Tamil Nadu

StateCommission

A/119/2016

R. Sathish Raman - Complainant(s)

Versus

M/s. Le Royal Constructions - Opp.Party(s)

V. Shankar

17 Mar 2023

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

BEFORE        Thiru. S. KARUPPIAH                           PRESIDING JUDICIAL MEMBER

                      Thiru. R. VENKATESAPERUMAL        MEMBER

 

F.A. No.119/2016

(Against the Order dt.01.06.2016 in C.C. No.27/2012 on the file of the

                                                   D.C.D.R.C., Chennai (South))      

 

DATED THE 17^th  DAY OF MARCH 2023

 

R. Sathish Raman,

S/o. Mr. Ramaswamy,

Flat 6, B-3, 1^st Floor,

1^st Cross Street, Bharati Nagar,

Thiruvanmiyur,

Chennai – 600 041.                                                             .. Appellant/ Complainant.

- Versus -

Le Royal Construction Pvt. Ltd.,

Represented by its Managing Director,

No.60/34, II Floor, South Usman Road,

T. Nagar,

Chennai – 600 017.                                                      .. Respondent / Opposite party.

 

Counsel for Appellant/ Complainant          : M/s. V. Shankar

Respondent / Opposite party                       : Paper publication effected called absent

          

This appeal coming before us for final hearing today on 16.03.2023 and on hearing the arguments of the appellant and on perusing the material records, this Commission made the following order in open court :-

ORDER

Thiru. S. KARUPPIAH, JUDICIAL MEMBER             

          By not satisfying with the award passed by the District Commission, Chennai (South) dt. 01.06.2016, in C.C. No.27/2012 the complainant has preferred this appeal.

1.         The factual background culminating  in to  appeal is as follows:-

The complainant entered into a Construction Agreement on 30.03.2011 with regard to the Flat No.6/B3 measuring about 1100 sq. ft.   The total construction cost is Rs.60,50,000/- including the land value.  Apart from this, the complainant agreed to pay a sum of Rs.65,000/- towards TNEB Deposit, cable charges and metro water charges.  It was also agreed by the complainant to pay a sum of Rs.1,50,000/- for car parking.  The Apex Court clearly laid down that the car parking is a common amenity and no separate sale consideration to be obtained.  However, the complainant paid the entire sale consideration amount.   But the opposite party failed to produce the Metro Water Deposit receipt for the building and also they have failed to provide a car parking.   Hence, the complaint is filed seeking to handover the Metro Water Deposit receipt and to allot car parking and also to refund a sum of Rs.1,50,000/-, to pay a compensation of Rs.5,00,000/- and cost of the proceedings. 

2.         The opposite party filed his written version and additional written version admitted the execution of Construction Agreement. The opposite party further contended that as per the Agreement, it includes car parking area, metro water Deposit, Sales Tax totally Rs.63,73,420/-.   But the complainant paid only Rs.62,23,420/- .  The opposite party had handed over the building on 29.12.2011 itself.  The complainant failed to pay the entire sale consideration and the opposite party while tendering the amount it was refused by the complainant.  Now, no car parking space is available and the opposite party also constructed the extra modifications in the balcony for which, the complainant is liable to pay the amount.   Hence, they prayed to dismiss the complaint. 

3.         Before the District Commission, the complainant filed proof affidavit and the opposite party seems to be not filed proof affidavit and Ex.A1 to Ex.A9 marked on the side of the complainant.    After perusing the entire materials, the District Commission directed the opposite party to refund a sum of Rs.1,00,000/- with 12% interest and to pay the cost of Rs.5,000/-.

4.         The opposite party did not prefer any appeal from this Judgement.   But the complainant alone filed this appeal on the following grounds stating that the District Commission to consider the non-handing over of metro water receipt and also, car parking is a common amenity which was not provided to the complainant.  Particularly, in para No.13 of the appeal grounds, the appellant has stated that the Commission below could have done complete justice by directing the respondent to allot the car parking and concurrently directed the appellant to remit a sum of Rs.50,000/- to the respondent.  The appellant has prayed to allow the appeal and modify the award of the District Commission.  In the appeal, there was no representation for the respondent and we perused the written arguments filed by both sides as well as the oral arguments of the appellant.  

5.         Now, the point for consideration is:-

Whether the appeal has to be allowed and the award is to be modified?

6.         On point:-

As already stated, the complainant and the opposite party entered into an agreement which is marked as Ex.A2.  In Ex.A2, it has been clearly admitted and agreed by both sides that apart from the total consideration of Rs.60,50,000/-, the complainant is liable to pay a sum of Rs.1,50,000/- towards car parking and Rs.65,000/- towards Metro Water Deposit and also to pay 2% Sales Tax.  It is the case of the complainant that he paid the entire amount of Rs.63,73,420/- towards the car parking, Sales Tax etc.  But as per Ex.A5 and Ex.A6, Bank Statements of the complainant he paid only Rs.62,23,420/-  that is he was in shortage in payment of Rs.50,000/-.

7.         So, admittedly towards car parking he did not pay the entire Sale Consideration of Rs.1,50,000/-.   When he did not pay the sale consideration, he is not entitled to get the car parking.  However, the payment made by the complainant is not to meet any specific purposes.   Particularly when he paid Rs.62,23,420/- and the balance of Rs.50,000/- cannot be apportioned to any specific payment or amenity provided by the opposite party.  So, the payment was not for specific purpose.  The contention of the opposite party that there was a shortage in payment only towards car parking consideration is unacceptable.  The opposite party in his written version one time admitted that he is ready to handover the "car parking area"  to the complainant or to refund a sum of Rs.1,00,000/-.   But the complainant refused to receive the said refund of Rs.1,00,000/- from the opposite party.   The opposite party also, subsequently alleged that he made some additional modifications for which, the complainant still liable to pay a sum of Rs.1,00,000/-.No prudent builder ready to return the consideration he had received when the customer really liable to make additional payment for additional constructions.  The contradictory versions clearly proved the callouse attitude of the opposite party in either allotting a car parking to the complainant or refunding the payment. Moreover, whenever a person purchase or enter into a Construction Agreement in an apartment system  provision of car parking is a part and parcel of the Construction Agreement.  And claiming extra sale consideration for car parking whether legal or illegal is out of purview since, the complainant agreed to pay Rs.1,50,000/- for availing car parking area in the apartment.  So, the purpose of purchasing and the purpose of enjoyment of the apartment could not be fulfilled without availing a car parking area which is a necessary and mandatory amenity for which, of course the opposite party is entitled to receive the agreed payment.   We found, the complainant is still liable to pay a sum of Rs.50,000/- towards the entire payment of Rs.63,73,420/-.   The District Commission though it fit to order refund of Rs.1,00,000/- to the complainant but, we feel that justice will only be done as requested by the appellant to provide him with a car parking by directing the complainant to pay the balance amount of Rs.50,000/-. 

8.         At this juncture, we want to ascertain whether the car parking is now available to be provided to the complainant.    For which, the appellant took out a Commission and marked additional documents as Ex.A10 to Ex.A12 as per the Order in                      CMP.No.192/2016. Moreover, the opposite party in his counter affidavit filed in        CMP.No.163/2016 made a admission as if he is ready to provide car parking if the complainant paid Rs.50,000/-.  Ex.A12, Commissioner Report also revealed that car parking is still available for the complainant as there in no occupancy in the building.  Considering the report of the Commissioner, considering the absence of the respondent in the final stage of the appeal and considering the readiness of the appellant / complainant to pay a sum of Rs.50,000/- we are inclined to interfere with the award of the District Commission.  In lieu of the award, we modified the same and directed the complainant to pay a sum of Rs.50,000/- within two months from the date of receipt of this order to the opposite party and on such payment, he is entitled to provision of a car parking in the above apartment.  With regard to other reliefs the District Commission did not grant the same and we also confirm this finding.

9.   In the result

1. This appeal is allowed.
2. The Order dt.01.06.2016 of the District Consumer Disputes Redressal Commission, Chennai (South) made in C.C. No.27/2012 is hereby set aside and the appellant is directed to pay sum of Rs.50,000/- (Rupees Fifty thousand only) to the respondent within two months from the date of receipt of the copy of order and on such payment, the respondent is directed to provide a car parking to the appellant as agreed by him in the Agreement.
3. No costs.

 

 

MEMBER                                                                               PRESIDING JUDL.MEMBER

   (RVP)                                                                                                       (S.K.)

 

 

List of Additional documents filed on the side of the appellant before this Commission:-

 

Ex.A10	08.08.2006	Copy of Approved Construction Plan vide PPA No.04942 dt.08.08.2006 & BL No.04792 dt. 23.08.2006
Ex.A11	26.08.2016	Copy of receipts (2 nos.)
Ex.A12	30.08.2016	Copy of Inspection Report

 

 

MEMBER                                                                               PRESIDING JUDL.MEMBER

   (RVP)                                                                                                       (S.K.)

 

KIR/TNSCDRC/Chennai/Orders/March/2023.