Tamil Nadu

South Chennai

CC/235/2003

Mohan Babu - Complainant(s)

Versus

M/s. Deccan Estates and Construction Ltd., - Opp.Party(s)

M/s Sugumar

20 Dec 2016

ORDER

                                                                        Date of Filing :   16.05.2003

                                                                        Date of Order :   20.12.2016

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 235/2003

TUESDAY THIS  20^TH  DAY OF DECEMBER 2016

 

1.Meenakshi D.Mohan (died on 22.11.2008),

 

2.Mohan Babu,

No.198, Driscoll Court,

Somerset, New Jersey – 08873

United States of America

(As per order in CMP No.126/2009 Dated 15.11.2010)       ..Complainant

 

                                              Vs

 

M/s Deccan Estates and Construction Ltd.,

No.46, Dr.B.N.Road, T.Nagar,

Chennai 600 017

Rep.by its Managing Director

A.Nirmal Ghadiya                                                           ..Opposite party

 

Counsel for the complainant                  : M/s Sugumar R.Rajulu

Counsel for the opposite party               : M/s M.Sundar

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.4,86,107.34 towards damages for defects in the construction and conveyance of lesser undivided share of land and to pay Rs.10,000/- as damages towards mental agony suffered by the complainant to pay the cost of the complaint.

1. The averment of the complaint are brief as follows:

        There was a Memorandum of understanding cum-construction agreement dated 4.8.1998 between the complainant and the opposite party agreed to allot an undivided share of 996 sq.ft of land comprised in S.No.142/5, T.M.Maistry street, Thiruvanmiyur to the complainant. The opposite party also agreed to construct a residential flat measuring about 1631 sq.ft. bearing No.107 in the II floor, Block No.1, in Deccan Enclave for the complainant according to the specifications given in schedule ‘D’ to the above said agreement. The total consideration for the property payable by the complainant was fixed at Rs.13,68,825/-.

2.         The complainant observed some glaring structural and other defects in the construction of the residential flat. So the complainant sent a letter 21.11.2001 to the opposite party pointing out the defects observed. To this letter, the opposite party sent a reply dated 14.12.2001 addressed to the complainant. So, the complainant on 12.1.2002, sent a detailed letter drawing the attention of the opposite party to various points for immediate attention. Even then, no efforts were taken by the opposite party to setright the defects.  The opposite party handed over the keys of the residential flat to the complainant on 2.2.2002 and noticed bad workmanship of roof ceiling terrace water proof course and weathering course covering an area of 1631 sq.ft. Because of the bad workmanship there is seepage of water leaving ugly tell-tale stain marks on the wall. Apparently the materials used were sub-standard. The continuous seepage would not only lead to weakening of structure would also lead to unhygiencic formations and it would also affect the concealed electrical wiring system and there is possibility of electrocution causing risk to human life and also damage to such expensive electrical appliances like Air Conditioner, Refrigerator etc. The seepage from the toilets of the flat in the floors above and such washable areas as kitchen etc., would also cause nuisance and health hazard.

3.         That there is bad workmanship in the flooring also. The tiles used in fact were not only of sub-standard quality but also of bad workmanship. The marble used for bath room flooring is also of an inferior quality. Though it was agreed that all the walls around the bathroom to roof level would be covered by tiles, tiles have been provided only upto lintel level. Sanitary fittings such as shower rose, handle for cistern, tap cocks, protruding fittings like taps, elbows and straights and covering of the nani traps (jolly) appeared to have been procured from second hand reconditioned sources. The fact that instead of using new and good sanitary fittings, the opposite party has used fittings procured from second hand sources clearly constitutes violation of agreement as well as deficiency of service.

As per the agreement dated 4.8.98 the opposite party agreed to provide an extent of 996 sq.ft of undivided share.  But the opposite party conveyed only an extent of 791 sq.ft. of undivided share in the land. There is a clear shortfall of 205 sq.ft  amounting to clear breach of agreement. Even though the opposite party received all the letters sent by the complainant, the opposite party did not do anything to set right the defects. Hence the complainant was constrained to send a legal notice dated 28.10.2002 to the opposite party through his advocate.  Before sending the legal notice the complainant had inspected the premises by a qualified Engineer who gave a report dated 22.10.2002, based on, which the complainant claimed a sum of Rs.4,86,107.34. Though the opposite party received the legal notice on 30.10.2002, the opposite party neither bothered to send a reply nor attend to the defects. Obviously the opposite party had nothing to say rebutting the allegations contained in the notice. The silence amounted to implied admission. There is a clear deficiency of service on the part of the opposite party. Hence the complaint.

4. Written Version of  opposite party is  in briefly as follows:

       The opposite party is doing business for the past several years. They are reputed concern and doing finance and construction business.  It is true that the opposite party had received complaint from the complainant on 21.11.2001 pointing out certain defects and the opposite party, on 14.12.2001, properly replied the same. The claim of the complainant is unjust and illegal. It is also true that on 12.1.2002 the complainant sent another letter in which he admitted that the Tiles used are in good quality.   The opposite party denies the allegation that the flat was handed over to the complainant on 2.2.2002, it was around September 2000. The document for handing over the possession was given on 2.2.2002. The complainant in order to  file this case, intentionally suppressed all the above material facts, before this Hon’ble court, to overcome the limitation.

     It is wrong to say that the workmanship of roof ceiling terrace water proof course and weathering course covering an area of 1631 sq.ft.   It is also wrong to say that seepage of water leaving ugly tell tale stain marks on the wall.  It is also un-true to say that the flat look unhygienic formation.   The complainant’s grievance in his letter dated 21.11.2001 he admitted that the tiles used rein of good quality and only some of the tiles shades are differing, the opposite party beg to submit that the shades differ only to very negligible amount and the same was rectified immediately by the opposite party at their cost.

5.    The complainant has not even chosen to pay the entire sale consideration but going on trying to spin out a case in his favour.  The complainant unnecessarily gave complaints against the opposite party and about the nature of construction and going on changing the plan for his choice.   The opposite party also done all the quarries made by the complainant at the cost of the opposite party in order to avoid confrontation.   The complainant also asked car parking of his choice, which is earmarked for some other purchaser.  But the opposite party by convincing the other party handed over the car parking place of his choice.   The complainant without informing the complainant made much alteration after receiving the flats by the help of his relative who is working as civil engineer.  The complainant after doing all the unlawful things, his is shifting the burden to the opposite party.  

6.        The complainant main motive is to extract money from the opposite party without paying the full sale consideration.    The complaint itself is not maintainable when the complainant has not paid his total sale consideration as agreed by him earlier.  Hence this forum has no jurisdiction to entertain the case when sale consideration has not paid fully.   There is a typographical error in the sale deed instead of 996 sq. ft  it was typed as 791 sq. ft.   The sale deed was executed as early as 21.9.1999.  Neither the complainant nor the opposite party noticed the same for nearly three years from the date of execution.   The complainant brought the notice of the same to the opposite party only in the year 2002.  The Hon’ble High court of Judicature at Madras passed an direction dated 28.4.2000 to deposit 50% of Sale proceeds in the court on each and every subsequent sale and the suit is still pending.    The petitioner has not impleaded the land lord as necessary party with whom the respondent entered into a Joint venture agreement.  

7.     The complainant herein has not paid the full consideration.  The complainant has to pay a sum of Rs.1,04,012/- towards the balance of sale consideration, Rs.9,900/- towards S.G. Electrical works Rs.790/- towards P.George and Rs.1,500/- towards P.Veerendra Chordia as per the opposite party  letter dated 16.6.2002.  The opposite party respectfully states that without paying the consideration and by suppressing the materials facts the complainant has not right to file the above complaint and the complaint is liable to be dismissed.  

8.     In order to prove the averments of the complaint, the complainant has filed proof affidavit along with his evidence and documents Ex.A1 to Ex.A19 marked.  Proof affidavit of opposite party field and there is no documents marked on the side of the opposite party and also  Ex.C.1 and C.2 filed.

9.   At this juncture, the point for the consideration before this

        Forum is:  

 

1. Whether there is any deficiency of service on the part of the 

    Opposite party as alleged in the complaint?

 

2.  Whether the complainant is entitled to any relief as prayed for?

10. Point No.1

        According to the case of the complainant is that the opposite party being the builder has not completed the flat as per the terms of the agreement though the complainant has paid the entire cost price of the flat and also the workmanship in all aspects is very bad and also the quality of the construction is not on part with the specification mentioned in the agreement and further there is a clear short fall of 205 sq.ft in undivided share also to clear breach of agreement and thereby the complainant has suffered lot of mental agony and hardship due to the deficiency of service on the part of the opposite party.

On other hand, the allegations made in the complaint are all denied by the opposite party but at the same time, the short fall of 205 sq.ft in providing the undivided share,  has admitted by the opposite party.

11.      At the outset, the duty cast upon this Forum to consider as to whether the complainant has proved the allegations made in the complaint by means of relevant and documents and evidence.  First of all, on careful  perusal of the evidence of the complainant as well as the evidence of the opposite party, it is an admitted fact that there was memo of undertaking cum construction agreement between them for a residential flat measuring about 1631 sq.ft and the total consideration was fixed at Rs.13,68,825/-. The said MOU is marked as Ex.A1, the Ex.A.2 the sale deed was executed between the parties and the General Power of Attorney is marked as Ex.A.3 and the same are all admitted one. It is further seen from the documents Ex.A.4 to Ex.A.16 which clearly reveals that the fact about the defects as pointed out by the complainant and the same has been informed to the opposite party for rectifications. Moreover Ex.A.17, the Engineer Report produced by the complainant also clearly set-forth the damages and the un-finishing of certain works as per the specification mentioned in Ex.A.1 Memorandum of understanding cum Construction Agreement. In such circumstances, though the opposite party contended that the defects pointed out by the complainant are all baseless and in fact that, the complainant had suppressed all the material fact and actually in Ex.A4, the complainant admitted that the tiles used in all good quality but some are differing in size and the same only due to very negligible amount and it was rectified immediately by the opposite party at their costs. It is further stated by the opposite party that the flat was handed over to the complainant prior to 2001 and regarding the variations in respect of the un-divided share is only due to the typo-graphical error and the same was not noticed by both of parties and in this regard, the opposite party asked the complainant to wait till the disposal of the Civil suit which is pending before the High Court  of Judicature Madras, but the complainant has come forward this complaint and further it is directed by the opposite party that there is a balance of Rs.1,04,012/- due to the opposite party by the complainant.

12.    In these circumstances, it is crystal clear that as already pointed out that there is variations in allotting the UDS as alleged by the complainant and the same is admitted by the opposite party.   The reason stated by the opposite party, is the typical error which cannot be accepted. Similarly, no valid documents has been filed by the opposite party to say that there is a balance of amount of Rs.1,04,012/- from the complainant towards the consideration amount as per Ex.A.1, Memorandum of understanding cum Construction Agreement.  Not only that, no documents produced on the side of the opposite party to prove that the defects and damages noticed through the Engineer report have been rectified. Therefore, the value of the conveyance of lesser of land 205 sq.ft and the estimate cost price for rectifying the damages of Rs.4,86,107.34 can be accepted and thereby the deficiency of service on the part of the opposite party clearly proved. Thus the point No.1 is answered accordingly.

13. Point No.2:-

         As per the decision taken arrived in point No.1, the complainant is entitled for the estimate of cost towards damages for defects in the construction and conveyance of lesser undivided share of land at Rs.4,86,107.34 with interest at the rate of 6% p.a from the date of complaint i.e. 16.5.2003 to till the date of this order and reasonable compensation for causing mental agony due to the deficiency in service on the part of the opposite party with cost. Thus the point No.2 is also answered accordingly.

       In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to pay a sum of Rs.4,86,107.34 (Rupees Four Lakhs Eighty Six Thousand One Hundred and Seven and Thirty Four Paise) with interest at the rate of 6% p.a. from the date of complaint i.e.16.5.2003 till the date of this order towards damages for defects in the construction and conveyance of lesser undivided share of land of 205 sq.ft and to pay a compensation of Rs.10,000/-(Rupees Ten Thousand only) for causing mental agony due to the deficiency of service on the part of the opposite party and with cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant.

         The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a till the date of payment.

              Dictated by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  20^th  day  of  December 2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1          4.8.1998     Copy of Memorandum of understanding cum Construction

                                         Agreement

Ex.A.2                   21.9.1998   Copy of Sale Deed

 

Ex.A.3                   20.8.2001   Copy of Power of Attorney

 

Ex.A.4                   21.11.2001 Copy of letter sent by complainant to opposite party

 

Ex.A.5                   14.12.2001 Copy of reply sent by opposite party

 

Ex.A.6                   27.12.2001 Copy of letter sent by Complainant

Ex.A.7                   2.1.2002     Copy of letter sent by opposite party

 

Ex.A.8                   12.1.2002   Copy of letter sent by complainant

 

Ex.A.9                   23.1.2002   Copy of letter sent by complainant

 

Ex.A.10       2.2.2002     Copy of letter sent by opposite party

 

Ex.A.11       4.2.2002     Copy of letter sent by opposite party

 

Ex.A.12       28.2.2002   Copy of letter sent by complainant

 

Ex.A.13       30.3.2002   Copy of letter sent by complainant

 

Ex.A.14       28.5.2002   Copy of letter sent by complainant

 

Ex.A.15       12.6.2002   Copy of letter sent by complainant

 

Ex.A.16       26.7.2002   Copy of letter sent by complainant

 

Ex. A.17      22.10.2002 Copy of Engineers Report

 

Ex.A.18       28.10.2002 Copy of legal notice sent by complainant

 

Ex.A.19       30.10.2002 Copy of Acknowledgement Card

 

Opposite parties side Documents :   ..Nil..

 

Court’s Exhibits:

 

Ex.C.1         07.2.2012   Copy of Engineer’s report

 

Ex.C.2           -              Copy of Photos

 

MEMBER-I                        MEMBER-II                             PRESIDENT.