Tamil Nadu

StateCommission

CC/3/2015

N.E.Subhramaniyam, - Complainant(s)

Versus

M/s. Sri Renga Property Developers Pvt. Ltd, Rep by its Managing Director R.Rajaharam - Opp.Party(s)

M/s.Lavanya Shankar

01 Nov 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                       ::     PRESIDENT                       

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

 

C.C. No.03/2015

MONDAY, THE 01^ST DAY OF NOVEMBER 2021                                        

N.E. Subhramaniyam,

S/o. Late N.K. Eswaran,

T-5, Jains West Hills,

Sowripalayam Road,

Udayampalayam,

Coimbatore – 641 028.                                                              ::         Complainant.

-Versus-

1. M/s. Sri Renga Property Developers Pvt. Ltd.,

Represented by its Managing Director

Mr. R. Rajahram,

 

2. R. Rajahram,

Managing Director,

M/s. Sri Renga Property Developers Pvt. Ltd.,

 

3. S.K. Ramasamy,

Executive Director,

M/s. Sri Renga Property Developers Pvt. Ltd.,

 

4. R. Praveen,

Director,

M/s. Sri Renga Property Developers Pvt. Ltd.,

No.68, Bharathi Park Road,

7^th Cross, Saibaba Colony,

Coimbatore – 641 012.                                                                ::    Opposite Parties                                                                          

 

Counsel for the complainant                     :    M/s. Lavanya Shankar

Counsel for the Opposite parties 1 to 4    :    M/s. Venkataswamy Babu

 

              This complaint having come up for final hearing before us on 01.11.2021  and on hearing the arguments of both parties and upon perusing the material records submitted by them and this Commission made the following:-

ORDER

TMT. Dr. S.M. LATHA MAHESWARI,   MEMBER

               This complaint has been filed under section 17 (1) (a) (i) of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice on the part of the opposite parties along with a prayer to direct the opposite parties:-

1. To refund the sum of Rs.34,07,612/- with 18% interest;
2. Rs.15,000/- towards loss of rental income from December 2011;
3. to reimburse a sum of Rs.15,000/-  towards rental charges from August 2008 to November 2011;
4. To pay a compensation of Rs.10,00,000/- towards mental agony and hardship     and
5. To pay Rs.1,00,000/- as cost of the proceedings.

1.         The gist of the complaint allegations is as follows;-           

The present complaint was filed by the complainant who booked a flat with the opposite parties but the opposite parties had failed to deliver the completed flat and thus the complainant wanted refund of the amount paid to the opposite parties towards the cost of the flat.  The complainant desirous of purchasing a flat came to know about the 1^st opposite party who was developing Housing Projects in Coimbatore.   The opposite parties supplied a brochure to the complainant and the complainant on seeing the brochure decided to purchase a flat from the 1^st opposite party and thus parted a sum of Rs.2,00,000/- vide cheque drawn on State Bank of India, Coimbatore Branch dated:20.01.2007 as booking advance.   The Construction Agreement as well as the Agreement for Sale of undivided share of land was entered between the parties on 12.03.2007.   Thus the complainant booked a ground floor flat No.LL-1 measuring 1970 sq. ft. in “Renga’s Green Woods” for a total sale consideration of Rs.33,93,000/-.   The complainant paid totally a sum of Rs.34,07,612/- towards the sale consideration of the flat as required by the opposite parties from time to time.  In the mean time, the 1^st opposite party on 24.07.2009 informed the complainant that he had entered into an Agreement with M/s. Mint Homes Pvt. Ltd. to carry on the construction and other related activities and requested the complainant to bear with the delay in delivering the apartment.   Thereafter, though various email communications were made between the parties, the opposite parties neither delivered the vacant possession of the flat nor refunded the amounts received from the complainant. Thus the present complaint was filed alleging deficiency in service on the part of the opposite parties nor delivering the constructed apartment and not refunding the amounts paid by the complainant with other reliefs as mentioned above. 

2.         The 1^st opposite party filed version stating that the complaint filed for refund of the amount was not maintainable before the Consumer Commission.  It was submitted that only on the request and pressure given by the complainant to evade tax by him they accepted the amounts from the complainant towards the sale consideration of the flat.   The opposite parties however admitted that the complainant had paid a sum of Rs.34,07,612/-.  They also alleged that as the complainant wanted certain changes in the apartment the construction was delayed.  Further as they have given the construction work to M/s. Mint Homes Pvt. Ltd. And agreements were entered between them at present the M/s. Mint Homes Pvt. Ltd. had become the Developer of the project as far as the complainant was concerned.   Thus, they concluded that they had handed over the project in the year 2009 and the complaint filed in 2015 was clearly barred by limitation and not maintainable and even if any claim made by the complainant could be entertained and it can only be against the M/s. Mint Homes Pvt. Ltd. and thus sought for dismissal of the complaint. 

3.         The complainant filed proof affidavit and marked documents Ex.A1 to Ex.A16.  On the side of the opposite parties proof affidavit was filed but no documents were produced by them.

4.      The point for consideration :-

Whether the opposite parties has committed deficiency in service  and if so, to what relief the complainant is entitled?

5.         Point:-

Admitted facts:

The following documents were filed by the complainant  to prove his case:

1. The brochure handed over by the opposite parties to the complainant was marked as Ex.A1;
2. The Sale Deed executed by the complainant and his brother to raise money for the purchase of the flat from the opposite parties was marked as Ex.A2;
3. The amounts paid by the complainant on 20.01.2007 and 09.03.2007 to the 1^st opposite party and the receipts issued in  proof of the same by the 1^st opposite party were marked as Ex.A3 & Ex.A4;
4. A copy of the Agreement for sale of undivided share of land executed between the complainant and the opposite parties was marked as Ex.A5;
5. The construction Agreement entered between the complainant and the opposite parties dt.12.03.2007 was marked as Ex.A6;
6. The demand notice issued by the opposite parties to the complainant with regard to the balance payment of amount of Rs.20,36,118/- was marked as Ex.A7;
7. The valid receipts issued by the 1^st opposite party in proof of remittance of a sum of Rs.9,00,000/- on 20.09.2008 and Rs.11,00,000/- on 22.10.2008 were marked as Ex.A8 & Ex.A9;
8. The communication sent by the opposite parties to the complainant informing that they have entered into an Agreement with M/s. Mint Homes Pvt. Ltd. for the purpose of construction was marked as Ex.A10;
9. The communication addressed to the complainant by the M/s. Mint Homes Pvt. Ltd. informing the complainant about the undertaking of the construction related to project in Green Lands, Green Woods and Cedars was marked as Ex.A11;
10. The communication addressed to the complainant by the opposite parties with regard to the reason for delay in completing the projects was marked as Ex.A12;
11. The amounts deposited by the 1^st opposite party in the complainant’s account for the delay in delivering the apartment in consonance with the clause 34 of the Agreement for Sale was marked as Ex.A13;
12. The notice issued by the complainant dt.07.07.2014 was marked as Ex.A14;
13. The reply issued by the opposite parties through email dt.10.07.2014 was marked as Ex.A15;
14. The photographs of the in-completed construction of the flats were marked as Ex.A16;

6.         Heard the arguments advanced by both the parties.   

7.         It is admitted by both parties that the complainant had agreed to purchase an apartment to be developed by the 1^st opposite party and had paid a total amount of Rs.34,07,612/- against the total sale consideration of the proposed apartment in Renga’s Green Woods.   The main contention by the opposite parties is that as they have handed over the construction project to the M/s. Mint Homes Pvt. Ltd. they are not liable for any claim made by the complainant.   With regard to the same, the complainant had produced a document though admitted but not marked by this Commission, a communication addressed by the said M/s. Mint Homes Pvt. Ltd. informing that they are not having any obligations to the buyers and land owners attached to Sri Renga the opposite parties herein.  

8.         The Counsel for the opposite parties argued that the complaint is not maintainable as there is no deficiency in service on their part and that the complainant is not a ‘Consumer’.   The term ‘Deficiency’ as defined Under Section 2(g) as follows:-

‘Deficiency’ means any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

In the present case, the documents submitted by the complainant clearly shows that an Agreement for Construction and Sale of Undivided Share had been entered between parties for purchase of an apartment from the opposite parties.  Hence, it is to be held that the complainant had availed the service of the opposite parties.   When the apartment was not handed over as agreed even after receipt of part of considerations, it comes very well under the purview of definition Under Section 2(g) of the Consumer Protection Act, 1986.

9.         We could find from the documents submitted by the complainant and the valid receipts issued by the opposite parties that a total amount of Rs.34,07,612/- has been paid as follows for the purchase of the flat:-

1. Cheque for a sum of Rs.2,00,000/- drawn on State Bank of India, Coimbatore Branch bearing No.349415 dt.20.01.2007;
2. Cheque for a sum of Rs.12,07,612/- drawn on Bank of India, Coimbatore Branch bearing No.2933331 dt.09.03.2007;
3. Cheque for a sum of Rs.9,00,000/- drawn on Bank of India, Coimbatore Branch bearing No.451949 dt.22.09.2008;
4. Cheque for a sum of Rs.11,00,000/- drawn on Bank of India, Coimbatore Branch bearing No.452028 dt.20.10.2008

Thus, it is amply proved by the complainant that a total amount of Rs.34,07,612/- has been paid by the complainant which fact was not disputed by the opposite parties.  However, the contention is that only M/s. Mint Homes was responsible for the claims made  by the complainant.  We could see that the agreement for the sale of undivided share of land and the construction agreement was entered only between the complainant and the opposite parties herein.  It is only with the opposite parties the complainant had entered into transactions for the purpose of purchase of the apartment.  Nothing on record was produced by the opposite parties to show that the complainant had entered into any agreement or transaction with the said M/s. Mint Homes Pvt Ltd.  In such scenario, we are of the opinion that there exists no privity of contract between the complainant and the Mint Homes. Hence, the complainant could not raise any claim against the M/s. Mint Homes Pvt. Ltd.  as the receipts for the payment of money by the complainant was issued only by the opposite parties.   The payment was also admitted by the opposite parties themselves.   Hence, the opposite parties are only liable to repay the amount.   The apartment till today was not handed over by the opposite parties to the complainant and the amount received also was not refunded to the complainant.  This is a clear deficiency in service on the part of the opposite parties.  The reasons for  the delay in construction and the contention of handing over the project to the M/s. Mint Homes Pvt. Ltd. alleged by the opposite parties is not justifiable in the facts of the cases hence not acceptable.   Therefore we are of the opinion that the opposite parties have committed clear deficiency in service. 

8.         With regard to the relief claimed by the complainant he had prayed for a direction to direct the opposite parties to refund the sum of Rs.34,07,612/- with 18% interest from September 2008.   However, in the facts and circumstances we award 7.5% interest to be paid on the amount of Rs.34,07,612/- along with the Principal amount from September 2008 to till realization.   The claim made by the complainants with regard to the payment of rent was not substantiated by the complainant by producing any evidence towards the same.  However with regard to the compensation we are inclined to award Rs.5,00,000/- as compensation for mental agony and hardship undergone by the complainant.  Further we order Rs.10.000/- as cost of the complaint.

In the result, the complaint is partly allowed and the opposite parties are jointly and severally directed to

1. To refund a sum of Rs.34,07,612/- with 7.5% interest from  September 2008 to till date of realization;
2. To pay a sum of Rs.5,00,000/- as compensation for mental agony and  hardship;
3. To pay a cost of Rs.10,000/- for litigation expenses.

 

S.M. LATHAMAHESWARI                                                                          R.SUBBIAH

         MEMBER                                                                                             PRESIDENT

 

List of Documents filed by the complainant:-  

Ex.A1		Copy of brochure handed over by the opposite parties to the complainant
Ex.A2	03.09.2006	Copy of Sale Deed executed by the complainant and his brother
Ex.A3	20.01.2007	Copy of receipts issued by the 1st opposite party evidencing remittance of a sum of Rs.2,00,000/- by the complainant
Ex.A4	09.03.2007	Copy of receipts issued by the 1st opposite party evidencing remittance of a sum of Rs.2,00,000/- by the complainant
Ex.A5	12.03.2007	Copy of Agreement of Sale of undivided share of land entered between the complainant and the opposite parties in the complaint schedule property
Ex.A6	12.03.2007	Copy of Construction agreement entered between the complainant and opposite parties
Ex.A7	20.09.2008	Copy of demand note issued by the 1st opposite party to complainant
Ex.A8	20.09.2008	Copy of receipts issued by the 1st opposite party evidencing remittance of a sum of Rs.9,00,000/- by the complainant
Ex.A9	22.10.2008	Copy of receipts issued by the 1st opposite party evidencing remittance of a sum of Rs.11,00,000/- by the complainant
Ex.A10	24.07.2009	Copy of communication addressed by the opposite parties to the complainant
Ex.A11	25.07.2009	Copy of communication addressed by M/s. Mint Homes Pvt. Ltd. to the complainant
Ex.A12	15.10.2010	Copy of communication addressed by the opposite parties to the complainant
Ex.A13 (Series)		Amount deposited by the 1st opposite party in compliance of Clause 34 of the Construction Agreement
Ex.A14	07.07.2014	Copy of notice issued by the complainant through email
Ex.A15	10.07.2014	Copy of reply issued by the opposite parties through email
Ex.A16 (Series)		Photographs of the complaint schedule premise

 

 

 

S.M.LATHAMAHESWARI                                                                           R.SUBBIAH

         MEMBER                                                                                             PRESIDENT