Tamil Nadu

StateCommission

CC/5/2016

Mrs.P.Megha, W/o.Mr.P.Srinivas Murthy - Complainant(s)

Versus

M/s.Marg Properties Ltd, (Formerly Known as Marg Properties Pvt Ltd) Rep by its Authorised Signatory - Opp.Party(s)

M/s.V.M.Venkataramana

23 Nov 2022

ORDER

Date of filing : 31.12.2015

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:       Hon’ble THIRU. JUSTICE R. SUBBIAH              :    PRESIDENT

                     THIRU. R VENKATESAPERUMAL                     :   MEMBER

 

C.C. No.05/2016

DATED THE 23^RD DAY OF NOVEMBER 2022

Mrs. P. Megha,

W/o. Mr. P. Srinivas Murthy,

No.1/2, 1^st Street, Venkatesha Nagar,

Virugambakkam,

Chennai.                                                                                            .. Complainant.

                                                       - Versus -

 M/s. Marg Properties Limited,

(Formerly known as Marg Properties Private Limited),

Represented by its Authorised Signatory,

Mr. S. Srinivasan,

Having its office at:-

 No.4/318, Rajiv Gandhi Salai,

(Old Mahabalipuram Road),

Kottivakkam,

Chennai – 600 041.                                                                           .. Opposite party.

 

Counsel for the Complainant                 : M/s. V.M. Venkatraman

 

Counsel for the Opposite party             : M/s. B.R. Shankaralingam

 

 

This complaint having come up for final hearing before us on 23.11.2022  and on hearing the arguments both parties and upon perusing the material records submitted by both parties and this Commission made the following in the open Court:-

ORDER

Thiru. R VENKATESAPERUMAL, MEMBER

 

The present complaint was filed by the complainant against the opposite parties for the following reliefs:

1. To pay a sum of Rs.6,65,265/- with interest at the rate of 24% p. a. from the date of payment made by the complainant till the date of this complaint and future interest 18% per annum till the date of realization;
2. To pay a sum of Rs.15,00,000/- towards damages for the mental agony suffered to the complainant.

3.  To pay the cost of the complaint.

 

2.         The case of the complainant, in brief, is as follows:-

            The Complainant states that he came to know about opposite party's project of constructing Multistoried Residential Apartment with amenities under the name and style of "Brindavan" consisting of 11 residential blocks at Pondur 'B' Village, Sriperumbudur Taluk, Kanchipuram District.   He had booked a flat with 188 sq. ft. of undivided share and Two bedroom Kitchen having super built up area of 609 sq. ft., plinth area of 484. sq. ft. bearing No 806 in the 7^th floor in block ‘D’ including proportionate share in the common area.  The ‘D’ Block falls under the 1^st phase of the Residential Apartment consisting of  6 blocks which is known as Brindavan Phase - I.  An agreement for sale and construction agreement were entered into between the complainant and the opposite parties on 18.04.2012.  The opposite party promised to complete the construction work and handover the possession of the flat during December 2013.  It was also mentioned in the Construction Agreement, that in the event of delay in construction and delivery of the apartment, the opposite party is liable to pay a compensation of Rs.5/- per sq. ft. per month for the delay in delivery of the apartment to the complainant until the delivery of possession. The total sale consideration of the apartment was fixed as Rs.16,53,556/- out of which, Rs.44,180/- being the land cost and the remaining Rs.16,09,276/- is the construction cost.  The complainant paid a sum of Rs.3,33,259/- by way of cheque bearing No.770274 dt.24.08.2011 and Cheque No.770275 dt.01.10.2011 drawn on HDFC Bank, Ashok Nagar Branch to the opposite party and the opposite party issued receipt for the same.  On 04.03.2013, the complainant transferred an amount of Rs.1,69,831/- by NEFT transfer through Axis Bank, Thiruvanmiyur Branch & on 08.09.2014, another sum of Rs.1,00,000/- was transferred by NEFT through Axis Bank, Chennai Branch and on 10.09.2014, an amount of Rs.62,175/- by NEFT was transferred through Axis Bank, Chennai Branch to the opposite party and the opposite party had duly issued the receipts for the same.   Thus, the complainant had paid a total sum of Rs.6,65,265/-.  But the ‘D’ Block construction did not proceed in the scheduled manner.  Moreover, the opposite party was not able to complete the construction within the agreed schedule of time i.e. December 2013.  The complainant sent an email on 13.10.2014 and repeated emails to the opposite party that she wanted to cancel the booking of flat due to the delay in completing the said project.   Though the opposite party had sent a reply to the complainant they have not come forward to refund the amount.  On 04.04.2015, the opposite party expressed its inability to complete ‘D’ Block and requested the complainant to shift the booking to ‘C’ Block.  Hence, the complainant shifted his booking to flat No.1208 in the 11^th Floor in Block ‘C’.   But, again there is no progress in the construction of the flat.  The act of the opposite party in not completing the construction of the flat caused great mental agony to the complainant.  Hence on 06.10.2015, the complainant issued a legal notice to the opposite party to pay a sum of Rs.6,65,265/- along with interest.   Though the notice was received by the opposite party, he has not chosen to send a reply to the complainant.  Hence, the present complaint has been filed.

 

3.         Resisting the said complaint, the opposite party has filed a version stating that the complainant has booked a flat with the opposite party.  Due to change in the Government policies, delay in issuing statutory approvals by various government authorities including environmental clearance, unforeseen market conditions, global recession/ slow down in the economy caused drastic reduction in booking of the flats which consequently got impact on the development of the project.    Further, there were shortage of labour, non-availability of raw materials Used for the construction activities, exorbitant increase in raw materials prices, apart from global recession and inordinate delay by the other prospective Flat buyers like the Complainant for payment of the amount committed by them under the Schedule of Payment agreed which were totally beyond the control of the Opposite Party and further the FORCE MAJEURE Clause in the sale agreement which reads as follows:

 

"The Developer/Vendor shall not be liable if they are unable to complete and deliver possess on of Schedule "C" property to the Purchaser by the reason of "Act of God" or delay or denial in obtaining permission/approvals from Government agencies/authorities or Civil commotion, riots or for reasons beyond the control of the Regulations, Notification of the Government, Municipal Authority, any Court and / or for reasons beyond the control of the Developer/Vendors".  Admittedly, the Complainant herein sought for cancellation of the agreement and refund of the amount as such it will only go to prove that there is no consumer jural relationship between the parties and as such the present proceedings before this Commission for alleged deficiency in service is not at all maintainable in the eye of  law.  Therefore, there is no deficiency in service on the part of the opposite party and hence, this complaint is liable to be dismissed.

 

4.         In order to prove the case, the complainant has filed proof affidavit and 17 documents were marked as Ex.A1 to A17.   On the side of the opposite party proof affidavit is filed but no documents were marked.

 

5.         The points for consideration before this Commission is:-

1. Whether there is any deficiency in service on the part of the opposite party as prayed for?
2. Whether the complainant is entitled for the relief as prayed for?

6.         Point No.1:-

Both parties filed their respective written arguments.  Heard the submissions of the counsel for both parties and carefully perused the materials available on record.   The contention of the complainant is that he booked a flat in "Brindavan Phase - 1" with 188 sq. ft. of undivided share and Two bedroom Kitchen having super built up area of 609 sq. ft., plinth area of 484. sq. ft. beating No 806 in the 7^th floor in block ‘D’ including proportionate share in the common area.  An agreement for sale and a construction agreement was entered into between the complainant and the opposite parties on 11.06.2012.  Ex.A1 & Ex.A2 are the Agreement of Sale and Construction Agreement.  The opposite party promised to complete the construction work and handover the possession of the flat during December 2013.  It was also mentioned in the Construction Agreement, that the opposite party is liable to pay a compensation of Rs.5/- per sq. ft. per month in the event of any delay in delivery of the apartment to the complainant until the delivery of possession.   The total sale consideration of the apartment was fixed as Rs 16,53,556/- out of which, Rs.44,180/- being the Land Cost and the remaining Rs.16,09,276/- is the construction cost. 

7.         The complainant paid a sum of Rs.3,33,259/- by way of cheque bearing No.770274 dt.24.08.2011 and Cheque No.770275 dt.01.10.2011 drawn on HDFC Bank, Ashok Nagar Branch and the opposite party had issued receipts for the same marked as Ex.A3.  On 04.03.2013, the complainant transferred an amount of Rs.1,69,831/- by NEFT transfer through Axis Bank, Thiruvanmiyur Branch & on 08.09.2014, another sum of Rs.1,00,000/- was transferred by NEFT through Axis Bank, Chennai Branch and on 10.09.2014 an amount of Rs.62,175/- by NEFT was transferred through Axis Bank, Chennai Branch to the opposite party and the opposite party has duly issued the receipts for the same.  Ex.A4 to Ex.A7 are the Bank Statements showing the payments made by the complainant to opposite party.   Thus, the complainant had paid a total sum of Rs.6,65,265/-.   But the construction work had not been proceeded as per the scheduled manner.  Moreover, the opposite party was not able to complete the construction within the agreed schedule of time i.e. December 2013.  The complainant sent an Ex.A8, email on 13.10.2014 and repeated emails to the opposite party that she wanted to cancel the booking of flat due to the delay in completing the said project.  But the opposite party replied the complainant but not refunded the amount.  On 04.04.2015, the opposite party expressed its inability to complete ‘D’ Block and requested to shift the booking to ‘C’ Block to the complainant.  Thus, the complainant shifted his booking of flat to flat No.1208 in the 11^th Floor in Block ‘C’.   But again, there is no progress of construction in the new flat.   The act of the opposite party in not completing the construction of the flat caused great mental agony.  Hence on 06.10.2015, the complainant issued Ex.A12, legal notice to the opposite party to pay a sum of Rs.6,65,265/-.  Even after the receipt of notice, the opposite party has not chosen to reply to the complainant. 

8.         The opposite parties for the delay in construction and handing over of the schedule of properties had cited the reason of ‘force majeur, i.e. due to global recession, labour problem, shortage of basic materials etc., which are beyond their control.  But they have not produced any materials in support of their contentions.  Hence, it is mere bald statements made by way of defence by the opposite parties without any proof for the same.   As per Ex.A1 & Ex.A2, Agreement entered between the parties, the opposite party promised to handover the flat to the complainant within 36 months from the date of Agreement.  As per Ex.A3, the opposite parties had given receipt for the total amount paid by the complainant.    Hence, they are legally obliged to construct and handover the apartment to the complainant as per the schedule found in the agreement.  Therefore failing to comply the terms as clearly found in the agreement after receipt of amount by citing irrelevant reasons clearly amounts to deficiency in service.  Thus, we hold that the opposite party had committed clear deficiency in service and unfair trade practice and we answer point No.1 in favour of the complainant.

9.         Point No.2:-

As we have come to the conclusion that the opposite party has committed deficiency in service and unfair trade practice the complainant should be compensated in terms of money.  It is evident as per the Ex.A3 to Ex.A7, receipts issued by the opposite party and the Bank statement, that the opposite party has received issued by the opposite party that they have received Rs.6,65,265/- from the complainant.  Thus complainant is entitled for refund of the sum of Rs.6,65,265/- with interest at the rate of 9% p.a. from the date of complaint till realization.  Further, the complainant is also entitled for a compensation of Rs.2,00,000/- for the mental agony and hardship suffered by her.  Cost of Rs.25,000/- is awarded to the complainant.  Thus, we answer point No.2 in favour of the complainant.

In the result, this complaint is partly allowed as follows :-

1. The opposite party shall refund the sum of Rs.6,65,265/- (Rupees Six lakhs sixty five thousand two hundred and sixty five only) along with interest at the rate of 9% p.a. from the date of complaint (i.e.) 31.12.2015 till realization to the complainant;
2. Compensation of Rs.2,00,000/- (Rupees Two lakhs only) for the mental agony & hardship;
3. Cost of Rs.25,000/- (Rupees Twenty five thousand only) towards litigation expenses. 

 

 

Sd/-                                                                Sd/-

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

List of documents filed by the complainant:-   

Ex.A1	18.04.2012	Copy of Agreement for Sale
Ex.A2	18.04.2012	Copy of Construction Agreement
Ex.A3 (Series)	24.08.2011 to 10.09.2011	Copy of receipts (4 Nos.)
Ex.A4	25.08.2011 to 31.08.2014	Copy of Bank Statement showing the payment of Rs.1,00,000/-
Ex.A5	01.11.2011 to 30.11.2011	Copy of Bank Statement showing the payment of Rs.2,33,259/-
Ex.A6	01.03.2013 to 07.03.2013	Copy of Bank Statement showing the payment of Rs.1,68,831/-
Ex.A7	01.09.2014 to 11.09.2014	Copy of Bank Statement showing the payment of Rs.1,00,000/- & Rs.62,175/-
Ex.A8	13.10.2014	Copy of email sent by the complainant to the opposite party regarding cancellation and for refund
Ex.A9	14.10.2014	Copy of reply email sent by the opposite party informing that refund will take six to nine months
Ex.A10	16.10.2014	Copy of email of the complainant to the opposite party to hold the cancellation
Ex.A11	11.05.2015	Copy of letter confirming shifting the booking from ‘D’ -806 to ‘C’ 1208
Ex.A12	06.10.2015	Copy of legal notice of the complainant to the opposite party with postal receipt and its acknowledgement cards
Ex.A13	19.02.2013	Copy of letter issued to the opposite party by the State Level Environment Impact Assessment Authority, Tamilnadu calling the opposite party to submit DTCP Approval, plan etc
Ex.A14	10.04.2015	Copy of stop construction notice issued by the Tamil Nadu Pollution Control Board, Sriperumbudur @ Padappai
Ex.A15	24.10.2016	Copy of letter addressed to the Chairman of the opposite party by the Marg Brindavan Owners’ Welfare Association, Chennai
Ex.A16	24.10.2016	Copy of minutes of Marg Brindavan Project Meeting
Ex.A17	19.10.2016	Copy of award passed by the District Consumer Disputes Redressal Forum, Chengalpattu against the opposite party with respect to the project ‘Brindavan’

 

List of documents filed by the opposite party:-   

Nil

 

 

Sd/-                                                                Sd/-

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT