Tamil Nadu

South Chennai

CC/81/2015

K.Madhavan, S/o Mr.S.Krishnaswamy - Complainant(s)

Versus

M/s.G.R.Natarajan & Co. Engineers & Contractors ,Partnership Concern - Opp.Party(s)

01 Aug 2019

ORDER

                                                                  Complaint presented on : 13.02.2015

                                                                    Date of Disposal            : 01.08.2019

                                                                                  

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.81/2015

DATED THIS THURSDAY THE 01^ST DAY OF AUGUST 2019

                                 

1. Mr. P. Murugan, IRPS, (Retired),

S/o. Mr. K.M. Piramanayagam,

Plot No.15, Second Street,

Achuthan Nagar,

Ekkattuthangal,

Chennai – 600 032.

Owning the:

Flat -1B, of Block KAPILA, D-109,

Anna Main Road,

K.K. Nagar,

Chennai – 600 078.

 

2. Mr. K. Madhavan,

S/o. Mr. S. Krishnaswamy,

Flat No.3E of Block KAPILA,

D-109, Anna Main Road,

K.K. Nagar,

Chennai – 600 078 as its owner.

 

3. Mr. M.N. Vaidyanathan,

S/o. Mr. M.V. Natesa Iyer,

Flat No.3F of Block KAPILA,

D-109, Anna Main Road,

K.K. Nagar,

Chennai – 600 078 as its joint owner.    

 

4. Mrs. B. Subhalakshmi,

W/o. Mr. S. Balakrishnan,

Flat No.3F of Block KAPILA,

D-109, Anna Main Road,

K.K. Nagar,

Chennai – 600 078 as its joint owner.                         .. Complainants.                                                        

..Versus..

1. M/s. G.R. Natarajan & Co.,

Engineers & Contractors,

Partnership concern,

Represented by its Partner

Mr. N. Sairam,

(Marketing, Finance, Accounts etc.,)

No.1, Jawaharlal Nehru Street,

T. Nagar,

Chennai – 600 017.

 

2. Mr. K. Balakrishnan,

Partner,

M/s. G.R. Natarajan & Co.,

No.1, Jawaharlal Nehru Street,

T. Nagar,

Chennai – 600 017.

 

3. Mr. N. Ramasundaram,

S/o. Late G.R. Natarajan,

Partner,

M/s. G.R. Natarajan & Co.,

No.1, Jawaharlal Nehru Street,

T. Nagar,

Chennai – 600 017.

 

4. Mr. N. Sairam,

S/o. Late Mr. G.R. Natarajan,

Partner,

M/s. G. R. Natarajan & Co.,

No.1, Jawaharlal Nehru Street,

T. Nagar,

Chennai – 600 017.

 

5. Mrs. R. Sarala,

Partner,

M/s. G.R. Natarajan & Co.,

No.1, Jawaharlal Nehru Street,

T. Nagar,

Chennai – 600 017.                                                 ..  Opposite parties.

 

For the complainants                              : Party in person

Counsel for the opposite parties 1 to 5  : M/s. G. Vijayakumar & 

                                                                   others

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 to 5 under section 12 of the Consumer Protection Act, 1986 prays to direct the opposite parties to adhere strictly to the stilt plan for the car park spaces for KAPILA, D-109, Anna Main Road, K.K. Nagar, Chennai as approved in the CMDA Planning Permission No.B/Spl.Bldg./343.2012 in their letter No.BC1/3636/2012 dated:22.08.2012, to direct the opposite parties to remove the deviation made by them from the approved plan of the CMDA made by them from the approved plan of the CMDA above in identifying and allotting the car park spaces to the owners of all flats, to direct the opposite parties to identify and allot 3 covered car park spaces, one each to the complainants 1 & 2 and the third one to the complainants 3 & 4 jointly from the nine as appearing in the stilt plan as in the said CMDA Planning Permission in compliance of the agreement, to direct the opposite parties to refund the amount of Rs.2,00,000/- each of the complainants 1 & 2 and also to the complainants 3 & 4 jointly, the amount which has been charged additionally being the value of the one covered car park and to pay a sum of Rs.50,000/- towards compensation for damages and Rs.2,00,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainant.

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

The complainants 3 & 4 purchased one flat jointly out of 6 flats in Block D-109, Sangeetha Colony, Anna Main Road, K.K. Nagar, Chennai – 600 078 from the Tamil Nadu Housing Board. On 16.12.2011, the complainant and 3 others entered into a Joint Development Agreement with the opposite parties for the development of land by demolishing the old and dilapidated building by constructing 12 new flats in the land as per clause No.2 of the agreement, the said owners of the 6 flats put together transferred 49% of their undivided share of the land to opposite parties and retained 51% with them.  It is submitted that under the terms of the said agreement dated:16.12.2011 entered into with the nomenclature of Agreement for Joint Development, the opposite parties were to demolish the existing building and put up a new construction comprising of 12 flats in 4 floors in addition to the ground floor as stilt floor to encompass 12 covered car parks.  It is submitted that the Apparent consideration in respect of 49% of Undivided share of the land transferred to the opposite parties is for the total value of Rs.3,51,00,000/- as detailed in section 13 of the said agreement.   By that, the cost of construction of one flat with built-up area of 1700 sq. ft. at Rs.1,000/- per sq. ft. is Rs.17,00,000/-.  The value of one covered car park is Rs.2,00,000/- to be delivered to the owners of each flat.   It sumps up to a total of Rs.19,00,000/-.  This sum together with cash consideration of Rs.35,00,000/- and rental compensation of Rs.4,50,000/- for each flat, the full consideration amounts to Rs.58,50,000/- for each of the 6 flats and all the 6 flats put together it is Rs.3,51,00,000/-. 

2.     The complainants submit that the erstwhile owners of all the 6 flats put together with the complainants retained 51% UDS in the said land and transferred only 49% to the opposite party under the agreement for the opposite parties to sell the same to any intending purchaser.  As per clause 14 & 15 of the Joint Development Agreement, the opposite parties agreed to construct and assigned 6 newly built flats to the erstwhile owners including the complainants which were predefined and described in the Schedule ‘H’ of the Joint Development Agreement and the opposite parties could retain and sell the remaining 6 flats in the market.  As per clause 13 of the Joint Development Agreement, the opposite parties charged the complainants Nos. 1 & 2 individually and 3 & 4 jointly Rs.2,00,000/- per head for covered car parking in addition to Rs.19,00,000/- towards cost of each flat.  In addition, there was a consideration of payment in cash.  As per Clause 16 of the said agreement which reads as follows:-

“THE PARTIES OF THE FIRST PART are entitled to use only the Six covered  Car parks to be duly earmarked and allotted to each of them after obtaining plan approval from CMDA, by the PARTY OF THE SECOND PART/PROMOTER, and the PARTY OF THE SECOND PART / PROMOTER is entitled to allot the remaining 6 Car Parks spaces to their Allottees at their discretion”.

The complainants submit that the opposite parties deliberately delayed  the allotment of covered car parking eventhough CMDA has approved the plan as early as 22.08.2012 till handing over the flats in the year 2014.  The complainant submits that the opposite parties charged Rs.2,00,000/- towards the covered car parking in the stilt floor in addition to Rs.19,00,000/- towards the cost of each flat which was illegal and totally against the Joint Development Agreement.  The complainant submits that even after repeated requests and demands, the opposite parties refused to take corrective action.  Hence, legal notice dated:21.08.2014 sent to the opposite parties in detail for which, the opposite parties sent reply notice dated:06.09.2014 with false, baseless and untenable allegations.  The act of the opposite parties 1 & 2 amount 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 opposite parties 1 to 5 is as follows:

The opposite parties 1 to 5 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.    The opposite parties 1 to 5 state that as per clause 16 of Joint Development Agreement as reproduced in the complaint, the opposite parties are allotted any car park to anybody of their desire.  As per the clause 16 of the agreement allotment of the car parks can be done only after obtaining the plan approval that does not mean that allotment should be done immediately thereafter.  The opposite parties 1 to 5 state that the industry practice of the promoter is that the allotment of the car park will be done only after handing over the flats and after completion of all works with respect to common amenities.  The opposite parties state that as per the Joint Development Agreement, the opposite parties has to provide 12 car parking space with a minimum area  as said forth in the Development Control Rules which the opposite party has clearly done.  The opposite parties state that the allotment of car parks is the right enjoined upon by the opposite party by virtue of the said Agreement, the opposite party did not do it unilaterally but only after taking suggestions from the occupants who were present on date of allotment.  After consent of the complainants, the allotment of car parking has done.  The opposite parties state that after completion of construction, the authorities from CMDA inspected the property and issued completion certificate on 10.04.2014 establishes that there is no deviation from the approved plan.  The opposite parties state that the complainant cannot claim any benefit as they have hold 51% of the UDS.  The opposite parties state that the stilt contain several amenities like electrical room, watchman room, toilet, bathroom etc.  Hence, the space for car parking will be changed.    Therefore there is no deficiency in service on the part of the opposite parties 1 to 5 and hence, the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A12 are marked.  Proof affidavit of the opposite parties 1 to 5 is filed and documents Ex.B1 to Ex.B3 are marked on the side of the opposite parties 1 to 5.  Court Exhibits are marked as Ex.C1 & Ex.C2.

 

 

5.      The points for consideration is:-

1. Whether the opposite party is liable to adhere the stilt plan for car parking spaces and the deviation if any made from the CMDA approved plan is liable to be removed?
2. Whether the complainants 1 & 2 and 3 & 4 are entitled to the car parking space in accordance with the terms and conditions of the agreement and CMDA plan permission be identified by the opposite party?
3. Whether the complainants are entitled to get refund of Rs.2,00,000/- each for the complainants 1 & 2 and 3 & 4 jointly from the opposite party as prayed for?
4. Whether the complainants are entitled to a sum of Rs.50,000/- towards damages, Rs.2,00,000/- towards compensation for mental agony with cost of Rs.10,000/- as prayed for?

6.      On point:-

Both parties field their respective written arguments.  Heard the complainant and the opposite party Counsel also.  Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainants pleaded and contended that the 1^st & 2^nd complainants purchased one flat each independently.  The complainants 3 & 4 purchased one flat jointly out of 6 flats in Block D-109, Sangeetha Colony, Anna Main Road, K.K. Nagar, Chennai – 600 078 from the Tamil Nadu Housing Board.  On 16.12.2011, the complainant and 3 others entered into a Joint Development Agreement as per Ex.A1 with the opposite parties for the development of land by demolishing the old and dilapidated building by constructing 12 new flats in the land.   As per clause No.2 of the agreement, the said owners of the 6 flats put together transferred 49% of their undivided share of the land to the opposite parties and retained 51% with them is not denied.  As per clause 14 & 15 of the Joint Development Agreement, the opposite parties agreed to construct and assigned 6 newly built flats to the erstwhile owners including the complainants which were predefined and described in the Schedule ‘H’ of the Joint Development Agreement and the opposite parties could retain and sell the remaining 6 flats in the market.  In addition, there was a consideration of payment in cash.  As per Clause 16 of the said agreement which reads as follows:-

“THE PARTIES OF THE FIRST PART are entitled to use only the Six covered  Car parks to be duly earmarked and allotted to each of them after obtaining plan approval from CMDA, by the PARTY OF THE SECOND PART/PROMOTER, and the PARTY OF THE SECOND PART / PROMOTER is entitled to allot the remaining 6 Car Parks spaces to their Allottees at their discretion”.

Thereby, the complainants shall have the priority.  On the other hand, the discretion of the opposite parties arise only after assigning the car park to the erstwhile owners including the complainants.  As per clause 13 of the Joint Development Agreement, the opposite parties charged the complainants Nos. 1 & 2 individually and 3 & 4 jointly Rs.2,00,000/- per head for covered car parking in addition to Rs.19,00,000/- towards cost of each flat.   In this case, the opposite party has not assigned the covered car parking in accordance with the Joint Development Agreement as per Ex.A1 and approved CMDA Plan as per Ex.A2. 

7.     Further the contention of the complainant is that the opposite parties deliberately delayed  the allotment of covered car parking eventhough CMDA has approved the plan as early as 22.08.2012 till handing over the flats in the year 2014 which amounts to unfair trade practice and deficiency in service.  Further the contention of the complainant is that the opposite parties charged Rs.2,00,000/- towards the covered car parking in the stilt floor in addition to Rs.19,00,000/- towards the cost of each flat which was illegal and totally against the Joint Development Agreement clause 10 to 13 which reads as follows:

10. “The demolition of the existing old building will be carried out by the PARTY OF THE SECOND PART / PROMOTER only after receipt of the Plan approvals/ sanctions for the same and for the proposed constructions from CMDA and the Corporation of Chennai.

The revenue arising out of salvageable materials after meeting the cost of demolition and fees payable to the Corporation of Chennai and barricading arrangements, will be to the account of the PARTY OF THE SECOND PART-/ PROMOTER.

11. Both Parties hereby agree to the General Specifications mentioned in Schedule “J” of this agreement as regards construction of Flats.

12. THE PARTIES OF THE FIRST PART hereby agree to the general norms of the living in Apartments, sharing common facilities and shall abide by the rules and regulations of the Society or Association that would be formed jointly by all the owners of the Flats.

13.  The Apparent Consideration in respect of 49% of Undivided Share of the land described in Schedule ‘I’ is being transferred to the Party of The Second Part/Promoter for the total value of Rs.3,51,00,000/-.”

8.     Further the contention of the complainant is that even after repeated requests and demands, the opposite parties refused to take corrective action.  Hence, legal notice dated:21.08.2014 as per Ex.A9 in detail for which, the opposite parties sent reply dated:06.09.2014 as per Ex.A10 totally against the spirit of the Joint Development Agreement.  Hence, the complainant was constrained to file this case claiming allotment of car parking  as per the CMDA approved plan and refund of the amount received towards car parking with other relief of compensation. Further the contention the complainant is that an Advocate Commissioner is also appointed in this case to inspect the property with due assistance of a qualified Engineer filed his report which is very clearly stating that the car parking allotted are not in consonance with the CMDA approved plan.  

9.     The learned Counsel for the opposite parties would contend that as per clause 16 of Joint Development Agreement as reproduced in the complaint, the opposite parties are allotted any car park to anybody of their desire.  But on a careful perusal of Ex.A1, Joint Development Agreement, it is very clear that the PARTIES OF THE FIRST PART are entitled to use only the car parks to be duly ear marked and after getting the approval plan from CMDA, by the party of the 2^nd part / promoter and the party of the 2^nd part/ promoter is entitled to allow the remaining 6 car parks to their alloties at their own discretion proves the deficiency in service.  Further the contention of the opposite parties is that the industry practice of the promoter is that the allotment of the car park will be done only after handing over the flats and after completion of all works with respect to common amenities.  But no such convention has been pleaded and proved by way of suitable documents in this case established the unfair trade practice.   Further the contention of the opposite parties is that as per the Joint Development Agreement, the opposite parties has to provide 12 car parking space with a minimum area  as said forth in the Development Control Rules which the opposite party has clearly done.  But the opposite parties has not produced any record to prove such allotment.   

10.    Further the contention of the opposite parties is that the allegation of unilateral allotment is imaginary.  After due consent of the complainants, the allotment of car parking has done.  But on a careful perusal of records, it is very clear that no discussion regarding the allotment of car park with the land owners proves the deficiency in service and suppression of material facts by the opposite parties proves unfair trade practice. Further the contention of the opposite parties is that after completion of construction, the authorities from CMDA inspected the property and issued completion certificate on 10.04.2014 establish that there is no deviation from the approved plan.  But it is very clear that the allotment of the car parking was done against the CMDA approved plan.  It is also proved from the Joint Development Agreement, Advocate Commissioner Report as per Ex.C1 & Ex.C2 the car parking space was not in consonants with the CMDA rules.   Further the contention of the opposite parties is that the complainant cannot claim any benefit as they have hold 51% of the UDS.  But at the outset of the Joint Development Agreement, the owners including the complainant transferred only 49% of the UDS to the opposite parties. Further the contention of the opposite parties is that the stilt contain several amenities like electrical room, watchman room, toilet, bathroom etc.  Hence, the space for car parking will be changed; is not acceptable against the Joint Development Agreement and CMDA plan.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 to 5 shall identify and allot each one covered car parking spaces to the complainants 1 & 2 and 3 & 4 as per the CMDA approved plan after removing the deviations and also directed to pay a sum of Rs.2,00,000/- each to the complainants 1 & 2 & 3 & 4 with a compensation of Rs.30,000/- for mental agony and cost of Rs.10,000/- to the complainants.

In the result, this complaint is allowed in part.   The opposite parties 1 to 5 are jointly and severally liable to identify and allot each one covered car parking spaces to the complainants 1 & 2 and 3 & 4 as per the CMDA approved plan after removing the deviations and also to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) each to the complainants 1 & 2 and 3 & 4  with a compensation of Rs.30,000/- (Rupees Thirty thousand only) for mental agony and cost of Rs.10,000/- (Rupees Ten thousand only) to the complainants.  

The aboveamounts shall be payable within 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 01^st day of August 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	16.12.2011	Copy of Agreement for Joint Development
Ex.A2	21.08.2012	Copy of the approved plan of CMDA Chennai including 13 car park spaces in the Stilt Floor plan
Ex.A3	27.09.2012	Copy of letter with the copy of the approved plan issued by CMDA with Building permit dated:20.09.2012
Ex.A4	16.04.21014	Copy of Completion Certificate issued by CMDA
Ex.A5	14.07.2014	Copy of letter of the 3rd complainant to the opposite parties on the issue of car park allotment
Ex.A6		Copy of Annexure XVI – Parking requirement as approved by the Tamil Nadu Government for Chennai Metropolitan Area
Ex.A7	2014 15 July 22:51 hrs 16 July 05:57 hrs 18 July 15:01 hrs & 30 July 07:15 hrs	Copies of four e-mail letter asking the opposite parties for status qua ante
Ex.A8	2014 18 July 11:36	Copy of email reply to the opposite parties received by the 1st complainant
Ex.A9	21.08.2014	Copy of legal notice issued to the opposite parties
Ex.A10	06.09.2014	Copy of reply made by the Counsel of the opposite parties on the legal notice received by them
Ex.A11		The stilt plans i. as annexed to the agreement ii. as approved by CMDA and iii. as changed by the opposite parties for allotment
Ex.A12	08.10.2015	Power of Attorney - Original

 

OPPOSITE PARTIES 1 TO 5 SIDE DOCUMENTS:-  

Ex.B1	31.07.2014	Copy of minutes of meeting held at GRN
Ex.B2		Copy of allotment of car parks
Ex.B3		Copy of car parking plan

 

Court Exhibits:-

Ex.C1	04.06.2018	Copies of notice to the parties
Ex.C2	09.02.2018	Report of Mr. P. Mariappan, Consulting Civil and Structural Engineer

 

                              

MEMBER                                                                                PRESIDENT