Tamil Nadu

StateCommission

CC/160/2018

Mr.O.N. Chandran, S/o O.S.Nanjan - Complainant(s)

Versus

M/s. Dakshin Home Developers, Rep by its Managing Partner, Mr. R.R.Arun Raja and 2 others - Opp.Party(s)

M/s. A.Bobblie

04 Mar 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 3.

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

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

 

CC. No.160/2018

                                                                 DATED THE  4 ^TH DAY OF  MARCH  2022

 

Mr. O.N. Chandran,

S/o Mr. O.N.Nanjan,

No.D.402, Dakshin Homes,

Gandhiji Road, (Thayir Itteri Road,),

Rathinapuri post,

Coimbatore – 641 027                                                                           ..complainant

 

                                                               Vs

1.M/s Dakshin Home Developers,

No.A,103, Dakshin Homes,

Gandhiji Road, (Thayir Itteri Road)

Rathinapuri post,

Coimbatore – 641 027                        

 

2. Mr.R.R.Arun Raja,

Partner, M/s Dakshin Home Developers,

No.A.103, Dakshin Homes

Gandhiji Road, (Thayir Itteri Road)

Rathinapuri post,

Coimbatore – 641 027                        

 

3. Mrs. A.Jamuna

Partner : Dakshin Home Developers,

No.A.103, Dakshin Homes

Gandhiji Road, (Thayir Itteri Road)

Rathinapuri post,

Coimbatore – 641 027                                                                      ..opposite parties

 

For complainant                                  :  Party in person

Counsel for opposite parties 1 to 3     : M/s Om Sai Ram

 

      This complaint was heard on various dates and finally on 15.2.2022 and on hearing the arguments of both parties and on perusing the material records, this Commission pronounced the following order :-

 

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

The present complaint was filed alleging deficiency in service against the opposite parties and for a prayer  to direct the opposite parties,

1. to refund the excess amount collected from the complainant a sum of Rs.7,16,227/-  with interest at the rate of 12% from the date of complaint till realization;
2.  to provide amenities such as ;

1. UGD (underground drainage linking)
2. Multi-purpose Hall, Gym;
3. Indoor Sports Hall ;
4. Common area features viz, pipeline gas connection; fencing over the compound wall, shuttle court to the size 44’X20’ front office lounge; Amphi theatre etc;
5. Whether proof clay tiles in the terrace;
6. Corporation drinking water supply ;
7. Hot water facility with necessary separate pipeline and fittings thereto including the common solar water heater;
8. R.O water facility for all utility areas;

3. to shift the common sewage treatment plant to open yard from the main building ;
4. to execute registered document for omitted UDS land to the extent of 10.5 cents ;
5. to give completion certificate for the building ;
6. to handover the maintenance of the entire apartment with his corpus fund to the association of apartment owners M/s Dakshin Homes Apartment Owners Association ;
7. to pay a sum of Rs.1,50,000/- towards mental agony ;
8. for cost .

Complaint allegations :-

            Complainant is one of the purchaser of an apartment in 4^th floor of D Block, D-402 in the apartments promoted by the opposite party No.1, M/s Dakshin Home Developers. The cost of the apartment was fixed at Rs.42 lakhs and the sale cum construction agreement was entered between the parties on 4.12.2012. The sale price of Rs.42 lakhs included all the amenities such as car parking, EB and genset, water and R.O charges, sewage plant and UGV charges, multipurpose hall, Gym, indoor sports etc., The sum of Rs.30 lakhs out of the total 42 lakhs was paid by bank loan. Initially, the complainant booked only 2 bedroom flat later on the opposite parties compelled  him to purchase an 3 bedroom flat and collected extra amount of Rs.5,87,000/- for which the opposite party had also issued receipts.  However  on 15.1.2017, the complainant was made to accept a 2 bedroom flat for occupation as 3 bed room flat which was allotted to the complainant was sold to a 3^rd party. It is however, promised by the opposite parties that they would refund the extra amount collected for the 3 bed room flat, but the same was not repaid till today. With regard to the amenities assured in the promotion pamphlet and the construction agreement dated 14.12.2012, the opposite parties had not provided many of the facilities such as pipeline gas connection, fencing over the compound wall, shuttle court, front office lounge, amphi theatre etc., Even after three and half year of the execution of the sale cum construction agreement, the opposite parties had not completed the entire construction with the amenities. Further the opposite parties have not arranged for the plumbing work to provide hot water facility and did not even apply for the supply of corporation drinking water. The common sewage treatment plant situated in the open area causes great nuisance for the Block D and L with a bad odour. Further while executing the sale deed for UDS the opposite parties did not give share in proper ratio to the built up area purchased by the owners and in total 10.5 cents has been left out in total and inspite of request for rectification of the same, the opposite parties failed to execute any rectification deed. The completion certificate was also not handed over to the complainant till today . Inspite of repeated demand from the owners nearly 50 flats owners, the opposite parties deliberately avoided the meetings conducted by the flat owners for the formation of Flat Owners Association and finally the flat owners themselves formed an association in the name of  M/s Dakshin Homes Apartments Owner’s Association and registered the same on 19.6.2017.  However, till today it is only the opposite parties who are collecting the maintenance charges without adhering to the demands of the Association.  The opposite parties though collected Rs.1 lakh from each flat owners as corpus fund for the maintenance of the flat, the same was not deposited in the bank in the Association’s account. Thus aggrieved over the deficiencies committed by the opposite parties the complainant had issued a legal notice dated 22.1.2018 and has preferred the present complaint for the reliefs as mentioned above.

Defence by the opposite parties :-               The opposite parties filed version stating that they are the promoters of multistoried Apartment called “Dakshin Homes”. The complainant having been occupied the flat on 1.7.2015 filing the present complaint in 2018 is clearly time barred and hit by limitation. The opposite parties denied the averments made in the complaint as concocted and manipulated and misleading. The opposite parties submitted that the complaint is not maintainable before this consumer commission for want of pecuniary jurisdiction. Further the opposite parties denied that the complainant had made the payments as per the schedule found in the Agreement’s the payment schedule,  but had made payments as follows;

Date	Amount
6.9.2014	Rs.5,00,000/-
19.9.2014	Rs.2,00,000/-
10.10.2014	Rs.5,00,000/-
28.10.2014	Rs.25,00,000/-
31.5.2015	Rs. 5,00,000/-
11.4.2015	Rs. 2,00,000/-
14.5.2015	Rs.1,00,000/-
20.5.2015	Rs.2,00,000/-
8.6.2015	Rs.   87,000/-
Total	Rs.47,87,000/-

Thus the opposite parties submitted that the complainant never adhered to the schedule of payment as envisaged in the agreement. Further the opposite parties also denied that they never canvassed the complainant for purchase of a 3 bedroom flat instead of a 2 bedroom flat. Further the Coimbatore Corporation has made property tax assessment for the flat allotted to the complainant on 2.3.2015 and the property tax demand card is filed as a document. On the date of occupation, i.e 1.7.2015, the complainant had a balance of Rs.13,01,760/- as the complainant failed to make the payment as per the schedule. The opposite parties states that still the complainant as on 8.6.2015 was liable to pay the said sum with interest as per the schedule filed as document No.1, along with  the written version. The opposite parties denied that the alleged deficiency in service with regard to non-providing of amenities as stated in the complaint. The complainant is entitled only to the UDS as per the agreement and accordingly the UDS of 436 sq.ft has been allotted and registered to him. Therefore the allegation with regard to the deficit UDS of 10.5 cents by the complainant is false. The complainant is raising the  question of completion certificate after 3 years of occupying the flat which is ridicules and malafide. Thus the opposite parties sought for the complaint to be dismissed stating that the complainant has to make a balance payment of Rs. 13,01,760/- as per the schedule  in the construction agreement along with interest and that the complaint is filed with malafide and wrongful intent with a view to harass and damage the opposite parties goodwill and reputation.

The complainant filed proof affidavit and submitted documents marked as Ex.A.1 to A.9. On the side of opposite parties, proof affidavit along with documents, ex.B.1 to B.4 was filed.

Point for consideration :-

1. Whether the complaint allegations could be decided before the Consumer Commission?

 2. Whether the opposite parties had committed any deficiency in service as alleged by the complainant and if so to what relief he is entitled?

Point No. 1 and  2 :

            The complainant filed the following documents in proof of his allegation:

1. The apartment brochure of Dakshin Homes was marked as Ex.A.1;
2. The sale cum construction agreement dated 14.12.2012 entered between the parties as marked as Ex.A.2;
3. The receipts issued by the opposite parties for the payment made by the complainant were marked as Ex.A.3;
4. The sale deed dated 12.9.2014 executed by the opposite parties in favour of the complainant  admitting the payment of entire sale consideration and conveying  and extent of 436 sq.ft as UDS is marked as Ex.A.4;
5. The property tax book dated 8.1.2018 has been marked as Ex.A.5;
6. The statement showing the allotment of undivided share of land to other flat owners was marked as EX.A.6;
7. the certificate of registration of Association of the flat owner dated 19.6.2017 was marked as Ex.A.7;
8. The legal notice sent by the complainant to the opposite parties  dated 22.1.2018 was marked as Ex.A.8;
9. The postal acknowledgment for the receipt of notice was marked as Ex.A.9;

The following documents were marked by the opposite parties in proof of the defence along with the proof affidavit.

1. The statement of accounts relating to payments made by the complainant along with the schedule for payment as per the agreement and the outstanding balance on the respective dates was marked as Ex.B.1;
2. The copy of property tax assessment made by the Coimbatore Corporation for the complainant’s property was marked as Ex.B.2;
3. The copy of electricity consumption statement with effect from 1.7.2015 duly signed by the complainant was marked as Ex.B.3;
4. The receipt issued by the Coimbatore Corporation with regard to the deposit made for drainage was marked as EX.B.4.

Heard both counsels and perused the documents and pleadings and written arguments filed by both the parties. The counsel for the opposite parties vehemently disputed the maintainability of the complaint before this consumer Commission. We are also of the view that the complaint allegations made by the complainant before this consumer commission could not be adjudicated and  decided in a summary manner for the following reasons :

1. The complainant had submitted that he had made a total payment of Rs.42 lakhs for the purchase of the flat and an additional amount of Rs.5,87,000/- was paid by him for the purchase of a triple bed room flat , however as he was allotted only a double bed room apartment, he sought for the refund of the additional amount with interest. However the opposite parties has filed EX.B.1 showing statement of accounts for the payments made by the complainant  which shows that there is some  balance amount to be payable by the complainant  as on 8.6.2019. it is the specific contention of the opposite parties that the complainant had failed to adhere to the schedule payment found in the agreement and hence there is some balance to be paid.
2. The complainant had alleged that the opposite parties failed to provide amenities such as pipeline gas connection, fencing over compound wall, shuttle court, front office lounge, Amphi theatre etc. However he has not sought for any advocate commissioner to be appointed by the commission along with a qualified engineer to visit the property and to analyse and determine the non-provision of the amenities by the opposite parties and to examine the defects alleged by him in the complaint.
3.  Further the complainant has not produced any evidence to show that the common sewage treatment plant is situated in the common area which provided huge noise and bad odour. The same could be proved only by letting expert opinion.
4. The complainant submitted that he occupied the flat in 2017. However the opposite parties has filed Ex. B.3 to show that the complainant had occupied the flat from 1.7.2015  and has been regularly paying the electricity bill for the said flat. Hence evidence required to prove the date of occupation by the complainant.
5. The complainant had submitted that it is only the opposite parties who had delayed the handing over of the possession. However, the same was denied by the opposite parties stating that the possession was handed over as early as in 2015 for occupation and the property tax assessment was made in 2015. No contra evidence was produced by complainant by way of reply to the said statement.
6. The balance payment of 13,11,760/- alleged by the opposite parties was denied by the complainant stating that no action was taken by the opposite parties to realize the same.  In such scenario both parties has to produce detailed statement of accounts to prove their case with respect to payments.

    Thus when we analyse the complaint allegations and defence made by both the parties, we are of the considered opinion that the issue involves production of oral and documentary evidence extensively and the same is possible only before a civil court where the parties are at liberty to adduce elaborate evidences. The consumer commission is a forum where the issue is tried in a summary manner. Therefore in the facts and circumstances of the case we are of the view that a civil court with competent jurisdiction would be the appropriate forum to try the issue and hence the complaint filed before this commission is dismissed as not maintainable. Thus we answer point No.1 against the complainant holding that the consumer complaint is not maintainable before this Commission.

 

Point No.2 :

            As we have held above that the complaint is not maintainable we do not dwell into the issue as to whether the opposite parties has committed any deficiency in service. We keep the issue open to be decided by an appropriate forum. Thus the point is answered accordingly.

            In the result, the complaint is dismissed. No order as to cost.

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH            

          MEMBER                                                                                            PRESIDENT

 

List of Documents filled by the Complainant:-   

 

Ex.A1		Copy of Apartment brochure or promotion pamphlet
Ex.A2 Ex.A.3   Ex.A.4 Ex.A.5 Ex.A.6   Ex.A.7   Ex.A.8 Ex.A.9	14.12.2012 6.9.2014   12.9.2014 8.1.2018     19.6.2017   22.1.2018 27.1.2018	Copy of sale-cum-construction Agreement Copy of receipts for payments made to purchase the flat -7 Nos Copy of sale deed stands in the name of complainant. Copy of property Tax Book Copy of statement showing UDS allotted to flat owners (Net Extract) Certificate of Registration of Association of Flat Owners Copy of legal notice sent to opposite parties. Copy of postal acknowledgements (3 Nos)

List of Documents filled by the Complainant:-   

Ex.B.1                        8.6.2015         Copy of Statement of Account

Ex.B.2                        2.3.2015         Copy of property Tax Assessment-Coimbatore

                                                Corporation

Ex.B.3                                                Copy of Electricity Consumption statement with effect

Ex.B.4                        20.4.2012      copy of Receipt issued by Corporation of Coimbatore

 

           

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH            

          MEMBER                                                                                           PRESIDENT