Tamil Nadu

StateCommission

CC/126/2015

T.Lakshmikanthan - Complainant(s)

Versus

M/s.Marg Properties Ltd, Marg Axis,Rep by Manager - Customer Care - Opp.Party(s)

M/s.R.SathishKumar

30 Jun 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

BEFORE         Hon’ble Thiru. Justice R.SUBBIAH                        PRESIDENT

                       Thiru. R. VENKATESAPERUMAL                          MEMBER

 

C.C. No.126/2015

DATED, THE 30^th DAY OF JUNE 2022

T. Lakshmi Kanthan,

Plot No.31, Door No.14,

Mahabarath Street,

Sri Sakthi Nagar,

Car Shed Complex,

Annanoor,

Chennai.                                                                                               .. Complainant.

                                                       - Versus -

M/s. Marg Properties Limited,

Represented by its Manager-Customer Care,

 “Marg Axis”,

No.4/318, Rajiv Gandhi Salai, (OMR),

Kottivakkam,

Chennai – 600 041.                                                                           .. Opposite parties.

 

Counsel for Complainant              : M/s. R. Sathish Kumar

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

 

This complaint having come up for final hearing before us on 24.06.2022  and on hearing the arguments of the complainant and upon perusing the material records submitted by both parties this Commission made the following order in the open Court:-

ORDER

HON’BLE THIRU.  JUSTICE R. SUBBIAH, PRESIDENT

            Present complaint was filed by the complainant alleging deficiency in service on the part of the opposite party along with a prayer to direct the opposite party to refund a sum of Rs.7,34,422/- being the booking amount and Rs.25,00,000/- towards compensation for mental agony suffered by the complainant with cost.

1.         Brief facts necessitating the filing of complaint:

            The complainant was allured by the news paper advertisements made by the opposite party who is a reputed builder for the announcement of a residential project called “BRINDAVAN”.   Believing the promises made by the opposite party and the area being a upcoming location at Sriperumbudur, the complainant decided to invest his hard earned money in said project.  Thus, the complainant entered into an Agreement for Sale and Construction Agreement with the opposite party on 28.09.2011 for construction of a 3 Bedroom, Hall, Kitchen (3 BHK) residential apartment having a super built up area of 1070 sq. ft. (inclusive of common area), Plinth area of 851 sq. ft. bearing No.501 in the 4^th Floor in E Block in Sriperubudur-Singaperumal Koil State Highway situated at Pondur Village, Sriperumbudur Taluk.  The total sale consideration was fixed at Rs.25,71,647/-.  The opposite party assured that the construction and delivery of possession shall be in June 2013 with a grace period of 4 months i.e. till September 2013.  Based on the agreement, the complainant paid Rs.50,000/- on 29.12.2010, Rs.4,36,844/- on 27.12.2011 and Rs.2,47,578/- on 24.12.2012 totalling to Rs.7,34,422/-.   The opposite party had issued receipts for the same.  However, the opposite party had failed to honour the time bound commitments and even in the month of May 2014 the project was not get started.

2.         The complainant submitted that they had waited for more than one year but the opposite party had delay the starting of construction works.  The delay in starting the construction works after payment of a sum of Rs.7,34,422/- caused great mental agony.   Hence, the complainant had an only option to cancel the booking and seek refund of Rs.7,34,422/- for which, he had paid interest.   The complainant states that he sent emails dated 20.09.2014 & 15.11.2014 for cancellation of booking and claiming refund.  The opposite party gave empty promises and bald hopes in the communication dt.05.05.2015 to the complainant. Hence, the complainant sent a legal notice dt.05.05.2015 to the opposite party claiming refund of the booking amount with interest.   The said notice was duly received by the opposite party but did not send any reply.  Thus, the complaint was filed alleging deficiency in service and unfair trade practice on the part of opposite party and for refund of the amount of Rs.7,34,422/- along with 18% interest and to pay a sum of Rs.25,00,000/- towards compensation for mental agony caused to the  complainant along with cost of the proceedings.

2.         The opposite party in his written version stated that the complainant had approached the opposite party for purchase of the proposed apartment bearing No.501-E and also made initial payments in parts. The opposite party stated that even at the time of booking, it was made clear to the complainant that the plan approval is pending before the competent authority and booking was subject to approval of the project.   The opposite party stated that due to global recession /slow down in the economy caused drastic reduction in booking of the  flats which impacted very badly on the development of its projects.  Further, the opposite party cited the FORCE MAJEURE clause which reads as follows:

            “The Owners/Developer shall not be liable if they are unable to complete the sale of Schedule B property to the Purchaser by the reason of delay in obtaining permission from various Statutory Authorities, or by any Act of God or if the delay is as a result of any Government Regulations, Notification of the Government, Municipal Authority, any Court and / or for reasons beyond the control of the Vendor/Developer”.

3.         Further, it was contented by the opposite party that the complainant sought for cancellation of the Agreement and refund of the amount before this Consumer Commission which was not maintainable because there was no jural relationship of consumer and service provider between the complainant and the opposite parties.  Further, it was submitted by the opposite party that the complainant has to approach the Civil Court and seek appropriate redressal.   The opposite party further stated that as per the terms of the Agreement, there is an Arbitration Clause and such the above proceedings is not at all maintainable under Section 8 of the Arbitration and Conciliation Act.   Further, the opposite party stated that there is a delay in the project due to escalation of the cost of materials, labour etc.  Hence, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

4.         The complainant filed his proof affidavit and submitted documents marked as Ex.A1 to Ex.A11.  The opposite party filed their proof affidavit but no documents were marked on their side.

5.         Points for Consideration:

1. Whether the complaint is maintainable before the Consumer Commission?
2. Whether there is any deficiency in service and unfair trade practice on the part of the opposite party as alleged by the complainant?
3. If so, for what relief the complainant is entitled to?

 

5.         Point No.1 :

Facts made out from the documents submitted by complainant:-

1. The complainant in response to the advertisements made by the opposite party had agreed to book a 3-Bedroom Hall Kitchen (3BHK)  Apartment having a super built up area of 1070 sq. ft. (inclusive of common area), Plinth area of 851 sq. ft. bearing No.501 in the 4^th Floor in E Block in Sriperumbudur- Singaperumal Koil State Highway situated at Pondur Village, Sriperumbudur Taluk for total sale consideration of Rs.7,34,422/-;
2. That the Agreement of Sale dt.28.09.2011 was marked as Ex.A1;
3. That the Construction Agreement dt.28.09.2011 was marked as Ex.A2
4. That the payment receipts were marked as Ex.A3, Ex.A5 & Ex.A8;
5. That the payment request by the opposite party were marked as Ex.A4 & Ex.A7;
6. That the letter from the opposite party to the complainant was marked as Ex.A6;
7. That the payment schedule was marked as Ex.A9;
8. That the correspondences between the complainant and the opposite party was marked as Ex.A10;
9. That the notice from the complainant to the opposite party and copy of the  acknowledgement card was marked as Ex.A11;

That, the complainant had filed this complaint for refund of the amount of Rs.7,34,422/- with interest at the rate of 18% p.a. and a compensation of Rs.25,00,000/- for mental agony with cost of the complaint.

6.         Heard the learned Counsel for complainant.  The opposite party had filed their written version, proof affidavit and written arguments.  In the written version, it is contended by the opposite party that the Consumer Commissions has no jurisdiction to try this case because there is no consumer jural relationship between the complainant and the opposite party and the appropriate forum would be the Civil Court and thus prays for the dismissal of the complaint on the issue of jurisdiction.  We are unable to accept the above contention for the reason that once the agreement dated 28.09.2011 was executed between the parties and signed by the opposite party for the development of the project and the agreement derives the jural relationship of ‘the Developer’ and ‘the Purchaser’ comes into existence between the parties and the agreed payment amount to be considered as ‘consideration’.  Hence, the issue with regard to the non-maintainability of the complaint before the Consumer Commission does not arise. The presence of arbitration clause in the development agreement is not a bar to file a complaint before Consumer Commissions as held by various precedents of the Apex Court.  Thus, we answer the point No.1 in favour of the complainant holding that the complaint is maintainable before this Consumer Commission.

7.         Point No.2 :-

From the admitted facts as mentioned above, we could see that the opposite party had issued alluring advertisement inviting public to purchase the apartments, the residential project called “BRINDAVAN”  to be constructed  by the opposite party who is the builder and the complainant after visiting the opposite party and on seeing the model flat of the project had agreed to book a 3 Bedroom Hall Kitchen (3BHK) residential apartment having a super built up area of 1070 sq. ft.  (inclusive of common area), Plinth area of 851 sq. ft. bearing No.501 in the 4^th Floor in E Block in Sriperumbudur for the total sale consideration of Rs.7,34,422/-.  The opposite party assured the complainant that the project would be completed in June 2013 with a grace period of 4 months i.e. till September 2013.  The complainant in pursuance of the agreement has paid the amount of Rs.7,34,422/-.  

8.         The opposite party 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 records in support of their contentions.  Hence, it was mere bald statements made by way of defence by the opposite party without any proof for the same.   As per Ex.A2, Agreement entered between the parties, the opposite party had promised to hand over the flat to the complainant during June 2013.  As per Ex.A3, Ex.A5 & Ex.A8, receipts, the complainant had paid the amount of Rs.7,34,422/- to the opposite party.   Hence, the opposite party is legally obliged to construct and handover the apartment to the complainant as per the agreed schedule found in the agreement.  Therefore, the opposite party had failed to comply with the terms as clearly found in the agreement even 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.2 in favour of the complainant and as against the opposite party.

9.         Point No.3:-

As we have come to the conclusion that the opposite party has committed deficiency in service and unfair trade practice and the complainant should be compensated in terms of money.  As per Ex.A3, Ex.A5 & Ex.A8, receipts, it is evident that the opposite party had received Rs.7,34,422/- from the complainant.  Thus, the complainant is entitled for refund of the amount of Rs.7,34,422/- with interest at the rate of 18% p.a. from the date of complaint till realization.  Further, he is also entitled for a compensation of Rs.2,00,000/- for the mental agony and hardship suffered by him.  Cost of Rs.10,000/- is awarded to the complainant.  Thus, we answer point No.3 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.7,34,422/- (Rupees Seven lakhs thirty four thousand four hundred twenty two only) with 18% interest from the date of complaint till realization;
2. To pay a compensation of Rs.2,00,000/- (Rupees Two lakhs only) for the mental agony & hardship suffered by the complainant;
3. To pay the cost of Rs.10,000/- (Rupees Ten thousand only) towards litigation expenses. 

 

 

R.VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

List of documents filed by the complainant:-   

Ex.A1	28.09.2011	Copy of Agreement of Sale
Ex.A2	28.09.2011	Copy of Construction Agreement
Ex.A3	29.12.2010	Copy of payment made by the complainant to the opposite party
Ex.A4	10.01.2011	Copy of payment request by the opposite party
Ex.A5	27.01.2011	Copy of payment made by the complainant to the opposite party
Ex.A6	28.10.2011	Copy of letter from the opposite party to complainant
Ex.A7	29.11.2012	Copy of payment request by the opposite party
Ex.A8	24.12.2012	Copy of payment made by the complainant to the opposite party
Ex.A9		Copy of payment schedule
Ex.A10	2012-2015	Copy of correspondence between the complainant and the opposite party
Ex.A11	05.05.2015	Copy of notice from the complainant to the opposite party and the receipt of the notice

 

List of documents filed by the opposite party:-   

Nil

 

 

 

R.VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT