Tamil Nadu

South Chennai

CC/159/2004

M/s. Devi Sorrento Residency - Complainant(s)

Versus

M/s. Sorrento Builders & Investments - Opp.Party(s)

M/s. V. RamanaReddy

06 Sep 2017

ORDER

                                                                        Date of Filing :  02.01.2004

                                                                        Date of Order :  06.09.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

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

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

C.C.NO.159/2004

WEDNESDAY THIS 6^TH DAY OF SEPTEMBER 2017

 

M/s. Devi Sorrento Residency,

Home Owners Trust,

Rep. by its Secretary,

Dr. K.S. Kamala,

F-2, NO.30, Ormes Road,

Kilpauk, Chennai 600 010.                            .. Complainant

 

                                           ..Vs..

 

1.  M/s. Sorrento Builders &

Investments,

Rep. by its Partners,

P. Raghunandan,

No.51, 3^rd Main Road,

Gandhi Nagar, Adyar,

Chennai 600 020.

 

2. Mr. P.Raghunandan,

51, 3^rd Main Road,

Gandhi Nagar, Adyar,

Chennai 600 020.                                         .. Opposite parties.

 

Counsel for Complainant             :    M/s. V. Ramana Reddy & others.      

Counsel for opposite parties        :    M/s. S.J.Jagadev & others          

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to allot the basement area and proportionate undivided share of land free of cost after obtaining approval from CMDA with completion certificate and to provide the weathering course on the terrace  car parking for Flats No.T-3, T-4; and to transfer ownership of the lift  provision of Generator and also  to pay a sum of Rs.12,00,000/- towards deficiency of service with cost of Rs.50,000/-.

1. The averment of the complaint in brief are as follows:

        The complainant submit that it is the Trust duly registered under the Tamil Nadu Societies Registration Act 1975  as required under the Apartment Ownership Act.  The complainant Trust consists of 12 members, who are all the owners of the undivided share of land and the respective apartments in the Residential Complex known  as “Sorrento Residency” promoted by the opposite parties.   The complainant further state that all the members the complainants’ association purchased the apartments as early as July 2002, after the due execution of builder agreement  dated 5.3.2001.   The complainant further state that  the opposite parties agreed to allot the basement area and the undivided share of the land at free of cost to all the 12 flats owners, equally and this has been agreed to by the opposite parties, because the complainant’ members have agreed for a costlier range of construction cost as charged by the opposite parties in respect of their respective apartments.  

2. As such the act of the opposite parties  amount to deficiency in service which caused mental agony and hardship to the complainant.  Hence the complaint is filed. 

3. The brief averments in the Written Version of  the opposite parties are as follows:

        The opposite parties denies each and every allegation except those that are specifically admitted herein.    The opposite parties submit that Development Agreement dated 14.10.1994 was entered into by opposite parties with owner of the property for developing flats in an area of about 5 grounds and 2190 sq. ft.  The Building consists of Basement, ground plus three floors.   The flats constructed are of various sizes to suit the needs of various purchasers.    The opposite parties deny that there is any defect in walls or ceiling  constructed by the opposite parties.   The maintenance of the building and common amenities is the duty of the Association and its members once the flats have been handed over.    The opposite parties deny that weathering course was not done on the Terrance.  The opposite parties had completed the construction of flats more than 7 years ago.  There was no complaint upto now regarding weathering course.   The opposite parties also deny that the owners of the Flat No.T3, and T4 have not been provided with car parking.  All Flat owners have been provided with car parking with protective over roof.     The opposite parties deny the allegation that ownership of lift has not been handed over to the Association.  The opposite parties have provided the Lift for the building and this has been handed over to the Association and it is being used by the Flat owners.   As regards provision of Generator, the opposite parties submit that they are ready to provide the Generator provided the flat owners pay the balance sale consideration agreed by them.    As on date the flat owners have left unpaid a sum of Rs.14,63,113/-.    The opposite parties undertake to provide Generator on payment of the above said arrears by the flat owners.   Without payment of full cost of the flats, the complainant has no right to demand provision of Generator.      Hence there is no deficiency in service on the part of the opposite parties.  Therefore this complaint is liable to be dismissed.

4.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as her evidence and documents Ex.A1 to Ex.A16 marked.  Proof affidavit of opposite parties  filed and Ex.B1 to Ex.B16  marked on the side of the opposite parties and also Ex.C1 marked.  

5.   The point for the consideration is:  

1. Whether the complainants’ association is entitled to the relief of allotting the basement area and proportionate undivided share of land free of cost after obtaining approval from CMDA with completion certificate as prayed for ?
2. Whether the complainants’ association is entitled to provide the weathering course on the terrace;  car parking for T-3, T-4;  to transfer ownership of the lift,  provision of Generator as prayed for ?

 

3. Whether the complainants’ association are entitled to pay a sum of Rs.12,00,000/- towards deficiency of service with cost of Rs.50,000/- as prayed for?

 

6. POINT -1

         

          Heard both sides.The Learned counsel for the complainant contended that the complainant is a trust registered under the Society Act; consisting of 16 members formed an association.All the members of the complainants’ association purchased the apartments as early as July 2002; after the due execution of builder agreementdated 5.3.2001.There are 16 apartments in which 12 apartments were purchased by different owners, 4 apartments belongs to the land owner.The opposite parties entered into a development agreement dated 14.10.1994 for due development of 5 grounds and 2198 sq. ft. property consist of basement, ground plus three floors.The opposite parties constructed various sizes of flats suitable for various purchasers and sold out.The purchasers of the apartments formed the complainants’ association as per the provision of theApartment Ownership Act.The learned counsel for the complainant further contended that as per the builders agreement Ex.A1 the buildersshall allot1/16 share to the complainant (i.e) the purchaser of the apartment; but the opposite parties has given only 1/20 share.But on a careful perusal ofEx.A1 agreement it is very clear that the opposite parties executed the sale deed in respect of proportionate of undivided share of land and none of the construction agreement will show that 1/16 share will be given to the purchaser of the plots (i.e. ) the members of the complainants association. Hence the claim of 1/16 share is against true facts.

7.  
8.  

9. POINT No.2

        The learned counsel for the complainant contented that the opposite parties has not constructed the building in a proper manner and weathering course applied to the building Terrace are in a damaged condition.   The Advocate Commissioner also inspected the property and reported that “Weathering course in Terrace floor is not laid properly”.   The opposite parties are liable to re-instate the weathering course in proper manner.   Similarly the opposite parties  have not provided proper car parking to the flat No.T3 & T4 the Advocate Commissioner inspected the property and filed his report stating that “open car parking alone provided to T3 & T4.   Similarly the opposite parties have not transferred the ownership of the lift to the complainants association causing great inconvenience.   The opposite parties failed and neglected to provide the generator for the complex as agreed.     But on a careful perusal of Ex.A1 agreement it is seen that who are all entitled  to close car parking is not clearly mentioned.   The learned counsel for the opposite parties would contend that at the time of handing over the possession of the apartment due weathering course was done on the terrace.  After a lapse of 7 years, the weather course may deteriorate due to efflux of time which cannot be considered as a deficiency of service, it is very clear from the Advocate Commissioner Report that “the Advocate commissioner visited the property only on 29.4.2011 (i.e.) after the lapse of 8 years.  The opposite parties are not liable to reinstate the  weathering course; since it is lapse of time.  Further the learned counsel for the opposite parties contended that all the flat owners were provided due car parking with protective over roof.   The alleges open car parking  for T3 and T4 noted by the Advocate Commissioner not stated anything about the car parking as open to sky.    Further the learned counsel for the opposite parties contended that the allegation to transfer of ownership of lift cannot arise, since all 16 members of the complainant has not filed this complaint.   Equally the opposite parties builder is not a party to the complainant association.  Only 12 apartments alone sold to the different purchasers; the 4 apartments belong to the erstwhile owners.   Even though the lift is handed over to the association without any record; the opposite party is ready and willing to give a formal declaration in this regard also until the complainant association shall maintain the lift.  Further the learned counsel for the opposite parties contended that the allegation of provision of generator without any payment much less balance due towards the cost price cannot be claimed by the complainant.  The opposite parties are ready to provide the generator facility on payment.  Considering the facts and circumstances of the case, this Forum is of the considered view that  the complainant have claimed several reliefs after  the lapse of 7 long years and enjoying the available facilities and the point is answered accordingly. 

10. POINT No.3

        The learned counsel for the complainant contended that since the opposite parties has not provided generator, car parking, lift, weathering course, etc. in a proper manner and caused deficiency of service a sum of Rs.12,00,000/- is claimed towards compensation for such deficiency.  But on a careful perusal of the entire records there is no such deficiency much less deficiency of service.  The learned counsel for the complainant further contended that she claimed a sum of Rs.50,000/- as compensation for mental agony.  But on a careful perusal of the entire records the complainant association have no such mental agony resulting any hardship.   The learned counsel for the opposite parties would contend that the complainant has not come forward and filed this case with clean hands.  The complainant is claiming for several rights including undivided share; generator; car parking; transfer of ownership of lift etc. which they are already enjoying without paying the entire cost price of apartment.  The claim of compensation of Rs.12,00,000/- towards deficiency of service is imaginary and there is no deficiency of service caused by the opposite parties.     Considering the facts and circumstances of the case this forum is of the considered view that  the complainant is not entitled for any relief as prayed for in the complaint and the point is answered accordingly. 

             In the result this complaint is dismissed.   No cost.

 

          Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  6^th    day  of  September  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

 

Ex.A1- 5.3.2000    - Copy of Development Agreement.

Ex.A2- 5.3.2000    - Copy of letter sent by 1^st opposite party.

Ex.A3- 17.10.2000         - Copy of Trust Deed of the complainant Association.

Ex.A4- 24.11.2000         - Copy of letter from 1^st opposite party to the complainant.

Ex.A5- 6.12.2001  - Copy of letter from 1^st opposite party to the complainant.

Ex.A6-         -       - List of Members.

Ex.A7- 30.12.2002         - Copy of legal notice.

Ex.A8-  3.2.2003   - Copy of Ack. From 1^st opposite party.

Ex.A9- 8.1.2003    - Copy of reply notice.

Ex.A10- 8.6.2003  - Copy of resolution passed by the complainant’s association.

Ex.A11- 23.6.1998         - Copy of Sale by Regunandan to Narendar Kumar.

Ex.A12- 9.12.1999         - Copy of Sale by Manickvel to Andrew Pope Thompson.

Ex.A13- 9.12.1999         - Copy of Sale by Manickvel to Rana Thompson.

Ex.A14- 13.10.2004-Copy of Sale by Thirunavukarasu to Renuka Jayakuar @

                               Maithri Jayakkar.

Ex.15- 21.4.2011  - Copy of Sale by Prabagaran to Priyadharshini.

Ex.A16- 6.6.2013  - Copy of sale by Kavitha Setlur to Sambrajya Lakshmi.  

 

 

Opposite parties’ side document: -   

Ex.B1-  7.10.1996 - Copy of Flat construction agreement between the builder

                               and V. Balakrishna Menon. 

Ex.B2-  24.5.1997 - Copy of Flat construction agreement between the builder

                               And M.Prabakaran and another.

Ex.B3- 31.10.1997         - Copy of Flat construction agreement between the builder

                               and Dr. S.Rema  and another.

Ex.B4 Mar’1998     - Copy of Flat construction agreement between the builder

                               and Mrs. Chitra Thiruvanvukarasu.

Ex.B5-17.4.1999   - Copy of Flat construction agreement between the builder

                               and Oriental Bank of Commerce.

Ex.B6-         -       - Copy of list of arrears of balance sale consideration.

Ex.B7-         -       - Copy of the details of Flat owners.

Ex.B8- 11.6.1998  - Copy of Assessment of property tax of Flat No.30/1.

Ex.B9- 11.6.1998  - Copy of Assessment of Property tax of Flat No.30/2.

Ex.B10- 11.6.1998         - Copy of Assessment of Property tax of Flat No.30/4.

Ex.B11- 11.6.1998         - Copy of Assessment of Property tax of Flat No.30/5.

Ex.B12- 11.6.1998         - Copy of Assessment of Property tax of Flat No.30/6.

Ex.B13- 11.6.1998         - Copy of Assessment of Property tax of Flat No.30/9.

Ex.B14- 11.6.1998         - Copy of Assessment of Property tax of Flat No.30/11

Ex.B15- 11.6.1998         - Copy of Assessment of Property tax of Flat No.30/12.

Ex.B16- 11.6.1998         - Copy of Assessment of Property tax of Flat No.30/15.

Ex.B17- 11.6.1998         - Copy of Assessment of Property tax of Flat No.30/16.

Ex.B18- 25.6.1997         - Copy of letter from the opposite parties to Mr.V.B. Menon

                               for payment of balance of Rs.5,49,112/-.

 

 

Exhibits: -

Ex.C1 – 9.5.2011 – Advocate Commissioner Report.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.