Tamil Nadu

South Chennai

424/2010

G.Sreekanth - Complainant(s)

Versus

M/s. Kasi Housing and Development Ltd,Managing Director - Opp.Party(s)

R.Elango

05 Jun 2017

ORDER

                                                                        Date of Filing :   29.11.2010

                                                                        Date of Order :   05.06.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : 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. 424/2010

MONDAY THIS  5^TH   DAY OF JUNE 2017

G. Sreekanth,

S/o. G. Ranganathan,

Bharani Enclave,

G1, No.9, S.B.I. Officers Colony,

First Street, Arumbakkam,

Chennai 600 106.                                              .. Complainant

 

                                        ..Vs..

 

M/s. Kasi Housing and Development Limited,

Rep. by its Manaing Director,

Plot No.91 & 92 Jawaharlal Nehru Salai,

Ashok Nagar,

Chennai 600 082.                                                .. Opposite party.

 

 

Counsel for Complainant         :    M/s. R. Elango  

Counsel for opposite party      :    M/s. A. Arumugam   

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to deliver the flat bearing No.B, in second floor to an extent of 500 sq. ft. as per the construction agreement and also to pay a sum of 10,00,000/- as damages for hardship, inconvenience, harassment and mental agony and also to pay cost of the complaint.

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

         The complainant submit that he has purchased an undivided share of land from one Mr. K.Srinivasan represented his General Power of Attorney M/s. Sagar Constructions, Chennai on 5.11.2001.  The complainant further submit that  he entered into an agreement of construction with the opposite party for construction of his flat bearing No.B, in second floor, measuring an extent of  500 sq. ft.    There is no detailed payment schedule with the agreement.   But the complainant has paid the advance amount of Rs.2,14,414/- to the opposite party.   But  till the opposite party has not completed the construction. 

2.     Further the complainant contended that the opposite party has started their construction on their own convenient time and it is going even in the year 2010 for about eight years.  It is questioned by complainant on several occasions in oral and the opposite party immediately sent a false notice dated 1.7.2010 to the complainant by stating that they are very honest in work and service.   As per the construction agreement dated 29.1.2003 the complainant has paid a sum of Rs.2,14,414/- to the opposite party as advance and he has to pay only a sum of Rs.18,906/- and hence the complainant has  no chance to make any delayed payment.    The complainant has sent a suitable reply dated 19.8.2010 with correct particulars and he always ready to pay the balance.   The demand made in the notice of the opposite party i.e. non co-operation, price escalation to the complainant is total false.       As such the act of the opposite party clearly amounts gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

3. The brief averments in Written Version of  the opposite party    are as follows:

        The opposite party state that the opposite party denies all the allegations contained in the complaint except those which are specifically admitted herein and this opposite party puts the complainant to strict proof of each and every allegation.  The complaint is also filed beyond the period of limitation prescribed under the Consumer Protection Act.   It is true that the complainant has purchased an undivided share of land from one Mr.K.Srinivasan represented by his General power of attorney agent M/s. Sagar constructions on 5.11.2001 and later he entered into an agreement of construction on 29.1.2003 with the opposite party for construction of his flat, bearing No.B in Second floor, measuring an extent of 500 sq. ft.    In fact the construction was entered into between the complainant and the opposite party and in the construction agreement, the complainant was not paying the amount within the stipulated period and after several persuasion and demand, a part payment of Rs.2,14,414/- was made being the balance amount and the variation amount to be paid.  

4.     Further the opposite party submit that as per the construction agreement dated 29.1.2003 the complainant has paid a sum of Rs.2,14,414/- to the opposite party as advance and he has to pay a sum of Rs.18,906/- and hence the complainant has no chance to make any delayed payment is a factually incorrect statement.    The complainant has suffered mental strain, inconvenience, harassment and loss of reputation in not getting the flat as well as the service of the opposite party are also total defective and negligent in all ways are denied and is a misconceived statement.      Hence there is no deficiency in service on the opposite party and therefore this complaint is liable to be dismissed in limine.

5.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A6 marked.  Proof affidavit of opposite party  filed and no document marked on the side of the opposite party.  

6.   The point for the consideration is:  

 

1. Whether the complainant is entitled to deliver the flat No.B in

Second  floor measuring 440 sq. ft.  as per construction agreement as prayed for?

 

2. Whether the complainant is entitled to a sum of Rs.10,00,000/-

as compensation towards mental agony caused to the complainant and  deficiency of service committed by the opposite party with cost as        prayed  for ?

 

 

7.      POINTS 1 & 2:-

 

       Heard both  sides.    Perused the records.  Both parties admitted the construction agreement Ex.A2 in this case.   Admittedly as per Ex.A1 sale deed the complainant purchased an undivided share of land from one Mr.K.Srinivasan represented his General Power of Attorney Agent M/s. Sagar Constructions on 5.11.2001.    Thereafter the complainant and the opposite party entered into a bilateral agreement Ex.A2 for construction of flat No.B in second floor measuring 440 sq. ft. for a sum of Rs.2,33,320/- in which the complainant paid a sum of Rs.2,14,414/- as advance.   But till Ex.A3 legal notice  issued by the opposite party  construction has not completed and handed over the possession flat as agreed in Ex.A2 construction agreement.   The learned counsel for the complainant contended that as per the construction agreement the opposite party shall pay a sum of Rs.1500/- per month towards rent for the delay in construction and handing over the possession.   The opposite party has not paid any amount also, but issued notice Ex.A3 demanding a sum of Rs.12,85,586/- arbitrarily without any reason and against the agreement Ex.A2.   Immediately the complainant sent a reply and filed this complaint for deficiency of service committed by the opposite party and delivery of the possession  of the flat with compensation. 

8.       The learned counsel for the complainant further contended that the averments related to limitation raised by the opposite party deserves no importance because after the execution of Ex.A2 construction agreement, the opposite party sent  notice Ex.A3 demanding huge amount arbitrarily thereby the complainant is constrained to file this case.    For the question of limitation and cause of action is a bunch of facts,  in this case limitation starts immediately after issue of Ex.A3 legal notice by the opposite party against the agreement Ex.A2.   Further the learned counsel for the complainant’s contention regarding the arbitration proceedings initiated by the opposite party shall not infringed the rights of the complainant in this case solely based on deficiency of service.   The learned counsel for the complainant cited the decision reported in (2000) 5 Supreme Court cases in page No.294.

     C.  Consumer Protection Act, 1986 – Ss. 2(1)(c ), 12 14, 18 and 22 – complaint – Maintainability – Existence of an arbitration clause in the agreement, held, is no bar to the entertainment of complaint by the Redressal Agency under the Act as the remedy under the Act is in addition to the provisions of any other law – Arbitration Act, 1940, S. 2(a) – Arbitration and Conciliation Act, 1996, Ss 2 (1) (b) and 7  

 

The learned counsel further contended that the arbitration award was stayed by Hon’ble High Court no such document produced before this forum. 

 

9.     The contention of the opposite party is that there is no period prescribed in the construction agreement Ex.A2 the complainant has not paid the amount for construction properly within the relevant time but the opposite party admittedly received a sum of Rs.2,14,414/- on the date of agreement itself.  Keeping  the only balance amount of  Rs.19,000/-.  As per the construction agreement the said balance amount should be paid at the time of handing over the possession of the flat.   Hence the allegation that the delayed payment is not acceptable.   Further the learned  counsel  for  opposite  party  contended  that  after completing the  construction  the opposite party was ready to handing over the possession of the flat to the complainant, since the complainant turned   the  hostile  and has not paid escalation price of the construction cost, the opposite party was constrained to issue Ex.A3 legal notice to the complainant calling upon to pay a sum of Rs.12,85,586/- towards additional cost of construction with interest and to take possession of the flat.  Immediately the complainant sent reply stating that  only a balance amount of  Rs.19,000/- alone is pending as per the construction agreement and the opposite party shall pay a sum of Rs.1,500/- per month towards rent.   Further the opposite party contended that immediately after receipt of reply notice the opposite party has preferred arbitration proceedings as per condition stipulated in Ex.A2 construction agreement.  After detailed enquiry arbitrator passed award also in terms Ex.A3 legal notice arbitration directed to pay  the said amount of Rs.12,85,586/- with interest, but the opposite party has not produced any document to prove the said arbitration proceedings.  

10.     The learned counsel for the opposite party cited the decision reported in

I (2016) CPJ 552 (NC)

T. SRINIVAS & ANR

..Vs..

SRIJA CONSTRUCTIONS

 

Held that

 

Consumer Protection Act, 1986 – Sections 3 21(b) – Jurisdiction – Arbitration proceedings invoked – complaint – Maintainability – Arbitration petition was filed by petitioners prior to filing of consumer complaint – Two parallel proceedings cannot go on simultaneously – Complaint not maintainable”

 

In National Seed Corporation ..vs.. Madusudan Reddy, 2012 (2) SCC 506.

It was held

      “ The remedy of arbitration is not the only remedy available to a grower.  Rather, it is an option remedy.  He can either seek reference to an arbitrator or file a complaint under the Consumer Protection Act.  If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Protection Act.   However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act , 1996 Act.  Moreover, the plain language of Section 3 of the Consumer Protection Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. “

The learned counsel for the opposite party further contended that the claim of Rs.10,00,000/- towards compensation is imaginary and exorbitant.  Considering the facts and circumstances of the case, this forum is of the considered view that the opposite party is liable to deliver the flat No.B, Second floor to the complainant within one month and also to pay a sum of Rs.10,000/- towards compensation for mental agony and Rs.5,000/- as cost of the complaint and points 1 & 2 are answered accordingly.

          In the result, the complaint is allowed in part.  The opposite party is liable to deliver the complaint mentioned flat No.B, Second floor measuring 440 sq ft. to the complainant within one month from the date of this order i.e. 5.6.2017 and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony and Rs.5,000/- (Rupees Five thousand only) towards cost of the complaint 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 to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  5^th  day  of  June 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainants” side documents:

Ex.A1-  5.11.2001 - Copy of Sale Deed.

Ex.A2- 29.1.2003  - Copy of Construction Agreement.

Ex.A3- 1.7.2010    - Copy of legal notice by opposite party.

Ex.A4- 19.8.2010  - Copy of reply notice by complainant.

Ex.A5-         -       - Copy of Ack. card by the opposite party.

Ex.A6-         -       - Copy of Photography

Opposite party’s side document: -   

.. Nil..

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.