Tamil Nadu

South Chennai

CC/261/2015

M/s.B.Vinod Bala - Complainant(s)

Versus

M/s.Green Avenus Homes and Gardens - Opp.Party(s)

M/s. BFS Legal

06 Jul 2016

ORDER

   Date of Filing :   24.04.2015

                                                                      Date of Order :   06.07.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

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

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

                 DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.261/2015

WEDNESDAY THIS  6^TH  DAY OF JULY 2016

 

Mr. B. Vinod Bala,

S/o. Mrs. B.Umamageswari,

No.A 304, Walnut Block,

PGW apartments,

66 Vanagaram Road,

Athipet, Chennai 600 058.                             ..Complainant

 

                                         ..Vs..

 

M/s. Green Avenue Homes and Gardens,

Rep. by its Managing Director

Mr.D.Dhinakaran,

No.305-E/170, 1^st Floor,

TTK Road, Alwarpet,

Chennai 600 018.                                           ..Opposite party    

 

 

For the Complainant                  :   M/s. P.V.Balasubramaniam & others       

For the opposite party               :   Exparte.    

 

 

 

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

1.     Complaint under section 12  of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite party to handover possession of the Villa and also interest at the rate of 18% p.a sum of Rs.10,28,359.73  and also to pay a sum of Rs.2,63,500/- towards the rental loss suffered by the complainant for his residential occupation and to pay a sum of Rs.5,00,000/- as compensation  and to pay cost of the complaint.   

2.     Even after receipt of the notice from this forum in this proceeding, the  opposite party was not appeared before this Forum and did not file any written version.  Hence the opposite party was set exparte on 11.1.2016.      

3.       Perused the complaint filed by the complainant, proof affidavit  and the documents Ex.A1 to Ex.A9 filed on the side of complainant and considered the arguments of the learned counsel  appearing for the complainant.

4.     Complainant has stated that the complainant has booked a villa proposed to be constructed by the opposite party, which is doing business of construction as promoters of the residential project “Centurion Avenue” mentioned in the complaint, and made an advance payment of Rs.1,00,000/- and on the same day agreement of the land development construction was also entered between himself and opposite party for purchase of flat No 86A comprised in the said land.  The  said construction agreement, dated 06.07.2012 is filed as Ex.A1.  On the same day a sale agreement  Ex.A2 for the purchase of plot  was executed by the opposite party and subsequently on 26.11.2012 a registered  sale deed for the purchase of the  said plot  was executed by the opposite party in favour of the complainant which is filed as Ex.A3.  Further the complainant has stated that he has also availed LIC housing loan, the payment for the construction agreement were directly released by LIC to the opposite party account on completion of the certain stage of the construction as agreed in the agreement.  Accordingly the complainant has stated that the opposite party has totally received a sum of Rs.40,41,250/-  against the total agreed amount of Rs.41,95,000/-. As per the construction agreement the opposite party has agreed to deliver the constructed villa to the complainant within 15 months from the date of the construction agreement. i.e in the month of October 2013.  But despite of the several demands and requests made by the complainant, the opposite party have not completed the construction of the Villa and not delivered the same to the complainant as agreed in the construction agreement, in support of the same complainant has filed copies of the communication of emails Ex.A6, Ex.A7 and the copy of the legal notice sent by the complainant to the opposite party as Ex.A8.  The complainant has filed this complaint, stating that the said attitude of the opposite party that having received nearly 95% of the total cost of the construction cost from the complainant the opposite party not completing the construction and handing over the same as per the agreement till this date amounts to deficiency of service which caused the complainant mental agony and hardship and also monetary loss, as such complainant has claimed seeking direction of this forum to direct the opposite party to deliver the  constructed flat as per the agreement and also claiming interest at the rate of 18% p.a. for a sum of Rs.10,28,359.73  for the amount paid by the complainant to the opposite party and compensation for the delay in handing over possession of the constructed flat, also claims a sum of Rs.2,63,500/- towards the rental loss suffered by the complainant for his residential occupation and also a sum of Rs.5,00,000/- towards compensation against the opposite party.  

5.     On perusal of the Ex.A1 the construction agreement as per the clause-6 of the  terms and conditions  it is mentioned that the developer shall complete the construction of the said building within 15 months subject to the conditions.   In the event of unavoidable delay in completion of the construction of the building due to any cause beyond the developer or its agents and / or by reason of war, civil commotion, Riots, Epidemics, Acts of God or if the delay is due to any Order, Rule or Notification of any Court of law or any Government Agency and / or any other Public or Competent Authority or Statutory Authorities or in the event of any Competent Authority decides to revoke any permission, approvals, sanctions, NOC and / or due to non-availability of any of the amenities, facilities, services, pertaining to the common areas.

6.     Therefore as stated by the complainant, the opposite party have not completed the construction of the said Villa and handed over the same to the complainant as mentioned in the agreement within 15 months from the date of agreement i.e in the month of October 2013, without any valid reason for the delay as mentioned in the said terms and conditions.  Further it is also proved by the complainant as per the document Ex.A4 and Ex.A5 that the complainant has paid a sum of Rs.39,85,250/- as on 16.03.2013. Whereas the complainant has stated that the opposite party used to withdraw the amount from the LIC as per the house loan agreement.  Therefore as stated by the complainant, and as mentioned in the legal notice Ex.A8, the opposite party have received a sum of Rs.40,41,250/-  against the total agreed amount of Rs.41,95,000/- .  The same was not disputed by the opposite party.  Therefore as contended by the complainant, the opposite party having received nearly a total amount of construction cost have not completed the construction of villa and handed over the same till the date which amounts to deficiency of service on the part of opposite party is acceptable.   Further as per the clause 5 of the terms of the condition of the Ex.A1 construction agreement if the developer (opposite party) is unable to give the house to the purchaser (complainant) by the offer said due date, then the developer shall be liable to pay interest at the rate of 18% per annum to till the date of delivery of the house.  Therefore as contended by the complainant the opposite party is also liable to pay interest for the above said amount paid  by the complainant to the opposite party at the rate of 18% p.a. from October 2013 to till the date of handing over the possession of the constructed villa is also acceptable. 

7.     However complainant has further claimed in the complaint,  compensation for rental loss as well as mental sufferings and hardship which are not sustainable since no such terms and conditions for the payment of rental loss in the Ex.A1 construction agreement is mentioned and the complainant is entitled for the interest for the amount paid from October 2013 to till the delivery of the possession towards the delay in handing over the constructed Villa.  Therefore we are not inclined to grant such compensation sought for in the complaint by the complainant.  

8.     Further there is no contra evidence on the side of the opposite party since the opposite party has remained  exparte. 

9.     Therefore we are of the considered view that, the complainant has proved the allegations made against the opposite party that the opposite party having received the cost of the constructions, have not delivered the constructed Villa, as agreed in the constructions agreement, as such, opposite party has committed deficiency of service which caused mental agony, monetary loss   and hardship  to the complainant.  Therefore we are of the considered view that the opposite party is  directed to deliver the constructed villa as per the specification mentioned in the agreement on receipt of balance construction cost if any and also to pay interest at the rate of 18% per annum for the amount received from the complainant  i.e for Rs.40,41,250/- from October 2013 to till the date of handing over the possession / delivery of the villa  as compensation for the delay in handing over the possession of the villa and also to pay a sum of Rs.2500/- as litigation charges to the complainant.  

        In the result, the complaint is partly allowed.  The opposite party is directed to deliver the constructed Villa as per the specification mentioned in the construction agreement on receipt of balance construction cost if any and also to pay interest amount at the rate of 18% per annum for Rs.40,41,250/- from October 2013 to till the date of handing over the possession / delivery of the Villa and also to pay a sum of Rs.2500/- (Rupees Two thousand and five hundred only) as cost, within two months from the date of this order.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  6^th    day  of  July   2016.

 

MEMBER-I                                        MEMBER-II                                           PRESIDENT.

Complainant’s Side documents :

Ex.A1-  6.7.2012       - Copy of Agreement of Land Development cum construction.

Ex.A2-  6.7.2012       - Copy of Sale agreement.

Ex.A3-  26.11.2012    - Copy of Sale deed

Ex.A4-  14.3.2013     - Copy of demand letter sent by the opposite party to the

                               Complainant.

         

Ex.A5- 16.3.2014      - Copy of receipt issued by the opposite party.

 

Ex.A6-                    -        - Copy of email communication between the complainant and the

                               Opposite party.

 

Ex.A7- 1.9.2014        - Copy of returned cover.

 

Ex.A8- 22.8.2014      - Copy of legal notice issued by the complainant to the opposite party

                               With ack. Card.

 

Ex.A9- 5.6.2015        - Copy of Rental agreement.

 

 

Opposite party’s side documents: -  

 

 .. Nil ..          (exparte)

 

 

MEMBER-I                                         MEMBER-II                                          PRESIDENT.