Tamil Nadu

South Chennai

286/2011

K.S.Rajasekharan - Complainant(s)

Versus

M/s. Unetech Builders - Opp.Party(s)

K.P.Kiran Rao

05 Sep 2017

ORDER

                                                                        Date of Filing :  03.10.2011

                                                                        Date of Order :  05.09.2017

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.286/2011

TUESDAY THIS 5^TH DAY OF SEPTEMBER 2017

 

K.S. Rajasekharan,

G-16, New Trishul,

Bhawani Nagar,

Marol Maroshi Road,

Anderi East, Mumbai 400 059.                          .. Complainant

                                        ..Vs..

 

1.  M/s. Unitech Builders,

Rep. by its Partners,

No.10, Second Street,

North Gopalaruram,

Chennai 600 086.

 

2. A.P. Thanigainathan,

Partner, M.s, Unetech Builders,

No.10, Second Street,

North Gopalaruram, Chennai 600 086.

 

3. M. Sundhara Raaman,

Partner, M/s. Unetech Builders,

No.10, Second Street,

North Gopalaruram, Chennai 600 086.           .. Opposite parties.

 

 

Counsel for Complainant          :    Mrs. K.P.Kiran Rao  

Counsel for opposite parties     :    M/s. Nambiar   

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 furnish cupboards, open space covered with grill, split Air Conditioner etc. and to provide the completion certificate from the concerned authorities and also to pay a sum of Rs.95,000/- towards delay in handing over possession  and also to pay a sum of Rs.3,00,000/- towards compensation for mental and also to pay cost of the compliant.

 

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

         The complainant submit that  the complainant and his brother were absolute owners of all the house and premises bearing Door No.31,77, Royapettah, Chennai, Measuring an extent of 2052 sq. ft.  comprised in old Survey No.3506 R.S. No.190 New R.S.No.190/3 of Mylapore Division.   Further the complainant state that with a view to develop the said property they had entered into a Development Agreement dated 25.6.2008 with  the opposite parties.  The complainant further state that under the above said agreement dated 25.6.2008 the owners had offered to sell 50% of undivided share out of the above said property to the builder or their nominees and in exchange of that the builder undertook to construct and handover two flats measuring 1800 sq. ft. to the owners.   As per Clause 3 (ii) of the Development Agreement provided that the basic construction specifications shall be contained in Annexure-1.    The complainant also state that as per clause 3 (vi) the builder shall compensate the owners for the loss of rental income from the property with a payment of Rs.12,000/- per month from the commencement of the construction work for a period of twelve months or until such time possession of the completed flats are delivered to the owners.    The complainant state that there was inordinate delay on the part of the opposite parties in completing the construction, hence the opposite parties are liable to pay a sum of Rs.5,000/- p.m. from October 2009 to December 2009  & a sum of Rs.10,000/- p.m. from January 2010 till September 2010.   

2.     The complainant further state that in spite of repeated demands the opposite parties had failed and neglected to provide some of the basic amenities agreed under the specification to the agreement dated 25.6.2008 the details given below:

        Furniture    - Hall – Sofa & dining Table

                          Kitchen –Modular with trolleys.

                          Bedrooms: Wardrobe with dressing table and Double

                           cot in three bed roods;     

        Cupboards  - Bed rooms, Kitchen cup boards and lofts to be

                           Covered with wooden finish.

        Open spaces covered with grill, and

        One Split Air Conditioner in Bed room.  

As such the act of the opposite parties clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

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

        The opposite party denies each and every allegation except those that are specifically admitted herein.    The opposite parties state that the total built up area will be shared among the owners and builders in equal ratio of 50% each.   The builder shall complete the construction within 12 months from the date of commencement of construction work and during the period the builder agrees to pay a sum of Rs.12,000/- as monthly rent for alternate accommodation.    In fact the opposite parties completed the project within 9 months from the date of commencement of work as it is evident from the Corporation tax assessment order.   Further the opposite parties state that  they provided all the amenities as promised and specified in the agreement except the following:

1. Open space with grill 
2. b) Ward robes and loft in the bed rooms 

The above work did  not carried out by the opposite parties.    The complainant has not paid the charges and deposit amount for getting connection of electricity, Metro water and drainage as agreed in clause 11 of the agreement.   However the complainant requested the opposite parties to provide Johnson High quality tiles worth Rs.250/ per sq. ft. in two bed rooms assuring that he will compensate the difference price amounting to Rs.1,00,000/-.   Similarly the finishing of the walls changed to well wet touch instead of distemper finish.    Hence there is no deficiency in service on the part of the opposite parties and they are not bound to carry out any work in the flat or to pay any compensation as claimed in the complaint.  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 his evidence and documents Ex.A1 to Ex.A4 marked.  Proof affidavit of opposite parties  filed and Ex.B1 to Ex.B3 marked on the side of the opposite parties.  

5.   The point for the consideration is:  

1. Whether the complainant is entitled to have furnished cupboards, open space covered with grill, split Air Conditioner etc. by the opposite parties 1 & 2 or  alternatively entitled to claim a sum of Rs.5,00,000/- as prayed for ?

 

2. Whether the complainant is entitled to get completion certificate from the concerned authorities through the opposite parties as prayed for?

 

3. Whether the complainant is entitled to recover a sum of Rs.95,000/- towards delay in handing over the possession with compensation of Rs.3,00,000/- towards mental agony with cost as prayed for ?

6. POINT No.1

        Heard both sides.  Perused the records.  Both the parties admitted the development agreement dated 25.6.2008 as per Ex.A1.  The learned counsel for the complainant contended that as per the agreement Ex.A1 the opposite parties shall furnish the house particularly Hall with Sofa and Dining table, Kitchen Modular with trolleys, kitchen cupboards and lots  and bed rooms; dressing table, double cot; open space covered with grill, one split Air conditioner.   But the opposite parties failed and neglected to furnish the house as per specification.   The commissioner also inspected the property  and filed report stating that

“ The case of the complainant is that the opposite parties agreed to provide all amenities and will handover the flat as per the specification made in the development agreement dated 25.6.2008 and the same has not been provided.  Hence I have been  appointed to inspect whether all the amenities provided.  At the time of inspection I noted the following:

In the hall no furniture’s as sofa and dining table has not been provided it can be seen from the photographs.

           In the kitchen – doors alone fixed and not fixed the trolleys.

In the bed room – not provided wardrobe with dressing table and double cot in three bed rooms.

Split A/c in bed room is not provided by the builder / opposite party.

Cupboards and lofts not provided in the bedroom; kitchen cupboards and lofts to be covered with wooden finish.

Open spaces covered with grill not provided. “

But during the visiting of the Commissioner, the opposite party was not present; even after receipt of notice.

7.     The learned counsel for the opposite parties contended that the allegation of deficiency in furnishing the house not arise in this case because as per the agreement Ex.A1 50% each of constructed area is entitled by the complainant; has nothing to do with the furnished house.  But admittedly as per Ex.A1 development agreement both parties their respective duties and liabilities.   The learned counsel for the opposite parties further contented that the complainant has not paid the charges and deposit amount for getting electricity connection;  Metro water, drainage as per Clause -11 of the agreement.   Similarly the opposite party is entitled to provide only vitrified tiles.   But on the request of the complainant high quality Johnson tiles worth of Rs.250/- per sq. ft. was provided on the condition that it should be compensated by the complainant.   But the complainant has not paid even single Pisa  for such flooring with high quality tiles.   Further the learned counsel for the opposite parties contended that the grill on the open space and  Ward robes and loft in the bed rooms were not done because the complainant quarreled with the opposite party and neglected to pay the charges towards local bodies and other special requirements committed.  The commissioner also has not stated anything about the high quality Johnson titles affixed in floor.  Considering the facts and circumstances of the case, this forum is of the considered view that the alleged deficiency of the complainant against the high quality Johnson titles as per the requisition of the complainant will compensate each other  and point is answered accordingly.

8. POINTS 2 & 3:

        The learned counsel for the complainant contended that since the complainant’s son got employment in Chennai.  The complainant took possession of his flat as where his condition with pending works during the month of September 2010.  Thereafter the opposite party failed to neglected to pay rent by way of compensation neglected to do the pending works, failed to obtain the completion certificate from the concerned authorities establish the deficiency of service.   Per contra the learned counsel for the opposite parties contended that as per agreement Ex.A1 immediately after the payment of balance amount of Rs.4,00,000/- the opposite parties should start the works.  In this case the complainant received his share of last installments at the time of commencement of work only on 20.12009.  Hence there is no delay in handing over the possession of the property.  The allegation that completion certificate has not been obtained and given to the complainant never arise because the complainant immediately after completion of work took possession of house during the month of September 2010 itself.   The complainant also paid the local taxes including property tax, electricity, Metro water, drainage etc. and has not paid any amount.   The claim of Rs.95,000/- towards delay in handing over the possession as per Clause-3 (iv) of agreement also never arise because the complainant took possession during the month of September 2010 itself is very clearly admitted.  Further the learned counsel for the complainant contended that the claim of Rs.3,00,000/- towards compensation for mental agony is imaginary.   There is no iota of truth in that.   Considering the facts and circumstances of the case this Forum is of the considered view that opposite parties 1 to 3 are jointly and severally liable shall obtain the completion certificate from the concerned authorities and hand over to the complainant.  The opposite party are also shall pay a sum of Rs.15,000/- towards compensation for mental agony and cost of Rs.5,000/- to the complainant and the points 2 & 3 are answered accordingly. 

        In the result the complaint is allowed in part.  The opposite parties 1 to 3 are jointly and severally liable to obtain the completion certificate from the concerned authorities and hand over to the complainant.  The opposite parties also shall pay a sum of Rs.15,000/- (Rupees Fifteen thousand only) towards compensation for mental agony and cost of Rs.5,000/- (Rupees Five thousand only) to the complainant

        The above  amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  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  5^th    day  of  September  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

 

Ex.A1- 15.6.2008  - Copy of Development Agreement.

Ex.A2- 1.3.2008    - Copy of Bank Statement.

           21.9.2011

Ex.A3- 19.8.2011  - Copy of letter from the complainant to the opposite parties.

Ex.A4-         -       - Copy of Ack. Cards.

 

Opposite party’s side document: -  

Ex.B1-         -       - Copy of  approved building plan and planning permit.

Ex.B2-         -       - Copy of Tax assessment order.

Ex.B3-         -       - Copy of Possession take over certificate.

Court Side exhibits :

Ex.C1- 10.5.2014 – Advocate Commissioner Report.

Ex.C2-       -      -  Photos.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.