Tamil Nadu

StateCommission

CC/64/2017

M.Karthikeyan - Complainant(s)

Versus

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

M/s. N.Varadha Rajan

01 Sep 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                        PRESIDENT

               TMT. S.M.   LATHA  MAHESWARI,                                      MEMBER  

 

C.C.No.64/2017

WEDNESDAY, THE 01^st DAY OF SEPTEMBER 2021.

 

                                                                        Complaint filed on: 13.04.2016      

                                                                        Orders Pronounced on: 01.09.2021

M. Kartrhikeyan,

S/o. Mr. S. Muthukumaran,

No.37A, First Cross Street,

Srinivasa Nagar, Kolathur,

Chennai – 600 099. 

 

Represented by his Power of Attorney

Mr. S.Muthukumaran,

No.37A,  First Cross Street,

Srinivasa Nagar, Kolathur.

Chennai – 600 009.                                                                          Complainant

 

• Vs   -   

 

1.    M/s. Marg Properties Limited.,

       Represented by its Managing Director,

       (Formerly known as M/s. Marg Properties Private Limited.,)

       Having its Registered Office at

           “ Marg Axix” No.4/318, Rajiv Gandhi Road,

       (Old Mahabalipuram Road) Kottivakkam,

       Chennai – 600 041. 

 

2.    M/s. Marg Business Park Private Limited.,

       Represented by its Manazging Director,

       Having its Registered Office at “Marg Axix”,

       No.4/318,  Rajiv Gandhi Road,

       (Old Mahabalipuram Road), Kottivakkam,

       Chennai – 600 041.                                                                   Opposite Parties     

           

Counsel for the Complainant        :  M/s. N. Varadharajan,  Advocate.    

Counsel for the Opposite Parties   :  M/s. B.R. Shankaralinkgam, Advocate.  

             This complaint is coming before us for final hearing today, on 01.09.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following,

ORDER

HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT (Open Court).    

 

1.          This complaint has been filed by the complainant under section 17, r/w section 12 of the Consumer Protection Act, 1986 against the opposite parties for directions to the opposite parties  to refund a sum of Rs.41,77,236/- together with interest at the rate of 24% per annum from 01.07.2014 till the date of complaint amounting to Rs.16,70,894/- and future interest at the rate of 24% per annum from the date of complaint till the date of realization to the complainant or in the alternative, to direct the opposite parties to deliver the completed Apartment with promised amenities to the complainant within the time stipulated by this Commission together with damages at the rate of 40,000/- per month from 01.07.2014 till the date of delivery of the apartment to the complainant ,  to direct the opposite parties to pay the complainant a sum of Rs.18,00,000/- as compensation for deficiency in service committed by the opposite parties which caused mental agony and torture to the complainant and to direct the opposite parties to pay the complainant a sum of Rs.50,000/- as costs of the complaint. 

2.         The gist of the complaint averments are as follows;-   The case of the complainants is that with a view to own a residential flat in the property comprised in Survey No.6/1A1 (part), 6/1A2B (part), 6/1B1A, 6/1B2, 8/1A (part) , 8/1B (part) 8/1C1/ and 8/1C2 measuring 3.24 Acres situated at Kazhipattur Village, Chengelpet Taluk,  Kancheepuram District owned by the 2^nd opposite party and developed by the 1^st opposite party,   the complainant had entered into a sale agreement on 10.12.2012 with the 2^nd  opposite party for the purchase of undivided share of 691 sqft of land in the above property and simultaneously had also  entered into a  Construction Agreement dated 10.12.2012 with the 1^st opposite party for construction of two bedroom flat bearing No.111 measuring 1160 sqft including common areas in the 1^st  floor in Block C together with one stilt car parking and one open car parking at the flat building premises known as “ Pushkara” .  The total cost for undivided share of land and building was fixed at Rs.46,10,218/- out of which a sum of Rs.12,49,200/- is the consideration towards the undivided share of land and balance amount of Rs.33,61,018/- is towards the cost of the flat and the said amount has to be paid by the complainant according to Annexure A1 mentioned in the construction agreement, dated 10.12.2012. In fact, the 1^st opposite party and the 2^nd opposite party are sister concerns and they have been construed as one party in respect of the sale of the above Apartment to the complainant. Following the above two agreements, the complainant had purchased the undivided share of 694 sqft in the said land under the sale deed, dated 05.04.2013 registered as Document No.4535 of 2013 at SRO, Thiruporur from the 2^nd opposite party by fully paying the sale consideration of Rs.12,49,200/- towards the cost of undivided share of land.   As per the clause 8 of the sale agreement dated 10.12.2012, the opposite parties had specifically agreed to complete and deliver the constructed flat by June 2014. Till June 2014, the complainant has paid Rs.41,77,236/- which is nearly 90% of the total cost to the opposite parties but they have not delivered the flat till date in spite of repeated demands. Further, on 26.08.2015 a sum of Rs.2,46,205/- was paid to the opposite parties.  In spite of the payments of all these amounts, the opposite parties have not shown any progress but on the other hand abandoned the construction work.  In fact, the period fixed by the opposite parties for delivery of the flat had expired on June 2014 itself.  Even after receipt of 90% of total apartment costs, the opposite parties have not delivered the flats as promised by them which amounts to deficiency in service on the part of the opposite parties. Hence, the complainant had preferred this complaint before this Commission claiming the reliefs as stated supra.   

3.     The opposite parties have filed a written version resisting the complaint allegations wherein they have contended inter alia that the complaint is not maintainable before the Consumer Commission since the claim made by the complainant will not fall within the purview of the Consumer Protection Act.  Due to global recession/slow down in the economy including IT Industry that caused drastic reduction in booking of the Flats which impacted very badly on the development of its projects. Furthermore, there were labour problems, shortage of basic raw-materials used for construction activities apart from global recession which totally leads to delay beyond the control of the opposite parties.  Apart from that other prospective buyers like the complainant had also defaulted their payment schedule. Further, the Force Majeure clause which reads as follows;- “ Name of the parties to this Lease Deed shall be liable for any failures or delays in performing its obligation under this Lease Deed, if such failure or delay is caused by conditions beyond its control including but not limited to acts of God, Government restrictions, statutory permission, wars, insurrections, riots, floods, earthquakes, fires, epidemics, or any other cause beyond the control of such party and all such obligations shall stand suspended and/or kept in abeyance until status quo ante is restored”. But, the complainants herein sought for cancellation of  agreement and refund of the amount and hence there is no consumer and service provider relationship between the parties and the present proceedings before this Commission for alleged deficiency in service is not at all maintainable. Moreover, there is no deficiency in service committed by the opposite parties. The opposite parties did not have any intention to prolong the project since every day delay will hamper their ongoing project due to the escalation of the cost of materials, labour etc.,.. Thus,  the opposite parties sought for dismissal of the complaint. 

4.        To prove their case, the complainant has filed the proof affidavit reiterating the averments made in the complaint along with documents which were marked as Exhibits A1 to A9. Though the opposite parties have filed their proof affidavit no documents were marked on their side. 

5.          When the matter was taken up for hearing, on the side of the complainant an additional written argument was filed stating that they have purchased the land from the 2^nd opposite party and entered into a construction agreement with the 1^st opposite party but they have failed to deliver the flat on or before 30.06.2014, that is the date stipulated for delivery of the completed flat with amenities provided under the sale agreement dated 28.02.2013. Further, the complainants state that during the pendency of this complaint and after filing of written arguments, the opposite parties delivered the Flat on 30.09.2018 without providing any infrastructures as agreed by them under the construction agreement such as swimming pool, open car parking, water source, OSR, development, Outdoor Children’s play area, Landscape Garden, Fountain, Swings, Amphitheatre, Barbecue Corner, Water Treatment Plant, Water front view Deck from Block terrace.  Hence, now in view of change in circumstances the prayer for delivery of possession has become infructuous, however, the complainant is entitled for the other relief since there was an inordinate delay in delivery of possession of the Flat. Further, the complainant has also submitted that he had purchased the said flat on the hope that he would get good returns by letting it out to the prospective tenants by availing huge loan from the bank for which he was paying interest.  Since the delivery was not made by the opposite parties on 30.06.2014 as agreed, the complainant is unable to let out the flat portion for rent and thereby the complainant is deprived of the monthly income of Rs.40,000/- for which the opposite parties are liable to pay compensation and accordingly the opposite parties are to be directed to pay Rs.40,000/- per month from 01.07.2014 till the date of delivery of the flat.

6.       Heard the submissions made by both sides and perused the materials available on record.  Keeping in mind the submissions made on either side, we have carefully gone through the materials available on record. Since we have discussed the facts in detail above, we refrain from reiterating the same any further in this complaint and only the facts which are germane are discussed hereunder.

7.       Having taken into consideration of all the facts of the case, we are of the opinion that the reasons assigned by the opposite parties in their written version for non-delivery of the flat as agreed by them in the construction agreement, are not sustainable since the said defense are not proved by the opposite parties in the manner known to law.  Hence, the complainant is entitled for the relief as prayed for in the complaint except the claim made in clause (a) of the prayer column as we find the possession of the flat was handed over to the complainant only during the pendency of the complaint.  Further, he is eligible for the damages from 01.07.2014, i.e., the date on which the delivery of the possession of the flat should be given to the complainant.  According to the complainant, he was eligible for damages at the rate of Rs.40,000/- per month from 01.07.2014 till the date of delivery of the flat and as per the construction agreement since the opposite parties had not handed over the possession of the flat on 30.06.2014 as agreed by them.  Regarding the above claim, we are of the opinion that there is no basis for fixing of Rs.40,000/- per month as damages.  As per the agreement in clause 8, they are entitled for compensation at the rate of Rs.5/- per sq.ft per month to the purchasers until delivery of the possession, if it exceeds a grace period of 3 months from the expected date of delivery of possession i.e., on June 2014 till the date of delivery. Therefore, in our view the complainant is entitled to get Rs.5/- per sq.ft per month from June 2014 till the date of delivery of the flat. 

8.         In the result, the complaint is allowed in part and the opposite parties 1 & 2 are directed jointly and severally to pay a sum of Rs.2,00,000/- as compensation for deficiency in service committed by them and mental agony and torture suffered by the complainant and also to pay damages of Rs.5/- per sq.ft per month from 01.07.2014 till 30.09.2018 with costs of Rs.25,000/- to the complainant.

         All the above directions shall be complied within two months from the date of receipt of copy of this order, failing which the amounts mentioned above shall carry interest at the rate of 6% per annum from the date of default till the date of realization.         

     

 

 

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                              PRESIDENT. 

 

DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANTS

 

Ex  A1  13.03.2008   General Power of Attorney  executed  by the complainant in favour

                              of Muthukumaran.   

Ex  A2   10.12.2012   Sale agreement between the 2^nd OP and the  complainant.

Ex  A3   10.12.2012   Construction agreement between the 1^st OP and the complainant

Ex  A4   05.04.2013   Sale deed by the 2^nd OP in favour of the complainant

Ex  A5   13.11.2012   Series are the payment receipts issued by OPs to the 

        to 27.08.2015    to the complainants

Ex  A6   03.08.2015    Opposite parties Customer individual payment receipt

Ex  A7   07.03.2016    Complainant’s advocate notice sent to the opposite parties

Ex  A8                       Postal acknowledgement due signed by the 1^st opposite party

Ex  A9                       Postal acknowledgement due signed by the 2^nd opposite party

DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES

 

NIL

 

 

 

 

 

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                              PRESIDENT. 

 

 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Sep/2021