Tamil Nadu

North Chennai

CC/118/2015

M.Hariraj - Complainant(s)

Versus

M/s.Color Homes and Project Pvt Ltd - Opp.Party(s)

G.R.Associates

28 Mar 2018

ORDER

 

                                                            Complaint presented on:  06.07.2015

                                                                Order pronounced on:  28.03.2018

 

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

 

WEDNESDAY  THE 28^th DAY OF MARCH 2018

 

C.C.NO.118/2015

 

 

Mr.M.Hariraj,

2/1 Hunters Lane, Choolai,

Chennai – 600 112.

                                                                                    ….. Complainant

 

..Vs..

 

M/s.Color Homes and Project Pvt. Ltd.,

New No.19, ‘W’ Block, 7^th Street,

Anna Nagar, Chennai – 600 040,

Rep by its Managing Director.

 

.....Opposite Party

Date of complaint                                 : 04.08.2015

Counsel for Complainant                      : M/s. G.R.Associates, Niranjan           

                                                                    Raja Gopalan

 

Counsel for Opposite Party                      : M/s. A.Ilangovan C.Samivel &

                                                                    S.Sathish Kumar

 

 

 

O R D E R

 

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

          This complaint is filed by the complainant to pay a sum of Rs.6,40,000/- towards compensation towards loss of area, shelter and rental arrears and also to pay compensation for mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF: 

          The complainant is the owner of the property at No.35/44, Second Street, Vyasar Nagar, Vyasarpadi Chennai-39. The opposite party entered into a joint venture agreement on 12.03.2012 with the complainant to develop his property. On the same day, the complainant executed a power of attorney in favour of the opposite party/ M/s. Colour Homes & Projects Pvt. Ltd. The opposite party agreed to complete the flats and handover the same along with completion certificate by July 2013. The opposite party has not commenced constructions as agreed. However he informed the complainant that the project will be completed and he will compensate by paying rent for the delay period.

          2. The complainant in February 2014 received a registered post in the name of M/s Oyester Home Pvt.Ltd, which contained a key for 3 flats along with a letter from M/s Oyester Homes Pvt.Ltd, stating that as per the joint venture agreement, we have completed the construction work and are enclosing necessary documents and keys. The complainant has not actually entered agreement with M/s. Oyester Home Pvt.Ltd. Hence the complainant expressed his objection and displeasure on undertaking the project in the name of M/s. Oyester Home Pvt.Ltd.

          3. Mr. Balasundaram who was the Director of M/s. Color Homes & Projects Pvt. Ltd and started this new company by name M/s. Oyester Home Pvt.Ltd and misusing the power of attorney given by the complainant to the joint venture agreement given by him. The newly constructed flats have about 25% lesser area than the agreed area. Further, till date completion certificate was not given. Due to the delay in handing over the flats the complainant incurred a loss of rental arrears towards a sum of Rs.2,70,000/-. The complainant neither able to occupy the property nor able to sell it at a good price in view of the builder name has been changed and thereby suffered with mental agony. Hence the complainant filed this complaint to direct the opposite party to pay a sum of Rs.6,40,000/- towards compensation towards loss of area, shelter and rental arrears and also to pay compensation for mental agony with cost of the complaint.             

4. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

           Dr. G.Sarala Hariraj, Wife of the complainant being the owner of the property approached and contacted by Mr.Balasubrundaram, erstwhile Director of M/s. Color Homes and Projects Pvt. Ltd., and entered into a joint venture agreement in the name of the said company, without proper approval from this opposite party who was then Managing Director of the said company. This opposite party states that the agreement is only between the land owner and the company. The complainant is neither owner of the subject property nor party to the agreement and he has no right to approach this Hon’ble Forum. The said director Mr. Balasundaram had negotiated the deal and entered into a joint venture Agreement, who left the company to start his own company in the name of M/s. Oyester Homes Pvt. Ltd., had sent the keys and documents after completing the projects.

          5. The opposite party states that the alleged joint venture Agreement entered Dr.G. Sarala Hariraj, wife of the complainant and erstwhile Director of M/s. Color Homes and Projects Pvt.Ltd., between them was drafted by the complainant herein who is a practicing Advocate at Chennai. This opposite party states that a construction was completed as per the said agreement as early as on 15.09.2013 and the share of the company was sold and occupied by the prospective purchasers. The said Dr. Sarala Hariraj did not come forward to receive the keys of the flats allotted to her in terms of the said agreement, instead the complainant being the Advocate started threatening the company officials and the purchaser of the flat from the company.

          6.   The services availed by the complainant from this opposite party is for commercial purposes which is purely for earning profits. As such, the above complaint is liable to be dismissed as not maintainable. The agreement of joint venture of property was entered only between Mrs. Sarala and Color Homes and Projects; however the complaint has been initiated by Mr.Hariraj and as such the complaint itself liable to be dismissed in limine. This opposite party states that the company Color Homes and Projects Pvt.Ltd., is a limited liability company and the same was dissolved with effect from 17.02.2015 as such the complaint has to be rejected in toto. The present complaint is filed on the basis of the joint venture agreement, for enforcing such agreement only civil suit alone is maintainable. The law has been well settled that when there are intricacy issues, same to be resolved between the parties the civil court is the only remedy. The joint venture agreement either of the parties shall resolve the dispute between them only by way of aberration.

          7.  The complainant with a malafied intention did not make the said Mr. Balasundaram as a party and as such the present complaint itself is not maintainable. This opposite party states that even as per the admissions made in the complaint the common area as provided in the agreement is 25% and the same is within the admissible area as provided by all the builders. A police complaint was made to K4 Police Station. The said police conducted enquiry between the land owner and the Director Mr. Balasundaram. The complainant is a practicing Advocate and he created lot of problems. There is no merit in the complaint and the opposite party prays to dismiss the complainant with costs.

8. POINTS FOR CONSIDERATION:

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

               party?

 

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

               extent?

 

9. POINT NO :1 

          The admitted facts are that the complainant’s wife Dr.G. Sarala Hariraj is the owner of the property at No.35/44, IInd street, Vyasar Nagar, Vyasarpadi Chennai-39 and the opposite party entered into Ex.A1 joint venture agreement on 12.03.2012 with the complainant’s wife to develop their property and on the same day, she executed a power of attorney in favour of the opposite party/ M/s. Colour Homes & Projects Pvt. Ltd and as per Ex.A1, the opposite party agreed to construct 6 flats in the said land and the complainant’s wife and the opposite party has to take 3 flats each  and to complete the owner’s flats and handover within 12 months from  the date of getting planning permission from the competent authority and if extended, the builder agreed to pay the rent for all the 3 flats to the owner.

          10. The complainant alleged deficiency against the opposite party is that

1. She had entered joint venture agreement to avail service only with the opposite party and however the opposite party without the knowledge of the complainant entrusted the work to carry out by M/s. Oyester Home Pvt.Ltd and they delivered the flats key is deficiency on the part of the opposite party,
2. The opposite party M/s. Color Homes and Project Pvt.Ltd., is a brand name known to everyone in the market and whereas the M/s. Oyester Home Pvt.Ltd is not popular in the market and even if the complainant wants to sell the flat the same will not get more money is deficiency,
3. The completion certificate not given to the complainant till date is a deficiency,
4. The opposite party has not delivered the flats in time and belatedly by 7 months. and
5. Further reserving 25% common area amounts misappropriating the property and thereby committed the above deficiencies.

     11. Admittedly the complainant’s wife entered Ex.A1Joint Venture Agreement   with the opposite party. On behalf of the opposite party only the Director has signed in the agreement. Therefore, having on behalf of the opposite party the agreement was entered, the opposite party only has to complete the construction and handed over the flats to the complainant’s wife. M/s. Oyester Home Pvt.Ltd is not a party to the agreement. Hence the said M/s. Oyester Home Pvt.Ltd completed the work and handed over the flats is unacceptable and deficiency on the part of the opposite party.

      12. M/s. Color Homes and Project Pvt.Ltd., is a brand name known to everyone in the market and whereas the M/s. Oyester Home Pvt.Ltd is not a popular company in the market is acceptable. Furthermore, M/s. Oyester Home Pvt.Ltd is not a party to the agreement. Certainly the opposite party name is a brand popular name and their buildings will fetch more value is acceptable. On the other hand there is no evidence to accept that M/s. Oyester Home Pvt.Ltd is also an equal company to the opposite party. Even if the complainant wants to sell the flat the same will not get more money. Therefore as contended by the complainant the flats handed over by M/s. Oyester Home Pvt.Ltd have no more value proves that the opposite party committed deficiency in service to the complainant.     

13. Every builder has to handover completion certificate to the flat owners at the time of handing over the possession. Admittedly the opposite party has not handed over the completion certificate to the complainant is a deficiency on his part.

14. The opposite party has to complete construction and hand over the flat to the complainant within one year from the date of obtaining approval of the plan. The opposite party would contend that the approval plan was not filed by the complainant and hence there is no delay in handing over the flat. The complainant would specifically state that there is a delay of 7 months from July 2013 to February 2014 in handing over the possession. The approval plan has been obtained only by the opposite party and who would be having the plan in his custody. When the complainant specifically alleges that there is a delay of seven months in delivering possession, the opposite party should have filed the plan and established that there is no delay in delivering the flats. Therefore in such circumstances we hold that there is a delay of 7 months in handing over the possession of the flats to the complainant.

15. The complainant would allege that reserving 25% common area amounts to misappropriating the property. To prove this allegation, the technical evidence of measuring the property by engaging an engineer by the complainant is necessary. Mere evidence of the Complainant alone is not sufficient to accept for the proof of this allegation. Therefore in this regard we hold that the complainant has not proved deficiency against the opposite party.

16. The opposite party raised several contentions that the complaint is not sustainable and liable to be dismissed. The first contention is that the complainant wife alone entered agreement with the opposite party and hence this complainant has no locus standi to maintain this complaint. The Hon’ble National Commission held in II (1991) CPJ 639(NC) (Punjab National Bank, Bombay vs K.B.Shetty) that the husband can maintain the consumer complaint on behalf of his wife. In view of the above referred order we hold that this complaint is maintainable.

17. The next objection of the opposite party is that the services availed by the complainant from this opposite party is for commercial purposes which is purely for earning profits. The complainant is the land owner and the opposite party offered to provide service for constructing flats and to take his share. So the complainant is entitled the flats for her ratio as per agreement. The opposite party only provided service only for construction and the same cannot be construed as commercial service and hence this objection also not sustainable.

18. The next contention is that the opposite party company was dissolved with effect from 17.02.2015 and therefore this complaint is liable to be rejected. No proof filed on behalf of opposite party that the company was dissolved. Even otherwise, the opposite party himself defending the case and one of the Directors entered joint venture agreement on behalf of the opposite party and they only provided service to the complainant and hence this objection is also rejected.

19. The next contention is that joint venture agreement has to be enforced only through civil suit and therefore this complaint not maintainable. The Hon’ble Supreme Court held in 2016 (8) SCC 429 that joint venture agreement person is a consumer. In view of this ratio this complaint is maintainable in this forum. Further the joint venture agreement provides to resolve the dispute only by way of Arbitration. Section 3 of the CP Act provides additional remedy not in derogation of the provisions of any other law in force. Therefore this complaint is well sustainable in this forum and all the objections raised by the opposite party are rejected.

20. The opposite partyrelied on the judgment of the High Court, Madras reported in 2007 (2) CTC 553( Govindarasami Naidu vs Shanmuga Nattar and another) and another order of the Hon’ble State Commission Delhi in First Appeal No.126/2017 dated 21.04.2017 and contended that as per those judgments the complaint is liable to be dismissed. We perused the same. The facts in those judgments are differing from the facts of the case in hand and the same are not in support of the case of the opposite party. Therefore from the forgoing discussions, we hold that the opposite party has committed deficiency in service and accordingly this point is answered.

21. POINT NO:2

          We held above that the opposite party committed deficiency in service in not handing over the possession in time. The complainant  himself claimed a sum of Rs.2,70,000/- towards rental arrears for 6 months and the same can be ordered to be payable by the opposite party to the complainant. The complainant further claimed charges for common area and shelter. We already held that how 25% common area was reserved has not been proved by the complainant. Therefore, the compensation sought for common area is not entitled by the complainant from the opposite party. How the complainant is entitled for shelter compensation has not been proved by the complainant and hence she is not entitled for the same. Due to the deficiency committed by the opposite party, the complainant suffered with mental agony is accepted and for the same it would be appropriate to direct the opposite party to pay sum of Rs.1,00,000/- would meet ends of justice, besides a sum of Rs.5,000/- towards litigation expenses. The complaint in respect of the other reliefs is liable to be dismissed.

         In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs.2,70,000/- (Rupees two lakhs seventy thousand  only) towards the rental arrears  to the Complainant and also to pay  a sum of Rs. 1,00,000/- (Rupees one lakh only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses. The complaint in respect of the other reliefs 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 rental arrears and compensation 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 28^th  day of March 2018.

 

MEMBER – I                                                                PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 12.03.2012	Joint venture agreement entered between Dr.G.Sarala Hariraj (Petitioner’s Wife) and M/s.Color Homes and Projects Pvt. Ltd.,
Ex.A2 dated 25.07.2012	Construction agreement M/s. Color Homes and Projects Pvt. Ltd., (on behalf of Dr.G.Sarala Hariraj through) and Mr.D.Kanagamani (Sample Deed)
Ex.A3 dated 17.10.2012	Sale deed between M/s. Color Homes and Projects Pvt. Ltd., on behalf of Dr.G.Sarala Hariraj through GPA) and Mr.D.Kangamani (Sample Deed)
Ex.A4 dated 21.02.2014	Communication from Oyester Homes (Chennai ) Pvt. Ltd., to the petitioner’s wife

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

 

                                            …… NIL ……

 

         

 

MEMBER – I                                                               PRESIDENT