Date of filing : 15.4.2019

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

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

                                  Thiru.R.VENKATESA PERUMAL                     ::      MEMBER

 CC. No. 65/2019

                                                        DATED THIS THE 29^TH  DAY OF MARCH 2023

B.Dineshkumar,

S/o S.Baskar,

No.70, A3 G1, Mullai Apartment,

Selva Nagar, Varadharajapuram,

Mudichur, Chennai – 600 048                                               ..Complainant

                                            Vs

M/s Framework Infrastructure Private Limited,

Rep.by its Managing Director,

S.Jaganathan,

No.42, 6^th Avenue, RWD Palm,

Babu Nagar 3^rd Main Road,

Medavakkam, Chennai 600 100                                         ..opposite party

Counsel for the complainant            : M/s I. Stalin Simion Selvamani

Counsel for the opposite party        : M/s S.Murugeswari

    This complaint having come up for final hearing before us on 29.3.2023 and hearing the arguments of complainant upon perusing the material records submitted by bothsides and this Commission made the following:-

ORDER

Thiru. R VENKATESAPERUMAL, MEMBER

       The present complaint was filed by the complainant praying to direct the opposite party to refund the amount of Rs.33,50,000/- along with 24% interest, Rs.10,00,000/- towards compensation in refunding the above amount and Rs.50,000/- towards cost of the complaint.   

1.       The case of the complainant is that on seeing the advertisement made by the opposite party regarding construction of apartments with building approval, the complainant approached the opposite party for purchase of a double bedroom residential apartment and had entered into a sale agreement dated 12.6.2017.  The said construction agreement was to purchase a flat measuring to an extent of 915 sq.ft in 1^st floor along with undivided share of 370 sq.ft to be builtup in the vacant site bearing plot No. 99, measuring 2490 sq.ft in survey No. 104/1B in Krishna Nagar-III situated at Varadharajapuram village, Sriperumpudur Taluk, Kancheepuram District. As per the agreement, the total consideration is  Rs.30,13,500/- and the complainant had paid an advance amount of Rs.2,00,000/- and agreed to pay the balance amount of Rs.28,13,500/- as per the payment schedule mentioned in the agreement on obtaining their loan approval from bank. As per the sale agreement the complainant agreed to purchase the undivided share of 370 sq.ft for a total consideration of Rs.5,55,000/- and paid an advance amount of Rs.50,000/- and the balance amount of Rs.5,05,000/- to be paid at the time of approval of the title clearance by the  bank.  The complainant along with his brother applied for bank loan on 15.6.2017 by submitting agreement entered  with  the builder to the State Bank of India, Egmore Branch.  The bank has sanctioned home loan of Rs.34,75,000/- to the complainant and his brother on a condition to repay the same at Rs. 26,854/- in 360 equal monthly installments from 10.3.2018 with 8 months moratorium. The opposite party had promised to hand over the possession of the property after completing the construction as per approved building plan within six months from the date of construction agreement i.e., on or before 23.12.2017. Whileso the bank has debited Rs.33,50,000/- in the complainant’s bank loan account.

2.         Whenever the complainant approached the opposite party regarding completion of the apartment, the opposite party postponed the same by saying some reason. Whileso the complainant received a notice from High Court in W.P.No. 13688/2018 in which the complainant has been added as 9^th respondent and came to know that the opposite party had violated the approved building plan with complete deviation, the  High Court had granted an interim injunction restraining the opposite party from putting up any further construction in the above said site and the said writ petition is still pending. Likewise the Kundratur Panchayat Union had issued a stoppage notice vide letter bearing Na.ka No. 3310/2018/A3 dated 11.5.2018 to the opposite party followed by locking and sealing and demolishing notice, but the opposite party did not take any action either to remove the deviation or to restore the construction work as per approved building plan. As per the complainant the opposite party has cheated the complainant by making false representation. As per the complainant, there is no possibility to get the building approval for the property even in the future. Hence the complainant had sent a legal notice on 14.3.2019 but the same was returned with the postal endorsement ‘refused’ on 18.3.2019. Hence the complainant had agreed to execute the cancellation deeds to cancel the construction agreement and sale deed.

3.       According to the complainant since there is no possibility of completing the construction as per the agreement, the opposite party is liable to repay the amount paid by the complainant. Hence the present complaint is filed against the opposite party.

4.       Resisting the case of the complainant the opposite party has filed a version stating that the opposite party is engaged in building construction and civil works as a builder and contractor to execute civil work as per the requirement of their clients for the past 10 years. They have purchased a plot bearing plot No.99, measuring to an extent of 2490 sq.ft in the layout named Krishna Nagar III at Varadharajapuram village, Kancheepuram District. The opposite party intended to develop housing complex in the said plot and prepared a plan and submitted to the local authority for approval. The complainant approached the opposite party for purchase of a double bedroom residential plot as available in the plan and paid token advance and entered into a  sale agreement with the opposite party on 12.6.2017.  The flat is situated at 1^st floor measuring an extent of 915 sq.ft along with an undivided share of 370sq.ft for a total consideration of Rs.30,13,500/-. The complainant has paid an advance amount of Rs.2,00.000/- and agreed to pay the balance amount of Rs.28,13,500/- as per the payment schedule mentioned in the construction agreement, on obtaining loan approval. The complainant agreed to purchase the undivided share of 370sq.ft for a total consideration of Rs.5,55,000/- and paid an advance amount of Rs.50,000/- and promised to pay the balance amount at the time of approval of title clearance by bank. The complainant paid the 1^st installment of loan, amount of Rs.25 lakhs to the opposite party on 23.6.2017 and on receiving the said amount the opposite party had registered undivided share of land in the office of the Sub-Registrar, Padappai. The construction work of the building was started immediately after issuance of approved building plan by the competent authority within six months. In total, the opposite party received Rs.33,50,000/- as per agreement.  The opposite party availed short term loan from a private party to complete several projects including this project. The 3^rd party financier Mr.T.Ashok created dispute and obtained stay from Hon’ble High Court, Madras not to proceed with the construction in which the complainant has been added as 9^th Respondent with an allegation that the building was constructed by violating  approved building plan. Due to the stay granted by the High court of Madras, the opposite party could not availed electricity connection in time in spite of completing the entire building ready for occupation. The opposite party compromised the matter with the financier and arrived at conclusion to solve all the disputes and ready to hand over the said flat to the complainant with a delay of 7 months. This delay is due to stay of the court. Therefore there is no deficiency of service on the part of the opposite party and thus sought for dismissal of the complaint.

5.      In order to prove the case, the complainant, along with proof affidavit, has filed 12 documents and the same have been marked as Ex.A1 to A.12. proof affidavit of opposite party closed.

We have heard the learned counsel appearing on complainant’s side and perused the documents. 

6.       Points for Consideration:

Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties as alleged by the complainant ? if so for what relief the complainant is entitled to?

7.       POINT:

The case of the complainant is that on seeing the advertisement made by the opposite party regarding construction of apartments with building approval, the complainant approached the opposite party for purchase of a double bedroom residential apartment and had entered into a sale agreement.  The said construction agreement was to purchase a flat measuring an extent of 915 sq.ft in 1^st floor along with undivided share of 370 sq.ft to be built in the vacant site. As per the agreement, the total consideration is of Rs.30,13,500/- As per the sale agreement the complainant agreed to purchase the undivided share of 370 sq.ft for a total consideration of Rs.5,55,000/- The complainant along with his brother applied for bank loan on 15.6.2017 and submitted the agreements entered with the opposite party to the State Bank of India, Egmore Branch.  The bank has sanctioned home loan of Rs.34,75,000/- to the complainant and his brother on a condition to repay the same at Rs. 26,854/- in 360 equal monthly installments from 10.3.2018 with 8 months moratorium. The opposite party had promised to hand over the possession of the property after completing the construction as per approved building plan within six months from the date of construction agreement i.e., on or before 23.12.2017. Whileso the bank has debited Rs.33,50,000/- in the complainant’s bank loan account. The complainant received a notice from Hon’ble High Court in which the complainant has been added as 9^th respondent and came to know that the opposite party had violated the approved building plan with complete deviation, the Hon’ble High Court had granted an interim injunction restraining the opposite party from putting up any further construction in the above said site and the said writ petition is still pending. Likewise the Kundratur Panchayat Uniion had issued a stoppage notice to the opposite party followed by locking and sealing and demolishing notice, but the opposite party did not take any action either to remove the deviation or to restore the construction work as per approved building plan. Hence, there is no possibility to get the building approval for the property even in the future. The complainant is also agreed to execute the cancellation deeds to cancel the construction agreement and sale deed.

8.       In  the above factual background we are of the opinion that the opposite party have committed deficiency in service and unfair trade practice by indulging in deviation of the approved housing plan.  Hence  the complainant should be compensated. It is evident that the complainant had paid Rs.33,50,000/- to the opposite party. Since we have come to the conclusion, there is a deficiency of service and unfair trade practice on the part of the opposite party by indulging in deviation of the approved housing plan, he have ordered to refund Rs. 33,50,000/- with 9% interest and Rs.2,00,000/- towards compensation for mental agony and Rs.10,000/- as litigation expenses.

    In the result,

1. The complaint is allowed in part.
2. The opposite party is directed to refund a sum of Rs.33,50,000/- along with interest at the rate of 9% p.a from the date of filing of this complaint i.e, 15.4.2019 till the date of this order and Rs.2,00,000/- towards compensation for mental agony and Rs.10,000/- as litigation expenses.  

    R  VENKATESAPERUMAL                                                      R SUBBIAH     

                MEMBER                                                                   PRESIDENT

DOCUMENTS FILED ON THE SIDE OF COMPLAINANT :

Ex.A.1     copy of Sale agreement dated 12.6.2017

Ex.A.2     copy of construction agreement dated 12.6.2017

Ex.A.3     copy of construction agreement dated 23.6.2017

Ex.A.4     copy of sale deed dated 23.6.2017

Ex.A.5     copy of Bank Loan Sanctioned letter dated 23.6.2017

Ex.A.6     copy of demand draft dated 28.6.2017

Ex.A.7     copy of statement of Accounts dt 11.3.2019

Ex.A.8     copy of notice dated 11.5.2018

Ex.A.9     copy of notice dated 9.6.2018

Ex.A.10   copy of locking and sealing and demolition notice dated 9.7.2018

Ex.A.11   copy of legal notice dated 14.3.2019

Ex.A.12   copy of legal notice returned dated 18.3.2019

Opposite party’s side document  : Nil

R  VENKATESAPERUMAL                                                          R SUBBIAH     

                MEMBER                                                                   PRESIDENT