Date of Filing:       13.05.2016

                                                                                                                       Date of Disposal:  28.03.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU.  J. JUSTIN DAVID, M.A., M.L.,                      .…. PRESIDENT

                   TMT.      K. PRAMEELA, M.Com.,                               ….. MEMBER-I

                   THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.,       ..… MEMBER-2

CC No.23/2016

TUESDAY, THE 28^th   DAY OF MARCH 2019

M.Suresh Babu,

Son of P.Madavan Nair,

Flat No.305, D -Block,

Shri Krisshna’s Brindavan Apartments,

No.1, Moogambigai Nagar,

First Main Road,

Nerkundram, Chennai -600 107.                                              ……Complainant.

                                                                       //Vs//

1.M/s. Shri Krisshna Builders and property,

   Developers (P) limited,

   Represented by its Managing Director,

   Mr.Nandakumar.

2.Mr.Nandakumar,

   Managing Director,

   M/s.Shri Krisshna Builders and property,

   Developers (p) limited,

   Devapragasam Trade Centre, Madura Garden,

   New No.15, Poonamallee High Road,

   Maduraviyal , Chennai -600 095.

3.Mr.M.C.Raju,

   S/o.Late Chidambaram,

   Aged about 47 years

   No.9/2, Subramaniapuram First Street North,

   Thilagar Nagar, Karaikudi 623 002.

4. A.Rajendran,

    S/o.Mr.Adaikkan,

    Aged about 53 years,

    No.20/377, Selliamman Koil Street,

    Sheik Abdullah Nagar, Virugambakkam,

    Chennai - 600 092.                                                            …..Opposite parties.

The complaint is coming upon before us finally on 08.03.2019 in the presence of M/s.Bharanivel Raaj counsel for the complainant and M/s.K.Bhaskar, Counsel for the 1^st and 2^nd opposite parties and 3^rd and 4^th opposite parties were set ex-parte for non appearance before this forum and upon hearing arguments and perused the documents and evidences this forum, delivered the following:-

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite parties for seeking direction to allot covered car park area along with the approved drawing, to hand over the handing over letter to the complainant, to get electricity consumption card in the name of the complainant, to get property tax assessment from the corporation of Chennai in the name of the complainant for the flat, to get the water tax assessment in the name of the complainant, to provide drinking water facility to the complainant’s flat, to provide soft water for the bath room and toilets and also to pay a sum of Rs. 4,00,000/- to complete the incomplete work and to carry out all the repairs specified in the schedule and to  pay a sum of Rs.10,00,000/- for delay in handing over of the flat and for mental agony to the complainant due to the deficiency in service on the part of the opposite parties.

2.The brief averments of the complaint is as follows:-

The 3^rd and 4^th opposite parties are the co-owners of the property in the premises bearing No.1, Moogambigai Nagar 1^st Main Road, Nerkundram, Chennai -17, comprised in survery Nos.156/1, 156/2, 156/3 and 156/4 Nerkundram village, Ambattur Taluk, Thiruvallur District. The 1^st and 2^nd opposite parties have promoted the land owned by the 3^rd and 4^th opposite parties under the joint venture scheme, in the proportion of 60:40 (60% to the 1^st and 2^nd opposite parties and 40% to the owners of the land jointly).  The complainant had purchased the share of the 3^rd and 4^th opposite parties, the specifications are not typed in the construction agreement signed by the complainant and the opposite parties. The second, third and fourth opposite parties have represented and offered to sell one of the flats allotted to the 3^rd and 4^th opposite parties bearing flat No.305, in the D-Block, Third floor, measuring to extent of 1186 square feet for a total sale consideration of Rs.41,51,000/- which includes the cost of the land for the undivided interest in land to an extent of 607.232 square feet.  The complainant had accepted the offer and agreed to purchase the flat on the condition that the possession of the flat has to be handed over to the complainant within one month from the date of agreement.  The 2^nd opposite party had demanded a sum of Rs.2,00,000/- as additional payment for the covered car parking and a sum of Rs.75,000/- towards the electricity deposit and other expenses for getting electricity connection to the complainant’s flat in the complainant’s name.  The complainant had paid a sum of Rs.75,000/- towards the corpus funds. The 2^nd opposite party wanted the complainant to make the payment immediately and get the sale deed and the construction agreement registered.  Believing the representations made by the opposite parties, the complainant parted away with the sale consideration for the undivided interest in land amounting to a sum of Rs.18,21,696.00/- Third and fourth opposite parties executed the deed of sale bearing document No.7922/2014 dated 0112.2014 registered before the office of the sub registrar, Virugambakkam, Chennai.  The 2^nd opposite party simultaneously wanted the complainant to enter into an agreement for construction and the same was executed on 01.12.2014 between complainant and the opposite parties and registered as document bearing No.7921/2014 dated 01.12.2014 and registered before the office of the sub –Registrar, Virugambakkam, Chennai.  The total agreed cost of construction was Rs.23,29,304.00/-.  The specifications mentioned in the book let handed over to the complainant and it was agreed that the 2^nd opposite party would complete the work and hand over possession of the flat by January 2015.  In spite of the firm commitment to hand over the flat during January 2015, the opposite parties have failed to keep their promise and there was no sign of completing the construction till June 2015.  On 12.7.2015 though the 2^nd opposite party claims that he has handed over the possession of the flat the following documents were not provided to the complainant. (1) handing over letter and full satisfaction letter for receipt of the total consideration, non issue of the car parking allotment letter together with approved drawings in spite of additional payment of Rs.2,00,000/-, electricity assessment, name change not done and electricity consumption card not issued, in spite of the payment of Rs.75,000/- made by the complainant  to the 1^st and 2^nd opposite parties, property tax assessment name change and order in the name of the complainant,  water tax and consumption card in the name of the complainant was not handed over to the complainant by the 2^nd opposite party.  After taking possession of the flat the complainant was shocked to observe that the opposite parties have used substandard materials in the construction of the flat and no adhered to the quality standards which had been promised by the opposite parties agreement. The construction was incomplete and water was leaking in the pipe lines, which runs to the master bed room and stinking smell emanated from the bed rood and the bath room which was virtually made them unusable.  The opposite parties have used only low quality wood for the main door of the complainant’s flat that too fixed without using sufficient screws. The materials used for windows are sub-standard and also not durable.  All the sanitary items used are also low quality material.  The electrical wiring and fitting are carried out with low quality material, grill doors are not fixed properly.  There is leakage in the pipe due to poor plumbing work and low quality material.  In spite of taking Rs.2,00,000/- as an additional payment for covered car parking, the car park area has not yet been allotted and ear marked.  The opposite parties have not provided sufficient drinking water facilities till date.  The quantity of water supplying through the R.O. plant is totally insufficient for a family.  The transformer provided in the complainant’s Block is not functioning properly.  Water seepage in the bath room and the complainant has notices cracks in the wall of the bed rooms.  Though apartment owner’s association has been formed, the building maintenance is not handed over to the association.  The complainant was constrained to forward a legal notice dated 28.07.2015 to the opposite parties calling upon the opposite parties to attend and carry out all the repairs and defects.  In spite of receipt of the legal notice the opposite parties have not attended the unfinished work or rectified the defects.  Hence this complaint.

3. The contention of written version of the 1^st and 2^nd opposite party is briefly as follows:-

 The opposite parties developed the property of the opposite parties 3 & 4 situated at Nerkundram village Chennai -95 under the joint venture agreements dated 07.01.2010 and 23.05.2011 in the ratio of 60:40.  As per the agreements, the opposite parties 3 & 4 are entitled 40% of the total built up area out of 80 flats constructed.  The complainant purchased the flat from the opposite parties 3 & 4 from their respective share and there was no direct contract between the complainant and 1^st&2^nd opposite parties. Further the complainant did not paid the cost of land or building cost directly to the 1^st and 2^nd opposite parties.  The 1^st and 2^nd opposite parties did not owe any service or obligation to the complainant.  Hence the opposite parties 1and 2 cannot be held liable for any of the allegation raised in the complaint. The complainant approached the 3^rd and 4^th opposite parties only after completion of the building.  The complainant upon physically inspected the flat, having satisfied over the standard and quality of the building constructed by 1^st and 2^nd opposite parties.  Thereafter only the complainant had decided to purchase the flat.  All the negotiations took place between the parties and the cost of the flat was paid to 3^rd and 4^th opposite parties and the 1^st and 2^nd opposite parties were not aware as to what transpired between them.  Hence the complainant does not have any locus standi to demand any service from the 1^st and 2^nd opposite parties.  The entire building was completed in June 2014 and also applied before CMDA for issuing completion certificate.  Immediately after completion of the building, the 40% share was handed over to the 3^rd and 4^th opposite parties in June 2014.  Subsequently, CMDA also issued building completion certificate on 28.11.2014.  Only under these circumstances, the complainant approached the 3^rd and 4^th opposite parties and paid the entire cost of the building to the complainant.  Since it is a new flat, the construction agreement was signed and registered along with the sale deed.  However there was no direct contract with 1^st and 2^nd opposite parties.  The complainant paid for the flat to the 3^rd and 4^th opposite parties which includes cost of the land as well as the building.  Further registering those document are statutory requirement, accordingly registered.  The building as stated supra its completion was over long back and the 1^st and 2^nd opposite parties have obtained building completion certificate on 28.11.2014, it was constructed with all specification stated in the brochure as assured.  It was ready for occupation when the complainant approached the opposite parties.  The flat was handed over to the complainant immediately upon final payment to the 3^rd and 4^th opposite parties.  The flat was delivered in time and there is no delay on the part of the 1^st and 2^nd opposite parties.  Further regarding car parking, electricity name change and card, property tax assessment name change, water tax name change and care are liability of the 3^rd and 4^th opposite parties.  As assured the electricity connection, was provided and it is the duty of the complainant to name transfer by approaching the concern authorities by furnishing the copies of the sale deed and construction agreement.  Further the payment of Rs.75,000/- is towards corpus fund for the upkeep and maintenance of the flat.  The same is deposited in bank and will be transferred to the association on its formation and that has got nothing to do with the services connection of electricity or other connection.  The building was constructed with quality materials, and complied with all the standards norms for the buildings.  Further, the specification stated in the broacher were fulfilled and the building was completed in every aspect and the completion certificate stands as testimony to it.  As assured, the 1^st and 2^nd opposite parties provided all quality materials right from teak wood to tiny screws.  The main door frame is teak wood as assured likewise all other woods were used as stated in the broacher for windows and it is denied that the windows are uneven in size.  Likewise all sanitary items, electrical items, plumbing materials and other materials were of ISI standard and quality.  Further covered car parking was provided to the complainant by the 3^rd and 4^th opposite parties.  Sufficient drinking water was provided to the complainant’s flat with R.O. plant of adequate capacity.  The 1^st and 2^nd opposite parties cannot be blamed or for salinity of the water.  Regarding the functioning of electricity transformer the complainant has to approach the electricity board.  The complainant is not a consumer against the opposite parties.  Hence the claim against the opposite parties is totally denied, baseless and misconceived.

4. In order to prove the case, on the side of the complainant, the proof Affidavit submitted as his evidence and Ex.A1to Ex.A12 were marked.  While so, on the side of the 1^st and 2^nd opposite parties proof Affidavit filed as their evidence and Ex.B1 to Ex.B2 were marked. Further written arguments filed and oral arguments also adduced on both sides. Further the 3^rd and 4^th opposite parties were set ex-parte for non appearance before this forum.

5.At this juncture, the point for consideration before this Forum is:-

1) Whether there is any deficiency in service on the part of the opposite parties as alleged in the complaint?

2) Whether the complainant is entitled for compensation for delay in handing over the flat and cost of proceedings from the opposite parties?

3) Whether the complainant is entitled for other reliefs claimed in the complaint?

4) To what other reliefs, the complainant is entitled?

6. Point Nos.1and 2:-

The complainant in the complaint and in the proof affidavit alleged that the complainant had purchased the undivided share in the land from the 3^rd and 4^th opposite parties for Rs.8,21,696/-on 01.12.2014, that the complainant entered into an agreement for construction on 01.12.2014 with the opposite parties for construction of a flat for Rs.23,29,304/-.  The 2^nd opposite party agreed to hand over possession of the flat by January 2015 but the 2^nd opposite party came forward to hand over the possession of the flat on 12.07.2015.  There is delay in handing over the flat to the complainant and the same caused mental agony to the complainant.

7. The 1^st and 2^nd opposite parties contended in their written version and in the proof affidavit that the complainant did not paid neither the cost of the land nor the building directly to the 1^st and 2^nd opposite parties and the 1^st and 2^nd opposite parties did not owe any service or obligation to the complainant, that the complainant approached the 3^rd and 4^th opposite parties only after completion of the construction and on physical inspection of the flat, having satisfied over the standard and quality of the building constructed by 1^st and 2^nd opposite parties.  Thereafter only the complainant had decided to purchase the flat, that the entire building was completed in 2014 and the completion certificate also issued by the CMDA on 28.11.2014, that the flat was delivered in time and there is no delay on the part of the 1^st and 2^nd opposite parties.

8. The 1^st and 2^nd opposite parties entered in to a joint venture agreement with the 3^rd and 4^th opposite parties on 07.01.2010.  Ex.B1 is the copy of joint venture agreement executive between the opposite parties 1 to 4.  As per joint venture agreement the 3^rd and 4^th opposite parties owns 40% of the flat and 1^st and 2^nd opposite parties were given 60% of the flat.  The 1^st and 2^nd opposite parties completed the construction work of the flat before 28.11.2014.  Ex.B2 is the completion certificate issued by the CMDA, Chennai dated 28.11.2014.  In Ex.B2 it is stated as follows:-

This is to certify that M/s.Shri Krishna Builders & Property Developers Pvt. Ltd., (GPA of Thiru. Raju & Rajendran) have construction stile floor +4 floors residential building with 80 dwelling units at Moogambigai Nagar 1^st main road in S.NO.156/1,2,3 &4 of Nerkundram village, Chennai, sanctioned vide P.P.No.B/Spl.Bldg./124A to F/2011 in the letter No.BC1/15020/2010 dated 18.04.2011.  It is inspected and observed that the building has been completed as per approved plan and satisfies the norms for issue of completion certificate approved by the Monitoring committee.  Accordingly completion certificate is issued for the above construction in C.C.No.EC/Central/240/2014 dated 28.11.2014  therefore the 1^st and 2^nd opposite parties completed the construction work of the flats before 28.11.2014.

9. The complainant had purchased the flat allotted to the 3^rd and 4^th opposite parties.  Ex.A4 is the copy of the sale deed dated 01.12.2014.  As per Ex.A4 the complainant had purchased 40% land of undivided share from the 3^rd and 4^th opposite parties on 01.12.2014.  Ex.A5 is the copy of the construction agreement dated 01.12.2014 entered into between the complainant and opposite parties.  The complainant is the purchaser of the flat and the opposite parties 1and 2 are the builders and also the 3^rd and 4^th opposite parties are owners of the land.  They entered in the construction agreement on 01.12.2014.   As per the Ex.A5 the 1and 2^nd opposite parties being the builders agreed to complete the construction work within one month from 01.12.2014.  Further as per caules 22 of the agreement the party of the second part shall complete the construction of the residential flat within two months from the date of agreement (01.12.2014). Therefore the 1^st and 2^nd opposite parties had agreed to complete the construction of the flat before 31.01.2015.  According to the complainant, the opposite parties has not handed over the building within the stipulated time and handed over the building only in the month of July 2015.  On the other hand the 1^st and 2^nd opposite parties contended that the flat was fully constructed before purchase by the complainant on November 2014 and there is no delay in handing over the possession of the flat to the complainant.  Ex.A2 is the copy of the letter written by the 1^st and 2^nd opposite parties to the complainant on 06.07.2015.  In Ex.A2 it is written as follows:- we are happy to invite you to the meeting on 12^th July 2015 at 3.00 p.m. at Shri Krisshna’sBrindavan, Nerkundram, Chennai -600 107, in regards to the following agendas.

1) Handing over of your flats,

 2) Discussion of maintenance to the association,

3) Kindly do not consider about the individual complaints on meeting.  Hence the 1^st and 2^nd opposite parties invited the complainant for a meeting to be held on 12.07.2015 regarding handing over the flats.  Therefore it is crystal clear that the flat was not handed over to the complainant till 12.07.2015.  The opposite parties agreed to complete the construction of the flats before 31.01.2015 but the opposite parties did not hand over the flats within time. Hence there is delay in handing over the flat to the complainant. The opposite parties have not followed the terms of agreement mentioned in the construction agreement and the same caused mental agony and financial loss to the complainant.  Therefore the complainant is entitled for reasonable compensation and cost. Point nos.1 and 2 are answered accordingly.

10. Point No.3:-

The complainant has prayed that this forum to pass an order against the opposite parties to allot covered car park along with the approved drawing,  to hand over letter to the complainant, to get electricity consumption card in the name of the complainant, to get property tax assessment from the corporation of Chennai in the name of the complainant, to get the water tax assessment in the name of complainant, to provide drinking water facility to the complainant’s flat, to provide soft water for the bath room and toilets.  With respect of allotment of car parking there is no specific clause in agreement for allotment of car parking between the complainant and the opposite parties in the agreement.  Further there is no documents on the side of the complainant to prove that the complainant had paid Rs.2,00,000/- for allotment of car parting  and therefore the complainant is not entitled an order for allotment of car parking.  With respect to hand over the possession letter, the complainant is already in possession of the flat.  The complainant purchased the completed flat and also paid a sum of Rs.38,500/- on 15.10.2014 for doing additional construction work in the complainant’s flat.  Ex.A3 is the copy of the receipt for payment of Rs.38,500/- .  The complainant paid extra cost of Rs.38,500/- on 15.10.2014 for additional alternation work and thereafter the construction of the flat completed before October 2014 and  the flat also handed over to the complainant during July 2015.  Therefore the question of handing over of possession letter does not arise.

11. With respect to getting electricity consumption card, property tax assessment from the corporation of Chennai, water tax assessment in the name of the complainant, the complainant has to take steps to apply before the concerned authorities and also the opposite parties has to assist the complainant for getting electricity consumption card, property tax assessment in the name of the complainant.  Therefore this forum finds no reason to grant the above relief in favour of the complainant.

12. With respect to provide drinking water facility, to provide soft water facility for bath room and toilet, already a flat owners association has been formed.  Ex.A11 is the copy of the payment of maintenance charges for the month of April 2015 and May 2015 issued by the 1^st opposite party.  The complainant had paid a total sum of Rs.2610/-towards maintenance charges for the month of April and May 2015.  Further the complainant clearly narrated in Para No.9 of the complaint that the apartment owner’s association has been formed, therefore after forming the flat owner’s association, the maintenance of the flat is to be done by the association, it is the duty of the association to provide drinking water facility and soft water facility for bath room and toilets of the complainant’s flat as per the bye-laws of the association.  The complainant has not added the association as a party in the complaint.  Therefore the complainant is not entitled for above relief claimed in the complaint.

13. The complainant entered into an agreement with the opposite parties 1 to 4.  The opposite parties 1 to 4 jointly and severally are liable to hand over the possession of the flat to the complainant within the stipulated time, but the opposite parties failed to hand over the flat within the stipulated time and therefore the opposite parties 1 to 4 jointly and severally liable to pay compensation and cost of proceedings to the complainant. Thus the point No.3 is answered accordingly.

14. Point No.4:-

In the result, this complaint is allowed in part.  Accordingly, the Opposite Parties 1 to 4 jointly and severally are directed to pay a sum of Rs.20,000/- (Rupees Twenty thousand only) towards compensation for causing mental agony due to the deficiency in service on the part of the opposite parties and also to pay a sum Rs.10,000/-(Rupees Ten thousand only) towards cost of this litigation to the complainant.  With respect to other reliefs claimed in the complaint is dismissed.

The above amount shall be payable by the opposite parties 1 to 4  within two months from the date of receipt of the copy of this order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum on this 28^th March 2019.

MEMBER-II                                          MEMBER-I                                          PRESIDENT

List of document filed by the complainant:-

List of document filed by the 1^st and 2^nd opposite parties:-

        Sd-                                                Sd-                                                         Sd-

MEMBER-II                                  MEMBER-I                                          PRESIDENT.