Tamil Nadu

South Chennai

283/2011

C.Sundari & Others - Complainant(s)

Versus

M/s.Elite Estates - Opp.Party(s)

M/s. N.Nagu Sah

10 May 2019

ORDER

                                                                        Date of Filing  : 14.09.2011

                                                                          Date of Order : 10.05.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

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

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.283/2011

DATED THIS FRIDAY THE 10^TH DAY OF MAY 2019

                                 

1. Mrs. C. Sundari,

W/o. Late. Mr. R. Chandrasekaran,

Flat No.16/6, Door No.16,

Kuppuswamy Road,

Chetpet,

Chennai – 600 031.    

 

2. Mr. P. Sudhakaran,

S/o. Late. Mr. C. Prabhakaran,

Flat No.16/6, Door No.16,

Kuppuswamy Road,

Chetpet,

Chennai – 600 031.   

 

3. Mrs. S. Bhavani Sunderasan,

W/o. Mr. K. Sunderasan,

Flat No.16/6, Door No.16,

Kuppuswamy Road,

Chetpet,

Chennai – 600 031.        

 

1 to 3 Represented by their Power of Attorney

Mrs. K. Suguna,

No.16, Durgai Apartments,

6^th Cross Street,

New Colony,

Chromepet,

Chennai – 600 044.                                              .. Complainants.                                                  

 

      ..Versus..

 

1. M/s. Elite Estates,

Represented by its partner

Mr. K.G. Lakshminarayanan,

No.28/27, West Road,

West CIT Nagar,

Chennai – 600 035.  

 

2. Mr. K.V.L. Rajalingam,

S/o. Mr. K.R. Viswanathan,

No.28/27, West Road,

West CIT Nagar,

Chennai - 600 035.                                               ..  Opposite parties.

 

Counsel for the complainants         : M/s. N. Nagu Sah

Counsel for the 1^st opposite party  : M/s. S. Natarajan

2^nd Opposite party                           : Exparte

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to direct the 1^st opposite party to pay a sum of Rs.13,60,000/* towards the value of incomplete works of the flat and common area deliverable to the 3^rd complainant, being abandoned by the 1^st opposite party, to ay sum of Rs.2,35,000 towards damages payable at the rate of Rs.5,000/- p.m. from 01.10.2007 to till the date of this complaint and to pay a sum of Rs.3,00,000/- towards compensation for mental agony and torture with cost of Rs.30,000/- to the complainant.

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

The complainants submit that they are the mother, son and daughter of Late Mr. C. Prabakaran who was the absolute owner of the premises bearing Door No.6, 10^th Street, Balaji Nagar, Nanganallur, Chennai – 600 061, comprised in Old S.No.86/1 as per patta No.861 the sub divided New Survey No.86/21 situated at Old No.135, New No.96, Ullagaram Village, Tambaram Taluk measuring 2266.25 sq. ft.  The said C. Prabakaran died intestate on 16.09.2009 leaving behind the complainants are the legal heirs.  During the life of C. Prabakaran, he entered into a Development Agreement with the 1^st opposite party on 02.07.2006 for the development of the said property measuring 2266.25 sq. ft. into flats.  The deceased C. Prabakaran and the 1^st opposite party mutually agreed that the 1^st opposite party shall construct 4 flats (i.e.) 2 flats in the ground floor and 2 flats in the 1^st floor with 4 covered car parking at the cost of the 1^st opposite party and handover one flat namely the front side first flat No.4 measuring 1000 sq. ft including common area together with one covered car park measuring 120 Sq. ft. on or before 30.09.2007, apart from payment of non-refundable monetary consideration of Rs.14,00,000/-.  The 1^st opposite party paid a sum of Rs.14,00,000/- to the said C. Prabakaran in lieu of the 3 flats towards the share of the 1^st opposite party.  

2.     The complainants submits that the 1^st opposite party had structurally completed the construction of 4 flats.  But failed to construct 4 covered car parking and delivered the flat as per the specifications in the Development Agreement including flat No.4 allocated to the said C. Prabakaran.   While C. Prabakaran was alive, he settled the front side 1^st floor, flat No.4 and covered car parking together with undivided share of 566.56 sq. ft. of land in the said property absolutely in favour of his daughter, the 3^rd complainant through a settlement deed dated:15.12.2008 who is living in abroad.   The 1^st opposite party as per the Development Agreement has not constructed the house and delivered possession of the house.  On the contrary, the 1^st opposite party fraudulently created equitable mortgage over the entire property including the 3^rd complainant’s undivided share of 566.56 sq. ft with M/s. Citi Union Bank Limited, Kumbakonam was came to the knowledge of the complainant through the Encumbrance Certificate dated:23.11.2009.  The complainant submits that the 1^st opposite party is not entitled to mortgage the 3^rd complainant’s undivided share and flat No.4.  The complainant submits that no Power of Attorney was executed by C. Prabakaran with regard to the undivided share of 566.56 sq. ft. and flat No.4.  The 1^st opposite party knowing fully well availed a loan of Rs.27,00,000/- mortgaging the entire property which amounts to unfair trade practice and deficiency in service.  Hence, the complainant issued Advocate Notice dated:01.03.2010, 24.01.2011 & 17.06.2011 for which, the opposite parties has not sent any reply and has not come forward for due compliance of the agreement.   The act of the opposite parties amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

3.      The brief averments in the written version filed by 1^st opposite party is as follows:

The 1^st opposite party specifically deny each and every allegation made in the complaint and put the complainant to strict proof of the same.    The 1^st opposite party states that he does not know the details of Power of Attorney dated:25.09.2009 registered as document No.2816/2009, SRO, Chennai North and Settlement Deed registered as document No.3363/2008 dated:15.12.2008 SRO, Alandur.  The 1^st opposite party states that he entered into a Development Agreement dated:02.07.2006 for construction of 4 flats and a sum of Rs.14,00,000/- was paid towards monetary consideration in addition to one flat to the land owner Prabhakaran.   Accordingly, the Power of Attorney was given to the 1^st opposite party.  The 1^st opposite party states that there is no agreement for civil Concrete car park and only agreed only a normal shed like car park alone agreed and was constructed.  The 1^st opposite party states that the allegation of fraudulent creation of mortgage is totally denied.  The equitable mortgage was executed during the life time of C. Prabakaran for a sum of Rs.27,00,000/- related to 3 flats Rs.9,00,000/- each.  The 1^st opposite party states that he is ready and willing to complete the work as per the agreement dated:02.07.2006 if the Development Agreement is revived and a new Power of Attorney is given.  The 1^st opposite party states that he paid a sum of Rs.2,00,000/- at the rate of Rs.5,000/- and assured for future payment but the complainants issued notices.  Therefore there is no deficiency in service on the part of the 1^st opposite party and hence, the complaint is liable to be dismissed.

4.     Initially, Mr. S. Nataraj, Counsel for the 1^st opposite party undertakes to file Vakalath and Written Version for the 2^nd opposite party.  But failed to file Vakalath and file Written Version within the stipulated time and hence, the 2^nd opposite party was set exparte.

5.     To prove the averments in the complaint, the complainants has filed proof affidavit as their evidence and documents Ex.A1 to Ex.A21 are marked.  Proof affidavit of the 1^st opposite party is filed and no document is  marked on the side of the 1^st opposite party.  Court Exhibits was filed from Ex.C1 to Ex.C4.

6.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.13,60,000/- towards the value of the incomplete work of the flat and common areas committed by the 1^st opposite party as prayed for?
2. Whether the complainant is entitled to a sum of Rs.2,35,000/- towards damages payable at the rate Rs.5,000/- per month from 01.10.2007 till the date of filing this complaint with a compensation of Rs.3,00,000/- for deficiency in service and cost of Rs.30,000/- as prayed for?

7.      On point:-

The 2^nd opposite party remained exparte.  The 1^st opposite party’s Counsel died long back after filing written version and proof affidavit and represented that the written version and proof affidavit may be treated as written argument and oral argument. The complainants filed his written argument.  Perused the records namely the complaint, written version, proof affidavits and documents.   The complainants pleaded and contended that they are the mother, son and daughter of Late Mr. C. Prabakaran who was the absolute owner of the premises bearing Door No.6, 10^th Street, Balaji Nagar, Nanganallur, Chennai – 600 061, comprised in Old S.No.86/1 as per patta No.861 the sub divided New Survey No.86/21 situated at Old No.135, New No.96, Ullagaram Village, Tambaram Taluk measuring 2266.25 sq. ft.  The said C. Prabakaran dies intestate on 16.09.2009 leaving behind the complainants are the legal heirs.  Ex.A6 is the copy of Death Certificate of C. Prabakaran.  Ex.A21 is the copy of Legal Heir Certificate of C. Prabakaran.  During the life of C. Prabakaran, he entered into a Development Agreement, Ex.A1 with the 1^st opposite party on 02.07.2006 for the development of the said property measuring 2266.25 sq. ft. into flats.  The deceased C. Prabakaran and the 1^st opposite party mutually agreed that the 1^st opposite party shall construct 4 flats (i.e.) 2 flats in the ground floor and 2 flats in the 1^st floor with 4 covered car parking at the cost of the 1^st opposite party and handover one flat namely the front side first flat No.4 measuring 1000 sq. ft including common area together with one covered car park measuring 120 Sq. ft. on or before 30.09.2007, apart from payment of non-refundable monetary consideration of Rs.14,00,000/-.  Ex.A1 is the Memorandum of Agreement for Joint Venture.  The 1^st opposite party paid a sum of Rs.14,00,000/- to the said C. Prabakaran in lieu of the 3 flats towards the share of the 1^st opposite party.  But on a careful perusal of the Development Agreement, Ex.A1, the said C. Prabakaran had executed 3 General Power of Attorney Deeds dated:17.07.2006 and 27.09.2006 in favour of the 1^st  opposite party and 2^nd opposite party as per Ex.A2, Ex.A3 & Ex.A4 in respect of undivided ¾ share in the property. 

8.     Further the contention of the complainant is that the 1^st opposite party had structurally completed the construction of 4 flats.  But failed to construct 4 covered car parking and delivered the flat as per the specifications in the Development Agreement, Ex.A1 including flat No.4 allocated to the said C. Prabakaran.   While C. Prabakaran was alive, he settled the front side 1^st floor, flat No.4 and covered car parking together with undivided share of 566.56 sq. ft. of land in the said property absolutely in favour of his daughter, the 3^rd complainant through a settlement deed dated:15.12.2008 as per Ex.A5 who is living in abroad.   The 1^st opposite party as per the Development Agreement, Ex.A1 has not constructed the house and delivered possession of the house.  On the contrary, the 1^st opposite party fraudulently created equitable mortgage over the entire property including the 3^rd complainant’s undivided share of 566.56 sq. ft with M/s. Citi Union Bank Limited, Kumbakonam was came to the knowledge of the complainant through the Encumbrance Certificate dated:23.11.2009 as per Ex.A8.  The 1^st opposite party is not entitled to mortgage the 3^rd complainant’s undivided share and flat No.4.  No Power of Attorney also executed by C. Prabakaran with regard to the undivided share of 566.56 sq. ft. and flat No.4.   The mortgage by the 1^st opposite party in favour of Citi Bank regarding Flat No.4 the undivided share of 566.56 sq. ft. in the nonest in law. The 1^st opposite party knowing fully well availed a loan of Rs.27,50,000/- mortgaging the entire property which amounts to unfair trade practice and deficiency in service.  Hence, the complainant issued Advocate Notice dated:01.03.2010, 24.01.2011 & 17.06.2011 as per Ex.A9, Ex.A13 and Ex.A18 for which, the opposite parties has not sent any reply and has not come forward for due compliance of the agreement which amounts wanton negligence.  The complainant appointed a Civil Engineer for due inspection of the flat No.4 and covered car parking.   The Engineer who is an expert in construction estimated at Rs.13,60,000/- for completion of all work.  As per Ex.A16, the cost of construction of covered car parking is Rs.2,00,000/-.   

9.     After filing the case, the 1^st opposite party filed a petition for due appointment of Advocate Commissioner.  This Hon’ble  Forum also appointed Mr. K. Krishnamoorthy, Advocate Commissioner for due inspection with assistance of Civil Engineer who filed his report Ex.C1 which is tallying with the report filed by the Expert Engineer Ex.A16 except cost of construction to the tune of Rs.2,00,000/- proves that the 1^st opposite party has not constructed the flat properly till date caused great mental agony and loss which amounts to deficiency in service.  The complainant is claiming a sum of Rs.2,35,000/- towards damages at the rate of Rs.5,000/- per month for the wanton, deliberate delay. 

10.    The contention of the 1^st opposite party is that he does not know the details of Power of Attorney dated:25.09.2009 registered as document No.2816/2009, SRO, Chennai North and Settlement Deed registered as document No.3363/2008 dated:15.12.2008 SRO, Alandur.  But admittedly, the said documents are coming under the purview of public documents since the documents are duly registered.   Admittedly, the 1^st opposite party entered into a Development Agreement dated:02.07.2006 for construction of 4 flats and a sum of Rs.14,00,000/- was paid towards monetary consideration in addition to one flat to the land owner Prabhakaran.   Accordingly, the Power of Attorney was given to the 1^st opposite party.  Further the contention of the 1^st opposite party is that there is no agreement for civil Concrete car park and only agreed only a normal shed like car park alone agreed and was constructed.  But as per the Commissioner’s Report and the evidence on record speaks very clearly about the construction of covered car parking which is not constructed till date.   Further the contention of the 1^st opposite party is that the allegation of fraudulent creation of mortgage is totally denied.  The equitable mortgage was executed during the life time of C. Prabakaran for a sum of Rs.27,00,000/- related to 3 flats Rs.9,00,000/- each.  But the Encumbrance Certificate clearly speaks that the 1^st opposite party encumbered the entire land which is unethical and amounts to unfair trade practice.   Since, the 1^st opposite party is not entitled to mortgage flat No.4 in the 1^st floor and undivided share of 566.65 sq. ft separated to the owner Mr. C. Prabhakaran. 

11.    Further the contention of the 1^st opposite party is that he is ready and willing to complete the work as per the agreement dated:02.07.2006 if the Development Agreement is revived and a new Power of Attorney is given.  But as per the Development Agreement and a Power of attorney executed by C. Prabakaran, the 1^st opposite party has not completed the work within the stipulated time which amounts to deficiency in service.   Further the contention of the 1^st opposite party is that he paid a sum of Rs.2,00,000/- at the rate of Rs.5,000/- and assured for future payment but the complainants issued notices.   But on a careful perusal of records, the opposite party has not produced any record to prove such payment.  Further it is seen from the Advocate Commissioner’s Report and Engineer’s Report that the opposite parties has not completed the work to the tune of 11,65,944/-.   Hence, the opposite parties are liable to pay a sum of Rs.2,35,000/- at the rate of Rs.5,000/- from 01.10.2007.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.11,65,944/- being the value of incomplete works of the flat, to pay a sum of Rs.2,35,000/- towards damages at the rate of Rs.5,000/- from 01.10.2007 and to pay a sum of Rs.50,000/- towards compensation for mental agony and the opposite parties 1 & 2 jointly and severally liable to release the mortgage related to 566.56 sq. ft. with cost of Rs.5,000/- to the complainants.

In the result, this complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.11,65,944/- (Rupees Eleven lakhs sixty five thousand nine hundred and forty four only) being the value of incomplete works of the flat with interest at the rate of 9% per annum from the date of complaint (i.e.) 14.09.2011 and to  pay a sum of Rs.2,35,000/- (Rupees Two lakhs thirty five thousand only) towards damages at the rate of Rs.5,000/- (Rupees Five thousand only) from 01.10.2007, to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for mental agony and also the opposite parties 1 & 2 are jointly and severally liable to release the mortgage  related to 566.65 sq. ft. with cost of Rs.5,000/- (Rupees Five thousand only) to the complainants.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this 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 Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 10^th day of May 2019. 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

		Copy of Memorandum of Agreement for Joint Venture
		Copy of General Power of Attorney in favour of the 1st opposite party
		Copy of General Power of Attorney in favour of the 2nd opposite party
		Copy of General Power of Attorney in favour of the 3rd opposite party
		Copy of Settlement Deed
		Copy of Death Certificate of C. Prabhakar
		Copy of General Power of Attorney given by the complainants
		Copy of Encumbrance Certificate
		Copy of legal notice by the complainant’s Counsel
		Coy of postal acknowledgement signed by the 1st opposite party
		Copy of postal returned cover of the 2nd opposite party
		Copy of postal acknowledgement signed by M/s. Citi Union Bank
		Copy of legal notice by the complainant’s Counsel
		Copy of postal acknowledgement signed by the 1st opposite party
		Copy of postal returned cover of the 2nd opposite party
		Copy of Engineer’s Report
		Copy of photographs
		Copy of legal notice by the complainant’s Counsel
		Copy of postal acknowledgment signed by the 1st opposite party
		Copy of postal returned cover of the 2nd opposite party
		Copy of Legal Heir Certificate of C. Prabhakaran

 

1^ST OPPOSITE PARTY SIDE DOCUMENTS:-  NIL

Court Exhibits:-

Ex.C1	04.06.2015	Copy of notice
Ex.C2	20.06.2015	Copy of Minutes of inspection
Ex.C3	23.10.2015	Copy of Inspection Report along wit estimation of the Civil Engineer
Ex.C4		Photographs of the petition flat and Common Areas and CD

 

 

MEMBER                                                                  PRESIDENT