Tamil Nadu

StateCommission

CC/163/2014

O.R. Santhanakrishnan - Complainant(s)

Versus

M/s. Marg Properties Ltd., Rep. by its Chairman & Managing Director, GRK Reddy & anr. - Opp.Party(s)

Complt.-In person,

14 Nov 2017

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION CHENNAI.

 

        Present:   THIRU.K. BASKARAN                            PRESIDING JUDICIAL MEMBER.
                          THIRU.S.M. MURUGESSHAN               MEMBER

 

C.C.No.163/2014

TUESDAY THE 14th DAY OF NOVEMBER 2017.

 

                                                            Date of complaint filed        : 31.10.2014

                                                   Date of order pronounced    : 14.11.2017

 

 

Mr. O.R.  Santhanakrishnan

Old No.22/1 New No.49

Lazarus Church Road

Chennai – 600 028.                                                                               Complainant                                                                         

 

                                         Vs

 

1.    M/s. MARG Properties Limited.

       Represented by its Chairman & Managing Director

       Mr.GRK. Reddy

       4/318 – Rajiv Gandhi Salai

       Kottivakkam

       Chennai – 600 041. 

 

2.    MR.GRK REDDY

       Chairman & Managing Director

       M/s. MARG Properties Limited.

       4/318 – Rajiv Gandhi Salai

       Kottivakkam

       Chennai – 600 041.                                                                   Opposite Parties

 

 

Counsel for Complainant                 :  Complainant appeared -in-person

 

Counsel for Opposite Parties 1 & 2   :  M/s. B.R. Sankaralingam Advocate.

 

 

             This complaint coming before us for final hearing on 23.09.2017 and on hearing the arguments of both sides and on perusing the material records this Commission made the following:  

ORDER

THIRU.K. BASKARAN PRESIDING JUDICIAL MEMBER.

 

                This complaint was filed under section 17 of the Consumer Protection Act 1986 alleging deficiency in service in completing and handing over of the possession of the construction of flat claiming direction against the opposite parties to refund a sum of Rs.3171330/- together with interest at the rate 18% per annum from 03.04.2011 till 28.06.2014 and to pay Rs.500000/- as compensation for mental agony pain and suffering along with costs of Rs.25000/- to the complainant.   

1.         The complaint allegations in brief are as follows:   Pursuant to the advertisement effected by the 1^st opposite party the complainant had booked a flat in the project named “ Savithanjali “ located at Kelambakkam promoted by the opposite parties for a total cost of Rs.3950660/-  by paying Rs.100000/- as booking advance on 03.04.2011 and the 1^st opposite party had promised that possession of the flat would be delivered by September 2012; that thereafter the complainant had paid various sums on 8 occasions totalling Rs.3071330/- towards the cost of the construction of the said flat.  (Total payment comes to Rs.3171330/- including booking advance of Rs.100000/- already paid); that in spite of the said payment having been made by the complainant the complainant had not taken any effective steps in executing necessary documents nor initiated any steps to deliver the possession of the flat by September 2012 as promised and when the complainant approached the customer care section of the 1^st  opposite party who had assured that the delivery would be effected not later than December 2014 through email but to the shock and surprise of the complainant  the 1^st opposite party had on 17.04.2014 sent an email to the complainant informing that the delivery of the possession would be effected only in January 2016 ; that due to inordinate delay on the part of the 1^st opposite party in completing the project and handing over the possession of the flat within stipulated time as promised the complainant was no longer interested in purchasing flat and hence by a registered letter dated 11.07.2014 addressed to the 1^st opposite party informed that he was terminating the booking and requested the 1^st opposite party to refund the amount of Rs.3171330/- together with interest from 03.04.2011 till 28.06.2011 in addition to a sum of  Rs.500000/- towards compensation for mental agony pain and sufferings; that even after the said notice the 1^st opposite party had not complied with the demand of the complainant and hence this complaint seeking relief in the nature of direction to the opposite parties to refund the amount paid by the complainant with interest besides compensation of Rs.500000/- with cost of Rs.25000/-.

2.            The defence of the opposite parties as could be deciphered from the common written version filed by them would be as follows; - That there was no jural relationship of consumer and the trader/service provider between the parties in as much as there was no formal agreement entered into between the parties for the sale/purchase of the said flat.  Within 30 days from the date of booking the complainant had not come forward to execute the said document and as such there was no concluded contract between the parties and hence there was no question of any deficiency in service on the part of the opposite parties and hence this complaint is not maintainable; that the issue arising between the parties could be decided only by Civil Court after full trial and hence this complaint could not be maintained before this Commission;   In spite of this legal position still the opposite parties had no intention to delay the project at any point of time and that their intention was to complete the project at the earliest and to hand over the possession of the flats to the persons who had entered into contract and it was only due to Government policy regarding the approvals non-availability of raw-materials escalation in the cost of construction materials and want of man power unforeseen economical slow down. etc. the project could not be proceeded as per the schedule and the delay was due to this bonafide reason for which the opposite parties are not responsible and hence it could not amount to deficiency in service; that the construction of the floor in “ C “ block  was completed and plastering work was going on and they had planned to hand over the fully constructed flat from March” 2016  onwards to the buyers and the said proposal was also communicated to the complainant herein and as such the complainant is not entitled to any relief. 

3.          On the side of the complainant he has filed his proof affidavit and marked 39 documents as Exhibits A1 to A39 and on the side of the opposite parties proof affidavit of one Shri.G. Anbumani being an authorised signatory of the opposite parties was filed.   No document has been marked on the side of the opposite parties.    

4.        The points for consideration are as follows;-

           (1)   Whether the complaint is maintainable before this Consumer Commission?

           (2)   Whether there was any deficiency in service on the part of the opposite

                   parties?    

           (3)   To what relief the complainant is entitled?       

5.     Point Nos.1 & 2:-   The complainants case is that having been lured by the fancy advertisement of the opposite parties he had booked a flat admeasuring 1303 sqft super built area in the first floor of Block No.”C” of the project namely “Savithanjali”  located at Kelambakkam promoted by the opposite parties for a total cost of Rs.3950660/-by paying Rs.100000/- as booking advance on 03.04.2011 and at that time he was assured by the 1^st opposite party that possession of the flat would be delivered by September 2010 ; that pursuant to the said booking the complainant had paid a total sum of Rs.3171330/-  on various occasions but the opposite parties did not take any effective steps to execute necessary documents and to complete the construction of the project so as to hand over the possession of the same before the promised date namely September 2012 and as there was inordinate delay on the part of the opposite parties the complainant had terminated his booking and called upon the opposite parties to refund the amount paid by him together with interest and compensation for the mental agony suffered by him and as the same was not complied with the complaint came to be filed.  

6.           A perusal of the written version filed by the opposite parties would reveal that the opposite parties had not denied the factum of their promoting the said project “Savithanjali” and that of the complainants booking of a flat for a total cost of Rs.3950660/- by paying Rs.100000/- on  03.04.2011 as advance followed by various payments on 8 occasions totalling Rs.3171330/- and that the construction could not be completed and the possession of the finished flat could not be handed over to the complainant as  promised before September 2012 and the factum of the opposite parties sending an email to the complainant on 01.08.2013 to the effect that the delivery of the flat would be effected by the end of September 2014 and subsequently sending another email on 17.04.2014  informing the complainant that the delivery of the possession could be effected only by January 2016.  Hence we are of the opinion that these facts need not be proved by the complainant due to the implied admissions made by the opposite parties. Even otherwise the evidence adduced by the complainant in the shape of his proof affidavit and Exhibits A1 to A39 would prove the above stated facts. 

7.           Hence a combined reading of the complaint allegations defence in the written version proof affidavit of the complainant and the witness examined on the side of the opposite parties and also Exhibits A1 to A39 would show that the following facts have been proved by the complainant.  

                   (a)  That the opposite parties had launched a project under the name and style of “ Savithanjali “ at Kelambakkam village and having been fascinated by the advertisement published by the opposite parties the complainant had booked one flat measuring 1303 sqft super-built area with a selected car parking on the first floor in block No.” C “ for a total cost of Rs.3950660/- by paying Rs.100000/-as booking advance on 03.04.2011.

           (b)  That thereafter the complainant had requested the opposite parties through email to send the details of the documents pertaining to the plan approval but it was not complied with by the opposite parties and instead the first opposite party requested the complainant to make further payment and accordingly the complainant had made further payment of Rs.3071330/- on 8 occasions as evidenced by Exhibits  A3 A12 A21 A23 A27 and A29 A32 and A34.  

           (c)   That having received a substantial portion amount the opposite parties had not taken effective steps to complete the construction of the project for the purpose of handing over the possession to the respective buyers before the promised date namely September 2012 and hence the complainant contacted the office of the opposite parties and he was assured that the delivery of the flat would be effected before December 2014 vide an email dated 01.08.2013 and the delivery was not effected even before the said extended date and finally the 1^st opposite party sent an email dated 17.04.2014 informing the complainant that the delivery of possession would be effected only by January 2016.   

           (d)    Hence the complainant had sent a letter dated 11.07.2014 under Exhibit A38 to the opposite parties by and under which the complainant had terminated his booking and requested the opposite parties to refund the amount of Rs.3171330/-together with interest at 18% per annum and a sum of Rs.500000/- as compensation for mental agony and pain and suffering meted out to him.   

8.             Even though the complainant had booked the flat on 03.04.2011 as evidenced by Exhibit A1 and as admitted by the opposite parties they had not completed the construction till the date of filing of this complaint on 31.10.2014 even though they ought to have completed the construction and handed over the possession of the finished flat before September 2012.    

9.              The simple defence of the opposite parties would be that there was no formal contract regarding either the purchase of completed flat or for the purchase of undivided share in the land and for construction between the complainant and the opposite parties in this case and hence there was no jural relationship such as consumer and the service provider existing between the parties and as such the complainant cannot file a complaint under the definition of consumer and so the complaint filed by the non-consumer could not be maintainable before the Consumer Fora.  It is pertinent to note that the Consumer Protection Act 1986 does not say that the complaint can be filed by a consumer only if he had entered into a written agreement for availing the service from any service provider and if there is any agreement then it would give room for the complaint to prove the terms and conditions between the parties and the violation or breach of such terms and conditions by service provider which resulted in injury to the complainant so as to succeed in the complaint if the opposite parties had denied the transactions between the complainant and then it would be difficult for the complainant to establish the same in the absence of a formal contract.   But in our case the opposite parties had in clear and categorical terms in paragraph 4 stated that the complainant had booked a flat by signing booking form in respect of the said flat and made initial payments.  It is significant to note that the complainant had narrated the payments made by him to the opposite parties by giving details for each such payment which has not been denied by the opposite parties.  Hence it goes to show that pursuant to the booking of flat under Ex A1 document the complainant had made several payments totalling Rs.3177330/- including booking advance of Rs.100000/- towards costs of the flat.  We are at loss to understand as to why the 1^st opposite party went on receiving all the subsequent payments after booking under Ex A1 in the event of the  complainants failure to turn up and execute the relevant documents such as agreement of sale or agreement of construction etc..  Having received all the payments even without executing formal agreement of sale or agreement of construction between the parties the opposite parties cannot be now heard complaining that the complainant did not come forward to execute the formal documents in spite of instruction to do so.  Hence we are of the view that there was a contract between the complainant and the opposite parties for the sale of flat as described above for a total cost of Rs.3950660/-  and pursuant to that the complainant had paid a total sum of Rs.3171330/- to the opposite parties for which they had issued proper receipts.  Further having received the said huge sums towards cost of the flat the opposite parties had not taken effective steps to complete the construction of the project so as to hand over the possession of the same to the complainant before the promised date namely by September 2012.  The opposite parties could not complete the construction up to the date of complaint namely on 31.10.2014.  Further the opposite parties could not complete the construction even till the middle of 2014 which constrained the complainant to send a letter to the opposite parties terminating his booking of flat and requested the opposite parties to refund the amount paid by him together with interest and compensation.

10.           Hence we are of the firm opinion that the absence of any formal agreement between the parties does not cause any dent in the claim of the complainant. Further the above stated facts would definitely constitute and make out deficiency in service on the part of the opposite parties.

11.       Based on the discussions held above we hold that this complaint is maintainable and that there was deficiency in service on the part of the opposite parties and the points Nos.1 &  2 are answered in favour of the complainant.  

12.           Point No.3:- While answering the points No.1 & 2 we held that the opposite parties were guilty of deficiency in service in the matter of completing the construction of flat and handing over the possession of the same to the complainant as agreed.  Admittedly the complainant had paid a total sum of Rs.3171330/- and the 1^st payment was made on 03.04.2011 and the last payment was made on 12.01.2013.  The complainant had approached this Commission by way of this complaint after having waited for nearly 2 years from the date stipulated for handing over of the possession of flat.   As far as the opposite parties are concerned they had received a huge sum of Rs.3171330/- from the complainant and had utilised the same for their commercial purpose and hence we hold that the complainant is entitled to get refund of such sums together with interest at the rate of  12% per annum.  Further the inordinate delay on the part of the opposite parties in completing the construction and handing over the possession of the flat could have certainly caused mental agony and sufferings to the complainant for which also the complainant is entitled to receive compensation which if quantified at Rs.500000/- would in our view meet the ends of justice.  Further we hold that the complainant is entitled to get litigation expenses of Rs.10000/- from the opposite parties and this point is answered accordingly.   

13.           In the result the complaint is allowed and the opposite parties are directed to refund a sum of Rs.3171330/- with interest at the rate of 12% per annum from the date of payment till the date of realisation and also to pay a sum of Rs.500000/- as compensation for mental agony pain and sufferings to the complainant within 30 days from the date of receipt of copy of this order failing which the amount shall carry interest at the rate of 12% per annum from the date of default till the date of realisation with costs of Rs.10000/-.     

 

 

S.M. MURUGESSHAN                                                   K. BASKARAN                                                                 

       MEMBER.                                                       PRESIDING JUDICIAL MEMBER.  

 

ANNEXURE

Documents filed on the side of the complainants.

Ex   A1    03.04.2011    Booking Forum signed by the complainant and the opposite

                                   party        

Ex   A2    03.04.2011    Letter sent by the complainant to the opposite party enc losing

                                   cheque for Rs.100000/-.

Ex   A3    08.04.2011    Receipt issued by the opposite party to the complainant

Ex   A4    15.04.2011    Welcome letter sent by the opposite party to the complainant 

Ex   A5    19.04.2011    Email sent by the complainant to the opposite party

Ex   A6    24.04.2011    Email sent by the opposite party to the complainant

Ex   A7    25.04.2011    Email sent by the complainant to the opposite party

Ex   A8    26.04.2011    Email sent by the opposite party to the complainant

Ex   A9    11.05.2011    Email sent by the opposite party to the complainant

Ex A10    17.05.2011    Letter sent by the opposite party to the complainant

Ex A11    21.05.2011    Email sent by the opposite party to the complainant with

                                  attachment 

Ex A12    24.05.2011    Receipt issued by the opposite party to complainant

                                  acknowledging Rs.441725.00    

Ex A13    14.06.2011    Payment request letter sent by the opposite party to the

                                  Complainant

Ex A14   16.06.2011     Payment request letter sent by the opposite party to the

                                  Complainant

Ex A15   22.06.2011     Email sent by the opposite party to the complainant

Ex A16   24.09.2011     Email (2 Nos.) sent by the opposite party to the complainant

Ex A17   22.10.2011     Cost Break-up sent by the opposite party to the complainant 

Ex A18   24.10.2011     Email sent by the opposite party to the complainant

Ex A19   02.12.2011     Email with cost break-up sent by the OPs to the complainant

Ex A20   13.02.2012     Payment request letter sent by the opposite party to the

                                  Complainant

Ex A21   21.02.2012     Receipt No.875 for Rs.373537.00 issued by the opposite party

                                  to the complainant

Ex A22   22.05.2012     Payment request letter sent by the opposite party to the

                                  Complainant 

Ex A23   05.06.2012     Receipt NO.1386 for Rs.373537.00 issued by the opposite

                                   party to the complainant

Ex A24   25.06.2012      Email with attachment sent by the OPs to the complainant

Ex A25   06.07.2012      Email sent by the opposite party to the complainant

Ex A26   16.07.2012      Payment request letter sent by the opposite party to the

                                   Complainant

 

Ex A27   28.07.2012      Receipt No.1594 for Rs.378233/- issued by the opposite

                                   party to the complainant

Ex A28   17.08.2012      Payment request letter sent by the opposite party to the

                                   Complainant

Ex A29   30.08.2012      Receipt No.1812 for Rs.375885/- issued by the opposite

                                  party to the complainant   

Ex A30   15.10.2012     Payment request letter sent by the opposite party to the

                                  Complainant

Ex  A31   17.10.2012    Letter sent by the complainant to the opposite party along with

                                  cheque for Rs.371538/-

Ex  A32   18.10.2012    Receipt No.2030 for Rs.371538/- issued by the opposite party

                                  to the complainant

Ex  A33   03.01.2013    Payment request letter sent by the opposite party to the

                                  Complainant

Ex  A34   12.01.2013    Receipt No.2324 for Rs.378991/- issued by the opposite party

                                  to the complainant   

Ex  A35   01.08.2013    Payment request letter sent by the opposite party to the

                                  Complainant

Ex  A36   02.05.2014    Email sent by the opposite party to the complainant

Ex  A37   17.04.2014    Email sent by the opposite party to the complainant

Ex  A38   11.07.2014     Letter of demand sent by the complainant to the opposite party

                                  with proof of service   

Ex  A39                       Draft agreement for sale

Documents filed on the side of the opposite parties

Nil

 

S.M. MURUGESSHAN                                                   K. BASKARAN                                                                 

       MEMBER.                                                       PRESIDING JUDICIAL MEMBER.