Tamil Nadu

StateCommission

CC/61/2016

C. Krishnan - Complainant(s)

Versus

M/s. New Chennai Township Pvt Ltd., Rep. by its Managing Director, Marg Axis & anr. - Opp.Party(s)

G. Vijaykumar,

24 Dec 2021

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE        Hon’ble Thiru. Justice R.SUBBIAH                          -   PRESIDENT

                         Tmt. Dr. S. M. LATHA MAHESWARI                        -   MEMBER

 

C.C. No.61/2016

DATED, THE 24^th DAY OF DECEMBER 2021

Mr. C. Krishnan,

S/o. Mr. S. Chakkaravarthy,

No.15, Vanathi Nagar,

Koothapakkam,

Cuddalore – 607 002.                                                                             .. Complainant.

                                                       - Versus -

1. New Chennai Township Pvt . Ltd.,

Represented by its Managing Director,

“Marg Axis”, No.4/318, Rajiv Gandhi Salai,

Kottivakkam,

Chennai – 600 041.

 

2. M/s. State Bank of India,

RASMECC,

Represented by its Assistant General Manager,

No.208, Anna Salai, (Vignesh Complex),

Puducherry – 605 001.                                                                        .. Opposite parties.

 

Counsel for Complainant                           : M/s. G. Vijaya Kumar

Counsel for Opposite parties 1 & 2           : M/s. B.R. Shankaralingam

 

This complaint having come up for final hearing before us on 24.12.2021  and on hearing the arguments of complainant and upon perusing the material records submitted by both parties this Commission made the following order in the open Court:-

ORDER

 Dr. S.M. LATHA MAHESWARI   : MEMBER

            Present complaint was filed by the complainant alleging deficiency in service on the part of the opposite parties along with a prayer to direct the opposite parties

1. to refund the amount of Rs.13,12,822/-  paid towards the one-time lease rental with interest at the rate of 24% p.a.,
2. to pay a sum of Rs.28,625/- towards charges relating to registration of Lease Deed, deposit of title deed, service charges paid by the 2^nd opposite party together with interest at the rate of 24% p.a.
3. to pay a sum of Rs.5,00,000/- towards compensation, Rs.5,00,000/- for the delay in handing over the possession of the apartment &
4. to pay a sum of Rs.2,00,000/- towards compensation for the mental agony suffered by the complainant with cost of the proceedings.

1.         Brief facts necessitating the filing of complaint:

            The complainant was allured by the news paper advertisements made by the opposite parties who are reputed builders for the announcement of a residential project called “Marg Swarnaboomi”.  The complainant visited the site of the opposite parties and after believing the promises made by them had booked an apartment in the project “UTSAV” at “Marg Swarnaboomi”, Flat No.201in Block ‘H’ in the Second Floor measuring an extent of 1009 sq. ft. super built up area for an one-time lease rental for 99 years at a total cost of Rs.16,73,500/-.  Pursuant to which, the complainant had paid an advance amount of Rs.50,000/- on 01.07.2011.  It was informed that the fully constructed apartment would be handed over to the complainant during December 2012.   The complainant obtained loan from the 2^nd opposite party for a sum of Rs.13,38,000/- at the rate of 10.5% p.a. out of which, Rs.10,59,450/- was disbursed to the 1^st opposite party.  Thus, out of the total consideration of Rs.16,73,500/- an amount of Rs.13,12,822/-  which is approximately 80% of total sale consideration was paid to the 1^st opposite party.  On 30.01.2012 a Lease Deed was executed by the 1^st opposite party in favour of the complainant.   By various communications the 1^st opposite party, informed the complainant that the handing over possession was post-poned from December 2012 to February 2013 and then to June 2013 citing various reasons such as shortage of manpower, raw material, recession etc.,   Subsequently, on 31.03.02014, a fresh commitment was given that the flat would be handed over during March 2015.  Though the complainant continuously followed the progress in construction till June 2013, no noticeable development was seen in the stage of construction.  Thus on 22.06.2014, the complainant requested the 1^st opposite party to refund the amount but there was no response from the 1^st opposite party.  In the mean time, the 2^nd opposite party had initiated proceedings under SARFAESI Act against the complainant for non-payment of installment amount.   Thus, the complainant was put to untold hardship by the act of the 1^st opposite party and therefore after issuance of legal notice the present complaint was filed for the reliefs as mentioned above.

2.         The opposite parties filed written version admitting the booking of the flat by the complainant, however it was contented that the complaint for cancellation of the lease agreement and refund of the amount was not maintainable before the Consumer Forum as their existed no jural relationship of consumer and service provider between the complainant and the opposite parties. It was submitted that only the Civil Court has the Jurisdiction to try the above case.  Further, the opposite parties cited force majeure clause for the delay in completing the construction as to the non-availability of labour and raw materials.  They also cited that the arbitration clause in the agreement was to be given priority and hence the complaint was liable to be dismissed as they have not committed any deficiency in service or unfair trade practice as they have invested a huge amount in purchase of the land and their sole intention was to complete the project at the earliest.

3.         The complainant filed his proof affidavit and submitted documents marked as Ex.A1 to Ex.A15.  The opposite parties filed their proof affidavit but no documents were marked on their side.

4.         Points for Consideration:

1. Whether the complaint is maintainable before the Consumer Commission?
2. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties as alleged by the complainant?
3. If so, for what relief the complainant is entitled to?

5.         Point No.1 :

Proved facts called out from the documents submitted by complainant:-

1. The complainant in response to the advertisements made by the 1^st opposite party had agreed to book a flat No.201 for 99 years lease in ‘UTSAV’  in Block ‘H’ in the Second Floor measuring an extent of 1009 sq. ft. super built up area by paying an advance amount of Rs.50,000/- for an one-time lease rental for 99 years at the cost of Rs.16,73,500/-;
2. That the Booking Form for the apartment No.201 Block H, Second Floor was marked as Ex.A1;
3. That the advance payment receipt issued by the 1^st opposite party dt.05.07.2011was marked as Ex.A2;
4. That the confirmation letter issued by the opposite party dt.06.07.2011 was marked as Ex.A3;
5. That the payment receipts issued by the opposite party along with the payment request letter issued by the opposite parties marked as Ex.A4 & Ex.A5;
6. That the Deposit of Title Deed dt.29.02.2012 for the purpose of loan was marked as Ex.A6;
7. That the Lease Deed executed by the 1^st opposite party in favour of the complainant dt.30.01.2012 was marked as Ex.A7;
8. That the Agreement to Lease dt.11.08.2011 was marked as Ex.A8;
9. That the letter issued by the 1^st opposite party to the 2^nd opposite party and the Tripartite Agreement dt.09.01.2012 was marked as Ex.A9;
10. That the arrangement letter dt.24.01.2012 issued by the 2^nd opposite party with regard to the home loan for an amount of Rs.13,38,000/- was marked as Ex.A10;
11. That the Equitable Mortgage confirmation dt.28.02.2012 by the complainant to the 2^nd opposite party was marked as Ex.A11;
12. The SARFAESI notice under section 13 (2) dt.13.01.2015 was marked as Ex.A12;
13. That the mail communications by the complainant to the 1^st opposite party was marked as Ex.A13;
14. That the legal notice issued by the complainant to the 1^st opposite party dt.03.03.2015 was marked as Ex.A14;
15. That the reply notice sent by the 1^st opposite party dt.15.03.2015 was marked as Ex.A15;

That the complainant had filed the present complaint to direct the opposite parties to refund the total amount amounting to Rs.13,12,822/-  paid towards one-time lease rental, to pay a sum of Rs.28,625/- towards charges relating to registration of Lease Deed and Rs.5,00,000/- towards compensation, Rs.5,00,000/- for the delay in handing over, Rs.2,00,000/- towards compensation for the mental agony suffered by the complainant with cost of the proceedings.

6.         The 2^nd opposite party /Bank did not appear inspite of sufficient notice and hence they were made ex-parte. 

7.         Heard the learned Counsel for complainant.  Though the 1^st opposite party had filed written version, proof affidavit and written arguments, the Counsel for the 1^st opposite party did not adduce any oral arguments. In the written version, the 1^st opposite party had raised an issue with regard to the maintainability of the complaint as the transaction involved which is the subject matter of the complaint is lease.  It is contended by the 1^st opposite party that the Consumer Commissions has no jurisdiction to try a case involving lease and that the appropriate forum would be the Civil Court and thus prays for the dismissal of the complaint on the issue of jurisdiction. We are unable to accept the above contention, for the reason that once the agreement dated 11.08.2011 was executed between the parties and signed by the 1^st opposite party for the development of the project and leasing out the apartment for a period of 99 years to the complainant, the agreement derives the colour of “Development Agreement” and the jural relationship of ‘the Developer’ and ‘the Purchaser’ comes into existence between the parties and the agreed total payment of lease amount to be considered as ‘consideration’.  Hence, the issue with regard to the non-maintainability of the complaint before the Consumer Commission does not arise. The presence of arbitration clause in the development agreement is not a bar to file a complaint before Consumer Commission as held by various precedents of the Apex Court that the remedy provided under this Consumer Protection Act shall be in addition and not in derogation of the provisions of any other law for the time being in force.  Thus we answer point No.1 in favour of the complainant holding that the complaint is maintainable before the consumer commission.

8.         Point No.2 :-

From the admitted facts as mentioned above, we could see that the 1^st opposite party had issued alluring advertisement inviting public to purchase the apartments, the residential project called “UTSAV”  to be constructed  by them who is the builder and the complainant after visiting them and on seeing the model flat of the project had agreed to book a flat for 99 years lease in project ‘UTSAV’, Flat No.201, Block ‘H’, Second Floor measuring an extent of 1009 sq. ft. super built up area for an one-time lease rental for 99 years at the cost of Rs.16,73,500/- and the 1^st opposite party assured the complainant that the project would be completed within a period of 24 months.  The complainant in pursuance of the agreement has made the total payment of Rs.13,12,822/- on various dates out of the total one time lease rental amount of Rs.16,73,,500/-.  

9.         The 1^st opposite party for the delay in construction and handing over the property had cited the reason of ‘force majeur, i.e. due to global recession, labour problem, shortage of basic materials etc., which are beyond their control.  But they have not produced any material evidence in support of their contentions.  Hence, it was mere bald statements made by way of defence by the 1^st opposite party without any proof for the same.   As per Ex.A8, Agreement entered between the parties, the flat was promised to be handed over to the complainant within 24 months from the date of Agreement.  As per Ex.A5, the 1^st opposite party had given the Payment Receipts for the total amount paid by the complainant.  Thus, the 1^st opposite party had not denied the receipt of the amount.  Hence, they are legally obliged to construct and handover the apartment to the complainant as per the agreed schedule found in the agreement. Therefore failing to comply the terms as clearly found in the agreement after receipt of amount by citing irrelevant reasons clearly amounts to deficiency in service.  It is also seen that the 2^nd opposite party /Bank from which the complainant had availed loan had also, initialed SARFAESI Proceedings against the property for non-payment of loan amount by which the complainant was put to severe hardship by the act of the 1^st opposite party.   Thus we hold that the 1^st opposite party had committed clear deficiency in service and unfair trade practice and we answer point No.2 in favour of the complainant and as against the 1^st opposite party.

 

10.       Point No.3:-

As we have come to the conclusion that the 1^st opposite party has committed deficiency in service and unfair trade practice the complainant should be compensated in terms of money.   It is evident as per the payment receipts, Ex.A5, issued by the 1^st opposite party that they have received Rs.13,12,822/- from the complainant.  Thus complainant is entitled for refund of the said amount with interest at the rate of 18% p.a. from the date of complaint till realization.  Further, he is also entitled for a compensation of Rs.2,00,000/- for the mental agony and hardship suffered by him.  Cost of Rs.10,000/- is awarded to the complainant.  As there is no claim against the 2^nd opposite party was made by the complainant we hold that the 1^st opposite party had committed deficiency in service and liable to refund the amount received by them.  Thus, we answer point No.3 in favour of the complainants.

In the result, this complaint is partly allowed as follows :-

1. The 1^st opposite party shall refund the sum of Rs.13,12,822/- (Rupees Thirteen lakhs twelve thousand eight hundred and twenty two only) with 18% interest from the date of complaint till realization;
2. Compensation of Rs.2,00,000/- (Rupees Two lakhs only) for the mental agony & hardship;
3. Cost of Rs.10,000/- (Rupees Ten thousand only) towards litigation expenses. 

 

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH            

          MEMBER                                                                                          PRESIDENT

M,kList of Documents filed by the complainant:-   

Ex.A1		Copy of Booking Form
Ex.A2	05.07.2011	Copy of advance payment receipt along with the demand draft
Ex.A3	06.07.2011	Copy of confirmation letter issued by the opposite party
Ex.A4	13.09.2011	Copy of payment request letter (4 Nos.)
Ex.A5		Copy of payment receipts (6 Nos.)
Ex.A6	29.02.2012	Copy of Deposit of Title Deed
Ex.A7	30.01.2012	Copy of Lease Deed
Ex.A8	11.08.2011	Copy of Agreement to Lease
Ex.A9	09.01.2012	Copy of letter issued by the 1st opposite party to 2nd opposite party & Tripartite Agreement
Ex.A10	24.01.2012	Copy of arrangement letter issued by the 2nd opposite party
Ex.A11	28.02.2012	Copy of Equitable Mortgage Confirmation
Ex.A12	13.01.2015	Copy  of Section 13(2) notice issued by the 2nd opposite party
Ex.A13		Copy of mail communication by the complainant to 1st opposite party
Ex.A14	03.03.2015	Copy of legal notice issued by complainant
Ex.A15	15.03.2015	Copy of reply notice sent by the 1st opposite party

 

List of Documents filed by the opposite parties:-   

Nil

 

 

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH            

          MEMBER                                                                                          PRESIDENT