2014	Sale Deed by Opposite Party and Mr.Selvaraj

 

List of documents filed on the side of the Opposite Party:-

 

NIL

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT