Tamil Nadu

South Chennai

CC/287/2014

R.Ganapathy Subramanian - Complainant(s)

Versus

M/s. Somasimara Relators Pvt Ltd. - Opp.Party(s)

Party in Person

18 Aug 2016

ORDER

   Date of Filing :   30.06.2014

                                                                      Date of Order :   18.08.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

                 DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

                

C.C.NO.287/2014

THURSDAY THIS  18^TH DAY OF AUGUST 2016

 

R. Ganapathy Subramanian,

No.1/584, Ramaniyam Auroville

Apartments,

Flat No.3G, Third Floor,

Thoraipakkam,

Chennai 600 097.                                          ..Complainant

                                        ..Vs..

 

1.  M/s. Somasimara Relators Pvt. Ltd.,

Rep. by its Director / Builder,

V.Jagannathan,

No.11/21,

Second Main Road,

Gandhi Nagar,

Adyar, Chennai 600 020.

 

2. Dr. N. Elavarasan,

S/o. Late V.Narayanasamy Nainar,

No.27, Junction Road,

Virudhachalam 606 001.                              ..Opposite parties    

 

 

For the Complainant         :   Party in person.          

For the opposite party-1   :   M/s. R.Usha Priya

For the opposite party-2   :   M/s. C.A.Anburaja & another      

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite parties to pay a sum of Rs.11,10,250/- as compensation for monetary loss, rental loss and sufferings of mental agony  to the complainant.

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that  he as a purchaser of the complaint mentioned flat has entered into tri-party agreement and agreement for construction of the flat together with sale of undivided share of land  dated 15.02.2012 with 1^st and 2^nd opposite parties who are the building constructor / promoter and owner of the land respectively.  The 2^nd opposite party as a vendor has also executed a registered sale deed for the undivided share of the land to the complainant.   Accordingly the total cost of the flat including the UDS and the indoor decoration of the said flat the complainant has paid a sum of Rs.63,00,000/-  to the opposite parties as mentioned in the complaint.  Though   the completion of construction of flat and handing over the same to complainant was agreed by the 1^st opposite party through the 2^nd  opposite party within six months from the date of signing the agreement,  after completion of construction as per the terms and specification mentioned in their agreement to the satisfaction of the complainant was handed over by the  opposite parties to the complainant on 01.06.2013.  As per the agreement the opposite parties have agreed to handover the complete constructed flat to the complainant within six months from the date of agreement  dated 15.02.2012 also adding  grace time of 3 months which falls on 15.11.2012, but within the said date they have not completed the construction and hand over the same to the complainant  and further even as agreed in the website communication not even handed over the possession of the flat as mentioned by the builder on or before 30.06.2012, even that promise of the opposite party have not observed but they have handed over the flat only on 31.05.2013, with delay of  11 months  which amounts to deficiency of service on the part of opposite parties which caused mental agony and hardship to the complainant.  As such the complainant has sought for a sum of Rs.11,10,250/- towards different heads like monetary loss, rental loss and sufferings of mental agony.  Hence the complaint.

Written Version of 1^st opposite party is  in briefly as follows:

2.     The 1^st opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The 1^st opposite party states that the 1^st opposite party is a reputed builder and promoter in Chennai.   The 1^st opposite party further states that the 2^nd opposite party intended to sell his allotted flat 3G.  The complainant came forward to purchase the said flat and as the flat though was completed was not handed over to the land owner only for want of service connection which was not possible without completion certificate from CMDA and hence the complainant initially entered into an agreement for construction of flat together with sale of undivided share of land wherein the 1^st opposite party also joined as one of the party confirming and agreeing to the terms of handing over of the flat.  Under the said agreement, the 1^st opposite party had agreed to construct and hand over as per the specifications agreed there under and upon the complainant providing confirmation for the payment of the entire consideration to the 2^nd opposite party.    The 1^st opposite party agreed to hand over the flat within six months from the date of signing the agreement for sale of undivided share of land and for construction of flat.  The 1^st opposite party states that they cannot be held responsible for the delay attributed by Government agencies in issuing the compliance certificate.   As such there is no deficiency in service on the part of the 1^st opposite party and the complaint is liable to be dismissed.    

3.   Written Version of 2^nd opposite party is  in briefly as follows:

The 2^nd  opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The 2^nd opposite party submits that as per clause 9 of the agreement for construction of flat together with the sale of undivided share dated 15.2.2012 between complainant, 1^st opposite party, 2^nd opposite party it has been stated that “ as per the request of the owner, the builder hereby undertakes to complete the construction of the schedule D property and hand it over to the purchaser through the owner within six months from the construction” and in the above said agreement in clause-11 it has been stated that “ the builder will not be responsible for delay in construction due to acts of god, court or government order or any such force majeure conditions  that are beyond the control of the party of the builder.   He had not acted in negligent manner or committed any deficiency of service and more over the complainant has no where alleged anything towards deficiency or negligence towards the 2^nd opposite party and this forum lack jurisdiction since there exists no service provider consumer agreement.   The complainant is not at all entitled to get any relief as prayed in the complaint against the 2^nd opposite party and the complaint is liable to be dismissed. 

4.     Complainant has filed his Proof affidavit and Ex.A1 to Ex.A5 were marked on the side of the complainant.   Proof affidavit of opposite parties filed and Ex.B1 to Ex.B4 filed on the side of the  opposite parties.  

5.      The points that arise for consideration are as follows:-

 

1.   Whether the opposite parties have committed 11-months delay

in completing the construction and handing over the possession of the flat which amounts to deficiency of service?

 

2. Whether the complainant is entitled for any relief sought for in the complaint, if so, to what extent?

 

6.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, the separate  written version filed by the opposite parties  1 and 2 and the proof affidavit filed by both sides with  documents Ex.A1 to Ex.A5  filed on the side of the complainant,  the Ex.B1 to Ex.B4 filed on the side of opposite parties and considered the both side arguments.

7.     There is no dispute that the complainant as a purchaser of the complaint mentioned flat has entered into tri-party / joint venture agreement Ex.A1 and agreement for construction of the flat together with sale of undivided share of land Ex.A2, dated 15.02.2012 with 1^st and 2^nd opposite parties who are the building constructor / promoter and owner of the land respectively.  The 2^nd opposite party as a vendor has also executed a registered sale deed for the undivided share of the land to the complainant as per the Ex.A3 dated 22.03.2012.  Further there is no dispute that the total cost of the flat including the UDS and the indoor decoration of the said flat the complainant has paid a sum of Rs.63,00,000/-  to the opposite parties as mentioned in the complaint.  Though   the completion of construction of flat and handing over the same to the purchaser / complainant was agreed by the builder / 1^st opposite party through the 2^nd  opposite party / vendor within six months from the date of signing the agreement Ex.A2, and in the event of any delay, then the builder shall be given 3 months for completion  of construction, the complaint mentioned flat after completion of construction as per the terms and specification mentioned in their agreement to the satisfaction of the complainant was handed over by the  opposite parties to the complainant on 01.06.2013 as per the document Ex.A4 the handing over and taking over agreement. 

8.     Whereas  the complainant has raised grievance that as per the agreement the opposite parties have agreed to handover the complete constructed flat to the complainant within six months from the date of agreement Ex.A2 dated 15.02.2012 also adding  grace time of 3 months which falls on 15.11.2012, but within the said date they have not completed the construction and hand over the same to the complainant  and further even as agreed in the website communication not even handed over the possession of the flat as mentioned by the builder on or before 30.06.2012, even that promise of the opposite party have not observed but they have handed over the flat only on 31.05.2013, with delay of  11 months  which amounts to deficiency of service on the part of opposite parties which caused the complainant monetary loss on the huge investment of Rs.63,00,000/- as such complainant has claimed compensation a sum of Rs.11,10,250/- towards different heads like monetary loss, rental loss and sufferings of mental agony.

9.     Whereas the opposite parties have resisted the claim of the complainant contending that there is no provision / terms and conditions in the agreement to pay rental loss on the eve of delay in completing construction and handing over the possession by the opposite parties.  Further contended that though the 1^st opposite party builder completed the constructions and applied to the CMDA authorities  for issuance of completion certificate dated 24.09.2012 as per the Ex.B1, the CMDA authorities had given the necessary completion certificate only on 26.04.2013 and further on obtaining the completion certificate building was completed in all aspects except for the  electric service connection, which are provided by the government authorities only on the production of completion certificate by CMDA and further after carrying out the interior work requested by the complainant the said flat was to the satisfaction of the complainant was handed over on 30.06.2013 as per  Ex.A4.  Therefore the opposite party has contended that there is no inadvertent delay caused by the opposite parties by handing over the flat to the complainant.  Therefore there is no deficiency of the opposite parties and they are not liable for any payment of compensation sought for by the complainant in the complaint. 

10.    On careful perusal of the agreement Ex.A1 and
Ex.A2 entered between the complainant and the opposite parties there is no terms and conditions mentioned for payment of rental loss by the opposite parties to the complainant on the event of delay in completing the construction of the flat and handing over the same to the complainant.  Though there were mentioning about time for handing over of the completed flat within six months from the date of agreement and also with grace period of three months i.e on or before 15.11.2012 and further as mentioned by the complainant as per Ex.A5 website communication sent by the complainant to the opposite parties dated 11.04.2012, it is mentioned that the complainant came to understand that the work is in progress and the project is likely to be handed over at the end of June 2012.  Therefore complainant was appeared to be consented for taking over possession of the flat in the end of June 2012, instead of date mentioned in the agreement as mentioned above.  But the complainant was given possession of the flat as per the agreement Ex.A4 dated 01.06.2013.  It is also not disputed by the opposite parties that the complainant has paid entire cost of the flat, to the opposite parties as per the agreement.  Therefore it is very clear that the opposite parties has completed the construction and handed over the same to the complainant with delay of 11 months without any valid reason.  The reason stated by the opposite parties that the delay was caused due to getting completion certificate from the CMDA authority and also getting EB service connection on production of the CMDA certificate etc., cannot be considered to be valid reasons, considering the terms and conditions of the agreement Ex.A2.

11.    Due to the said 11 months delay in handing over possession the complainant would have suffered in rented loss, though due to the said delay the opposite parties have not benefitted.  Therefore we are of the considered view, as submitted by the complainant that the opposite parties are  liable to pay reasonable compensation to the complainant for the said delay in handing over the possession of the flat.  However the claim made by the complainant in the complaint against the opposite parties total compensation of Rs.11,10,250/- under different heads are appears to be exorbitant, considering the facts and circumstances of the case.  Therefore we are of the considered view that the opposite parties 1 and 2 are jointly and severally liable to pay a sum of Rs.77000/- (at the rate of Rs.7000/- per month for 11 months)  towards  rental loss alone as just and reasonable compensation.  Therefore the opposite parties 1 and 2 are liable to pay a sum of Rs.77,000/- with interest at the rate of 9% p.a. from the date of this complaint to till the date of payment and the opposite parties 1 and 2 are also liable to pay  a sum of Rs.5000/- as cost to the complainant.  Accordingly the points 1 and 2 are answered.

In the result, the complaint is partly allowed.   The opposite parties-1 and 2 are jointly and severally directed to pay a sum of Rs.77,000/- (Rupees Seventy seven thousand only) with interest at the rate of 9% per annum from the date of this complaint i.e. 30.6.2014 to till the date of payment and also to pay a sum of Rs.5,000/- (Rupees five thousand only) as cost to the complainant within six weeks from the date of this order.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  18^th   day  of  August   2016.

 

 

MEMBER-I                                           MEMBER-II                                       PRESIDENT.

Complainant’s Side documents :

 

Ex.A1- 15.1.2010      -  Copy of Joint Development agreement.

Ex.A2- 15.2.2012      -  Copy of Agreement for construction of flat together with sale

                                of undivided share of land.

Ex.A3- 22.2.2012      -  Copy of  Deed of sale.

Ex.A4- 1.6.2013        -  Copy of Handing over and taking over agreement.

Ex.A5- 11.4.2012 to  -  Copy of correspondence made to Builder/Owner from

          10.4.2014      -  11.4.2012 to 10.4.2014

 

 

Opposite party’s side documents: - 

 

Ex.B1- 24.9.2012      - Copy of application for completion certificate.

 

Ex.B2- 12.3.2013      - Copy of letter by CMDA.

Ex.B3- 1.4.2013        - Copy of application for completion certificate.

 

Ex.B4- 26.4.2013      - Copy of completion certificate.

 

 

MEMBER-I                                           MEMBER-II                                       PRESIDENT