Tamil Nadu

StateCommission

CC/93/2013

K. HARINATH - Complainant(s)

Versus

M/S. CHELLAM BUILDERS - Opp.Party(s)

V. BALAJI

27 Mar 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                              PRESENT :  THIRU.A.K.ANNAMALAI                         PRESIDING JUDICIAL MEMBER

                                                     TMT.P.BAKIYAVATHI                             MEMBER

                                                                                       C.C.NO.93/2013

DATED THIS THE 27^th DAY OF MARCH 2015

                                                                                                                                              Date of filing :  23.08.2013

                                                                                                                                              Date of order : 27.03.2015

K.Harinath,

S/o.K.N.Karunasekaran,

Old No.1/25, New No.1/05,

Palaiyurm Kondayampalayam Post,                                                                                   M/s.V.Balaji

Kallipatti (Via),                                                                                                                   Counsel for complainant

Gobichettipalayam Taluk,

Erode District 638 505

                             -vs-

1.M/s.Chellam Builders,

   Rep.by its Managing Partner,

   No.121, M.K.Amman Koil Street,

   Mylapore, Chennai 600 004.

2.A.Viswanathan,

   Partner,

   M/s.Chellam Builders,

   No.29, Kallukaran Street,                                                                               Opposite parties 1 to 3

   Mylapore, Chennai 600 004.                                                                                      Exparte

3.G.S.Sundrakrishnan,

   Managing Partner,

   M/s.Chellam Builders,

   No.121, M.K.Amman Koil Street,

   Mylapore, Chennai 600 004.

          The complaint filed by the complainant before this commission against the opposite parties praying to direct the opposite parties to deliver the Flat No.F1 (South side, ‘B’ Block in the first floor of the building as per construction agreement or in alternatively directing the opposite parties to refund the sum of Rs.36,00,000/- with 18% interest from 10.3.2001 and to pay rental arrears of Ra.1,10,000/- from October 2012 to August 2013 at the rate of Rs.10,000/- from September 2013 and to pay a sum of Rs.15,00,000/- for compensation mental agony and to pay a sum of Rs.10,00,000/- for deficiency in service and to pay costs of Rs.50,000/-.   This complaint coming before us for final hearing on 23.02.2015 and heard the arguments on the side of the complainant, and perused the records and passed the following order:

THIRU.A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER

          The complaint filed under Sec.17 of the Consumer Protection Act, 1986.

          The complainant claimed a sum of Rs.62,60,000/- including refund of advance of Rs.36,00,000/-, rental arrears, compensation for mental agony alleging deficiency in service in not completing the project and handing over the building to the complainant and for costs.

2.       The case of the complaint in brief as follows:

          The complainant lured by the publicity made by the 1^st opposite party booked a flat in No.F1 (South side), ‘B’ Block, 1^st floor at Bhuvaneswari Nagar, Velacherry in Survey No.317/1A, 2A1, 1A2A2, New Town Survey No.5 & 6 measuring 450 sq.ft of undivided share in the land and 900 sq.ft of the building entered into an agreement for the total cost of land for Rs.11,25,000/- separately and also entered into construction agreement for the amount of Rs.27,90,000/- including in all for Rs.39,15,000/- and on condition to hand over the flat within 18 months from the date of agreement i.e. on or before 22.09.2012.  The complainant in all paid Rs.36,00,000/- on various dates from 10.03.2011 to 24.09.2011 including the bank loan of Rs.29,50,000/- represents 92% of the total costs of constriction and the balance amount of Rs.3,15,000/- to be paid at the time of handing over the possession of the flat.  But the opposite party completed only 70% of the work at the  time of  inspection  by the  State Bank of India which granted housing loan and the opposite party appears to have mortgaged the suit land and availed various loans and thereby the opposite parties have to release the land without having any encumbrance in the land and also failed to obtain CMDA completion certificate and they have not given so far measurement plan and Architect plan and the complainant unnecessarily paying rent at the rate of Rs.10,000/- and also paid EMI of Rs.31,763/- towards bank loan.  The opposite parties sent letters on various dates admitting the delay in construction and requesting for extension of time inspite of the same they have not completed any work in the flat and thereby the complainant is entitled for refund of the money already paid and also willing to execute the reconveyance of undivided share of land to the opposite parties and thereby the complainant praying for to deliver the flat No.F1 as per the agreement entered into or in the alternatively to refund the sum of Rs.36,00,000/- with 18% interest from 10.3.2011 and rental arrears of Rs.1,10,000/- from October 2012 to August 2013 and thereafter at the rate of 10,000/- from September 2013 and to pay Rs.15,00,000/- towards mental agony and to pay Rs.10,00,000/- towards deficiency of service and to pay Rs.50,000/- as costs.

3.       The opposite parties 1 to 3 failed to appear before this commission inspite of proper notices were sent for their appearance and for the hearing 1.10.2013, the notices were returned as ‘Door locked’ and subsequently paper publication was effected for the hearing on 26.11.2013 on which date also they failed to appear and thereby on 30.4.2014 after giving several chances the opposite parties 1 to 3 being called absent and were set exparte.

4.       The complainant filed his proof affidavit and the documents relied  upon  by him  are  marked as Ex.A1 to A12  including sale  agreement  and construction agreement and payment receipts and letters of the opposite parties requesting for extension of time.

5.       The points are for consideration :

          1. Whether there is deficiency of service on the part of the opposite parties in handing over the flat to the complainant even after receiving 92% of the payment within the agreed period of 18 months from the date of agreement?

          2.  Whether the complainant is entitled for the direction to the opposite parties to hand over the flat to him or in the alternatively for refund of Rs.36,00,000/- which was paid for the same to the opposite parties?

          3.   Whether the complainant is entitled for rental arrears of Rs.1,10,000/- from the period from October 2012 to August 2013 and thereafter at the rate of Rs.10,000/- per month?

          4.  Whether the complainant is entitled for Rs.15,00,000/- and Rs.10,00,000/- each for compensation for mental agony and for deficiency in service?

          5.  To what relief ?

6.       POINT NOS.1 TO 3 :    In this complaint the complainant alleged that he had entered into sale agreement for Rs.11,25,000/- for land measuring of 450 sq.ft of undivided share in which construction to be made and also a separate construction agreement for Rs.27,90,000/- was made on 22.3.2011 and also contended as on the date of complaint on various dates in all he has paid Rs.36,00,000/-  including  the bank loan of Rs.29,50,000/- for which he alleged that he has paid Rs.31,763/- as EMI and also claimed rent arrears and rent loss since the flat was not handed over within 18 months as per the agreement and on perusal of the agreement Ex.A1 and A2.  Ex.A1 is the Sale agreement for the execution of 450 sq.ft undivided share of land for the proposed construction by the owners of the land.  Ex.A2 is the construction agreement entered into between the complainant and on behalf of the 1^st opposite party builder partner of the 2^nd opposite party entered into an agreement for which the opposite party’s managing partner agreed to construct the flat to the extent of 900 sq.ft for a sum of Rs.27,90,000/- and also it is agreed to hand over the flat after completion within 18 months from the date of agreement as per condition No.10.  Further the complainant also produced various receipts under Ex.A3 to A7 for payments towards purchase of flat and the letters sent by the opposite parties under Ex.A10, A11 and A12.  On perusal of those letters in which the opposite parties informed the complainant about the inability of completion of the flats alleging various reasons like workers problems and continuous strike and difficulties in getting the electricity service facilities, Elevators installed etc and thereby requesting to extend the time limit then and there from the period from 1.10.2012 to 31.12.2012 and then from time upto February 2013 and then from 21.6.2013 to 31.8.2013 and till the complaint is filed on 23.8.2013, the possession of flat was not given and still not completed the building.   The allegations are not denied by the opposite parties either by entered into appearance before this Commission or by sending any communications, repudiated the allegations of the complainant and thereby the complainant’s case is  taken as proved and accordingly the complaint is to be allowed.  Since the flat intended to be purchased was not at all handed over or near in site incompletion within the reasonable time even after to filing of this complaint,  we are of the view that the complainant is entitled for the refund of the amount instead of getting the flat from the opposite parties.  The complainant claimed rental arrears at the rate of Rs.9000/- per month from the month of October 2012 to August 2013 and subsequently at the rate of Rs.10,000/- from the month of September 2013 onwards on the basis of the delay in handing over the flat for which even though the complainant produced copies of rental agreement under Ex.A8 and A9 while considering the conditions of the construction agreement there is no such agreement for payment of any loss of rental beyond the period of 18 months and in condition No.10 the opposite parties are entitled for extension of time if warranted under certain conditions and further the complainant has not proved that he was only depending upon the proposed flat alone even before the agreement for his stay.  Hence we are of the view that he is not entitled for any loss of rental income as per condition No.10 in the agreement Ex.A2 and these points are answered accordingly.

7.       POINT NO.4 :    The complainant claimed a sum of Rs.15,00,000/- and Rs.10,00,000/- for rendering deficiency in service by the opposite party and mental agony in not completing the project.  While considering these claims are concerned since there is deficiency in service in not handing over the completed flat within the agreed time of 18 months from the date of agreement and since the complainant had paid 92% of amount inspite of the same he is not in a position to get possession of the flat or return of money certainly  which would cause  mental  agony  for  which  also  he should  be suitably compensated.  We are inclined to award a sum of  Rs.1,00,000/- each towards compensation for mental agony and for deficiency of service and this point is answered accordingly.

8.       POINT NO.5 :    In view of the findings in point Nos. 1 to 4 in favour of the complainant since the opposite parties have collected Rs.36,00,000/- towards sale of flat including the undivided share of land about 92% of the total costs and they are doing business as builders the amount order to be refunded is certainly entitled for interest also for the amount paid by the complainant through which they are doing business in building and thereby we are inclined to award interest also.  Even though the complainant claimed 18% interest and as per the construction agreement in clause No.8 if the allottee fails to pay the dues the builders can  impose 12% interest for the dues and thereby we feel that awarding of 15% of the interest would be justified for the refund of money also and thereby accordingly this point is answered.

 

9.       In the result, the complaint is allowed.

          1.  The 1^st opposite party is directed to refund the sum of Rs.36,00,000/- with 15% interest from the date of complaint (23.08.2013) till realization.  On condition that the complainant shall reconvey the undivided share of the land of 450sq.ft as per agreement executed in favour of the complainant as per Ex.A1 on receipt of payment from the opposite parties simultaneously.

          2.  The opposite parties 1 to 3 shall pay a sum of Rs.1,00,000/- each ( in all for Rs.2,00,000/-) as compensation for causing mental agony to the complainant and for deficiency in service in not handing over the flat as per the agreement

          3.  To pay a sum of Rs.10,000/- as costs.

          4.   The directions shall be complied within a period of six weeks from the date of this order and the complainant is directed to re-convey the undivided share of land on receipt of the refund of money of Rs.36,00,000/-already paid with 15% interest as directed above.     

 

P.BAKIYAVATHI                                                       A.K.ANNAMALAI

    MEMBER                                                  PRESIDING JUDICIAL MEMBER

LIST OF DOCUMENTS FILED BY THE COMPLAINANT :

Sl.No	Date	Descriptions
Ex.A1	10.03.2011	Copy of Agreement of Sale
Ex.A2	22.03.2011	Copy of Construction Agreement
Ex.A3	17.02.2011	Copy of Receipt
Ex.A4	21.02.2011	Copy of Receipt
Ex.A5	18.05.2011	Copy of Receipt
Ex.A6	24.09.2011	Copy of Receipt
Ex.A7	06.04.2012	Copy of Receipt
Ex.A8	30.04.2012	Copy of Rental Agreement
Ex.A9	30.03.2013	Copy of Rental Agreement
Ex.A10	09.10.2012	Copy of letter from the opposite parties
Ex.A11	22.12.2012	Copy of letter from the opposite parties
Ex.A12	21.06.2013	Copy of letter from the opposite parties

 

P.BAKIYAVATHI                                                       A.K.ANNAMALAI

    MEMBER                                                  PRESIDING JUDICIAL MEMBER

 

INDEX; YES / NO

VL/PJM/D;/ CONSTRUCTION