Tamil Nadu

North Chennai

CC/11/2017

M/s. Pallazo Apartment Residents welfare Association - Complainant(s)

Versus

M/s. Vardhaman costruction & Investment - Opp.Party(s)

N.Makeswaraiah

29 May 2018

ORDER

 

                                                            Complaint presented on:  30.12.2016

                                                                  Order pronounced on:29.05.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

TUESDAY THE 29^th DAY OF MAY 2018

 

C.C.NO.11/2017

 

M/s.Pallazo Appartment Residents,

Welfare Association,

Rep. by its President.Mr.A.Henry Williams,

No.1/405, Ground Floor, F-Block,

Antory Pallozo, Gangai Amman Koil Street,

Vadakkupattu, Medavakkam,

Chennai – 600 100.

 

 

                                                                              ….. Complainant

..Vs..

1.M/s.Vardhaman Construction & Investments,

Rep. by its Partner, Mr.Mahesh Kumar Bhandari,

No.57, G.N.Chetty Road,

T.Nagar, Chennai – 600 017.

 

2.Mr.R.Sendhil,

S/o. T.Raju,

No.1A, Cheran Salai,

Vigneshwara Nagar,

Porur, Chennai – 600 116.

 

 

 

 

3.The Managing Director,

M/s.Antony Projects Pvt Ltd.,

No.9/20, ‘AA’ Block, 3^rd Street,

Anna Nagar, Chennai – 600 040.

 

4. The Deputy General Manager,

Mr.A.Vinod,

M/s. Antony Projects Pvt Ltd.,

No.9/20, ‘AA’ Block, 3^rd Street,

Anna Nagar, Chennai – 600 040.

.....Opposite Parties

Date of complaint                                        : 24.01.2017

Counsel for Complainant                            : N.Maheswaraiah

Counsel for 1 & 2 Opposite Parties               : Ex – parte (on 10.03.2017)

 

Counsel for 3 & 4 opposite parties                :  K.R.Ashwin Kumar Ex – parte (on

                                                                          16.04.2018) (Non filing of proof

                                                                           affidavit)

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the opposite parties to pay a sum of Rs.19,95,400/- towards the  rectification of the unfinished work and with litigation charges u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The opposite parties 1 & 2 are the owners of the land situated at 127, Medavakkam Village, Tambaram Taluk measuring 0.37 cents. The opposite parties 3 & 4 agreed to develop the said land by constructing flats in the name of the project called as Antony Pallazo. The complainant’s association members agreed to purchase 30 flats from the opposite parties and accordingly the purchasers entered sale cum construction agreement with the opposite parties on 11.02.2012. The opposite parties 3 & 4 agreed to construct and handover the flats within 18 months from the date of agreement. However, they have not completed in time. After demand they completed construction and handed over the flats and all the members of the complainant’s association are in possession of their respective flats.

          2. Though the opposite parties handed over the flats, they have not completed the following pending works.

1. Pending Civil works in common area.
2. A & F blocks lifts – yet to provide
3. AC Gym with Equipments & completion in all respect – not yet provided.
4. Power backup – not yet provided for the common lights as per the agreement.
5. Security Room with necessary fittings – yet to complete.
6. Compound Wall (Proper completion of compound wall in all the sides)- incomplete
7. Power supply – yet to be provide 5 more III phase EB connections (Gym – 1, 2, lifts – 2, Sump Motors – 1, Overhead Tank Motor – 1)
8. Paving – incomplete paving block flooring work in the common area.
9. Water Tank – incomplete.
10. Water Sump Motor (2no’s) – yet to be provided
11. One standby sump motor – yet to be provided
12. Fencing & MS Gate – incomplete.
13. Incomplete electrical works in common area – need to be fixed
14. Pending painting works in common area – painting in the exterior area with emulsion & cement paints.
15. Structural damages – need to fix the Structural Damages
16. Fixing of MS Grill and closing with synthetic sheet in the OTS area – I incomplete.
17. Name Boards & Drive way signs – not yet provided.

The association engaged a Civil Engineer by name Mr.Manivasakan to estimate the cost of the completion for the above works. He surveyed and estimated an amount of Rs.19,95,400/-  to complete the work. The complainant sent legal notice dated 29.09.2016 to the opposite parties and even after receipt of the same they have not completed the demand. Hence the complainant filed this complaint to direct the opposite parties to pay a sum of Rs.19,95,400/- towards the cost of the  unfinished work with litigation charges.

3. WRITTEN VERSION OF THE  OPPOSITE PARTIES 3 & 4 IN BRIEF:

          These opposite parties denied the averments made in the complaint except those that are specifically admitted by them. They admit that they developed residential flats in the project name Antony Pallazo. The complainant entered an agreement with the opposite parties for purchase of the flat. Some of the purchases have not paid the installments and some were due to pay to the tune of Rs.5,00,000/- to them. The complainant cannot be allowed to claim without making full and final settlement of installments. The opposite parties have completed gym and only minor equipments are to be landed. The compound wall and security room are completed. Only few minor works are left unfinished and the opposite parties are ready to finish those unfinished work in the common area on receipt of full sale consideration. Further the material costs were escalated and sale considerations were not paid and therefore the complaint is not maintainable and prays to dismiss the complaint with costs.

          4. The opposite parties 1 & 2 called absent and they were set ex – parte on 10.03.2017. Though the opposite parties 3 & 4 were set ex-parte for non filing of written version on 17.04.2017, they have filed set aside petition with written version on 29.05.2017 and the same was allowed and written version received on file. Again the opposite parties 3 & 4 have not filed their proof affidavit inspite of several opportunities given to them and hence they were set ex-parte on 16.04.2018  for non filing of proof affidavit.

5. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

6. POINT NO :1 

           It is not in dispute that the opposite parties 1 & 2 are the owners of the land situated at 127, Medavakkam Village, Tambaram Taluk measuring 0.37 cents and the opposite parties 3 & 4  agreed to develop the said land by constructing the flats in the name of the project called as Antony Pallazo and the complainant’s association members  agreed to purchase 30 flats from the opposite parties and accordingly the purchasers entered sale cum construction agreement with the opposite parties on 11.02.2012 and the opposite parties 3 & 4 agreed to construct and handover the flats within 18 months from the date of agreement and however, they have not completed in time and after demand they completed construction and handed over the flats and all the members of the complainant’s association are in possession of their respective flats. The complainant’s association members cum purchasers list is marked as Ex.A4.

          7. All the purchasers have entered separate sale cum construction agreement with the opposite parties. The complainant association President is Mr.A.Henri Willams and he is also one of the purchaser and he entered Ex.A1 sale cum construction agreement dated 11.02.2012. As per the agreement he had purchased UDS 464 sq ft. and the opposite parties 3 & 4 agreed to construct “C1 Flat” with super built-up area of 727 sq.ft, in the ground floor of the project. The said Henri Williams only filed this complaint as a representative of the Pallazo Apartment Residence Welfare Association and he also took delivery of his flat. Likewise, the other members of the above said association have also taken possession from the opposite parties 3 & 4.

          8. The grievance of the complainant association is that the opposite parties 3 & 4 failed to complete the following constructions in the said project and also not provided amenities.

1. Pending Civil works in common area.
2. A & F blocks lifts – yet to provide
3. AC Gym with Equipments & completion in all respect – not yet provided.
4. Power backup – not yet provided for the common lights as per the agreement.
5. Security Room with necessary fittings – yet to complete.
6. Compound Wall (Proper completion of compound wall in all the sides)- incomplete
7. Power supply – yet to be provide 5 more III phase EB connections (Gym – 1, 2, lifts – 2, Sump Motors – 1, Overhead Tank Motor – 1)
8. Paving – incomplete paving block flooring work in the common area.
9. Water Tank – incomplete.
10. Water Sump Motor (2no’s) – yet to be provided
11. One standby sump motor – yet to be provided
12. Fencing & MS Gate – incomplete.
13. Incomplete electrical works in common area – need to be fixed
14. Pending painting works in common area – painting in the exterior area with emulsion & cement paints.
15. Structural damages – need to fix the Structural Damages
16. Fixing of MS Grill and closing with synthetic sheet in the OTS area – I incomplete.
17. Name Boards & Drive way signs – not yet provided.

and thereby committed deficiency in service.  

9. The complainant association engaged a Civil Engineer by name S,Manivasakan, who had surveyed the unfinished work  and amenities in the project and estimated an amount of Rs.19,95,400/- to complete the same and the estimate is marked as Ex.A5. Ex.A2 is the e-mail correspondence from the complainant to the opposite parties to complete the work. The opposite parties 3 & 4 admits in their written version that some minor equipments for the gym are to be landed and few minor works are left unfinished and agreed to finish those unfinished work in the common areas on receipt of  payment of balance amount towards sale consideration. The opposite parties 3 & 4 have not stated which flat purchaser was due and how much he was due to pay to them in respect of the flat purchased by them. The bald allegation of the opposite parties 3 & 4 that the purchasers are still due to pay and because of that he had not completed cannot be accepted. The opposite parties have already handover the possession of the flat to the purchases. No builder without receiving the entire sale consideration will put the purchaser in possession. Further, with regard to deficiency in work stated in Ex.A5 estimation, there is no contra evidence on behalf of the opposite parties 3 & 4. Hence as discussed above from the available evidence and the documents, the complainant proved that the opposite parties 3 & 4 have not completed the entire work as stated by the complainant and hence, it is held that the opposite parties 3 & 4 have committed deficiency in service. With regard to opposite parties 1 & 2 they are only the land owner and they have not developed the project and hence it is  held that the opposite parties 1 & 2 have not committed any deficiency in service.

10. POINT NO:2

          The complainant’s association claimed a sum of Rs.19,95,400/-  to rectify the defects or left out work by the opposite parties 3 & 4 as in Ex.A5. Therefore, it would be appropriate to direct the opposite parties 3 & 4 to pay the said amount of Rs.19,95,400/- to the complainant’s association to rectify the defects and also to pay a sum of Rs.3,000/- towards litigation expenses. The complaint in respect of the opposite parties 1 & 2 is liable to be dismissed.

          In the result the Complaint is partly allowed. The Opposite Parties 3 & 4 jointly or severally are   ordered to pay a sum of Rs.19,95,400/- (Rupees nineteen lakhs ninety five thousand  and four hundred only) to the Complainant  towards rectification of the defects in the project Antony Pallazo and also to pay  a sum of Rs. 3,000/- (Rupees three thousand only)  towards litigation expenses. The complaint in respect of the opposite parties 1 & 2 is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.  

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 29^th day of May 2018.

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 11.02.2012                   Sale cum construction Agreement between the

                                               complainant & opposite parties

 

Ex.A2 dated 19.11.2016                   E-mail correspondence from complainant

02.05.2016, 11.06.2016

 

Ex.A3 dated NIL                     Pending Works

 

Ex.A4 dated NIL                     Names of the complainant Association Members

 

Ex.A5 dated NIL                     Estimation Given by Engineer

 

Ex.A6 dated 17.05.2016                   Certificate of Registration of complainant

                                               Association

 

Ex.A7 dated 29.09.2016                   Advocate Notice to the opposite parties

 

Ex.A8 dated 05.10.2016                   Ack. Cards from opposite parties 1,2 &4

 

Ex.A9 dated 05.10.2016                   Returned postal covers

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

 

                                      ……. NIL …..

 

 

 

MEMBER – I                                                               PRESIDENT