Tamil Nadu

StateCommission

CC/314/2015

Mr.Colonel E.N.Prince - Complainant(s)

Versus

M/s.Marg ProperTies Ltd - Opp.Party(s)

M/s.V.M.Venkatramana

23 Nov 2022

ORDER

Date of filing : 17.11.2015

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

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

                     THIRU. R VENKATESAPERUMAL                     :   MEMBER

 

C.C. No.314/2015

DATED THE 23^RD DAY OF NOVEMBER 2022

Mr. Colonel E.N. Prince,

S/o. Late E.J. Nelson,

Qtr. No.11/6, Palm Grove Officers’ Enclave,

Kamarajar Salai,

Near Napier Bridge,

Island Grounds,

Chennai – 600 009.                                                                                    .. 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:-

 “Marg Axis”, No.4/318, Rajiv Gandhi Salai,

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.17,63,677/- 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.5,00,000/- 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 Three bedroom flat with 338 sq. ft. of undivided share and having a super built up area of 1070 sq. ft., plinth area of 851 sq. ft. bearing No.309 in the 2^nd floor in ‘F’ block including proportionate share in the common area.   The complainant also booked a Two bedroom flat with 285 sq. ft. of undivided share and having a super built up area of 902 sq. ft., plinth area of 717 sq. ft. bearing No.3010 in the 2^nd floor in ‘F’ block including proportionate share in the common area.  An agreement for sale and construction agreement was entered into between the complainant and the opposite parties on 04.10.2011.  The opposite party promised to complete the construction work and handover the possession of the flat during October 2013 with a grace period of 4 months.  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 Three Bedroom flat was fixed as Rs.28,22,492/- out of which, Rs.2,02,800/- being the Land Cost and the remaining Rs.26,19,692/- is the construction cost.   The total sale consideration of the Two Bedroom flat was fixed as Rs.20,70,813/- out of which, Rs.1,71,000/- being the Land Cost and the remaining Rs.18,99,813/- is the construction cost.  The complainant paid a sum of Rs.50,000/- by way of cheque bearing No.382718 dt.03.08.2011, a sum of Rs.2,00,000/- by way of Cheque no.382720 dt.12.09.2011 drawn on SBI Bank, Kilpauk Branch, Chennai to the opposite party and the opposite party issued receipt for the same and a further sum of Rs.2,00,000/- by way of 2 Cheques vide nos.382721 & No.382722 dt.12.09.2011 drawn on SBI Bank, Kilpauk Branch, Chennai was paid to opposite party and the receipt for the same was also issued by the opposite party.   Again a sum of Rs.2,00,000/- by way of Cheque no.382723 dt.27.09.2011 drawn on SBI Bank, Kilpauk Branch, Chennai was paid to opposite party and the opposite party issued receipt for the same, further a sum of Rs.88,685/- by way of cheque No.382724 dt.30.08.2011 drawn on SBI Bank, Kilpauk Branch, Chennai and a sum of Rs.8,24,992/- by way of cheque No.381295 dt. 20.01.2014 drawn on SBI Bank, Kilpauk Branch, Chennai paid to the opposite party. Thus, the complainant had paid a total sum of Rs.17,63,677/- towards the purchase of two flats.  But the construction of ‘F’ Block 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. October 2013.  On 14.05.2015, the opposite party sent an email to the complainant to pay the outstanding amount for the construction of the flat.  For that, the complainant sent a detailed reply to the opposite party.  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.   There appears to be confusion in allocating the flats from Block ‘D’ to ‘C’.  Hence, the complainant decided not to proceed with the project and sought for cancellation of the Agreement because the complainant suffered financial loss in the form of interest for the money borrowed from the bank.  When the complainant approached the opposite party for cancellation of the agreement, he turned deaf ears.  The act of the opposite party 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.17,63,677/- 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 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 19 documents were marked as Ex.A1 to A19.   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 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 through his friend Srinivasmurthy, who had booked a Three bedroom flat with 338 sq. ft. of undivided share and having super built up area of 1070 sq. ft. plinth area of 851 sq. ft. bearing No.309 in the 2^nd floor in ‘F’ block including proportionate share in the common area.   Ex.A1 & Ex.A2 are the Agreement of Sale and the Construction Agreement.  The complainant also booked a Two bedroom flat with 285 sq. ft. of undivided share and having super built up area of 902 sq. ft. plinth area of 717 sq. ft. bearing No.3010 in the 2^nd floor in ‘F’ block including proportionate share in the common area.  Ex.A3 & Ex.A4 are the Agreement of Sale and the Construction Agreement.  An agreement for sale and a construction agreement was entered into between the complainant and the opposite parties on 04.10.2011.  The opposite party promised to complete the construction work and handover the possession of the flat during October 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 Three Bedroom flat was fixed as Rs.28,22,492/- out of which, Rs.2,02,800/- being the Land Cost and the remaining Rs.26,19,692/- is the construction cost.  The total sale consideration of the Two Bedroom flat was fixed as Rs.20,70,813/- out of which, Rs.1,71,000/- being the Land Cost and the remaining Rs.18,99,813/- is the construction cost. 

 

7.         The complainant paid a sum of Rs.50,000/- by way of cheque bearing No.382718 dt.03.08.2011, a sum of Rs.2,00,000/- by way of Cheque No.382720 dt.12.09.2011 drawn on SBI Bank, Kilpauk Branch, Chennai to the opposite party and he issued receipt for the same and a sum of Rs.2,00,000/- by way of 2 Cheques vide nos.382721 & No.382722 dt.12.09.2011 drawn on SBI Bank, Kilpauk Branch, Chennai was paid to opposite party and the opposite party issued receipt for the same.  Again a sum of Rs.2,00,000/- by way of Cheque no.382723 dt.27.09.2011 drawn on SBI Bank, Kilpauk Branch, Chennai to the opposite party and he issued receipt for the same, a sum of Rs.88,685/- by way of cheque No.382724 dt.30.08.2011 drawn on SBI Bank, Kilpauk Branch, Chennai and a sum of Rs.8,24,992/- by way of cheque No.381295 dt. 20.01.2014 drawn on SBI Bank, Kilpauk Branch, Chennai to the opposite party.  Ex.A6 & Ex.A7 are the Bank Statements for the payment made by the complainant.  Thus, the complainant had paid a total sum of Rs.17,63,677/- towards the purchase of two flats.  Ex.A5 (Series) is the receipts issued by the opposite party.  But the construction of ‘F’ Block had not been proceeded in the scheduled manner.  Moreover, the opposite party was not able to complete the construction within the agreed schedule of time i.e. October 2013.  On 14.05.2015, the opposite party sent an email to the complainant as per Ex.A10 to pay the outstanding amount for the construction of the flat.  For that, the complainant sent a detailed reply to the opposite party.  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.   There appears to be confusion in allocating the flats from Block ‘D’ to ‘C’.  Hence, the complainant decided not to proceed with the project and sought for cancellation of the Agreement because the complainant suffered financial loss in the form of interest for the money borrowed from the bank.  When the complainant approached the opposite party for cancellation of the agreement, he turned deaf ears.  The act of the opposite party caused great mental agony.  Hence on 06.10.2015, the complainant issued Ex.A14, legal notice to the opposite party to pay a sum of Rs.17,63,677/- along with interest.  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 statement made by way of defence by the opposite parties without any proof for the same.   As per Ex.A1 to ExA4, Agreements entered between the parties, the opposite party promised to handover the flat to the complainant by October 2013 including grace period of 4 months.  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.A5 to Ex.A7, receipts issued by the opposite party and the Bank statement, that the opposite party has received a sum of Rs.17,63,677/- from the complainant for the two flats.  Thus complainant is entitled for refund of the sum of Rs.17,63,677/- with interest at the rate of 9% p.a. from the date of complaint till realization.  Further, they are also entitled for a compensation of Rs.2,00,000/- for the mental agony and hardship suffered by him.  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.17,63,677/- (Rupees Seventeen lakhs sixty three thousand six hundred and seventy seven only) along with interest at the rate of 9% p.a. from the date of complaint (i.e.) 17.11.2015 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	04.10.2011	Copy of Agreement of sale for the 3 BHK flat
Ex.A2	04.10.2011	Copy of Construction Agreement for the 3 BHK flat
Ex.A3	04.10.2011	Copy of Agreement of sale for the 2 BHK flat
Ex.A4	04.10.2011	Copy of Construction Agreement for the 2 BHK flat
Ex.A5 (Series)	12.09.2011 to 20.01.2014	Copy of receipts (5 Nos.)
Ex.A6	25.03.2010 to 14.01.2012	Copy of Bank Statement for the payment made by the complainant
Ex.A7	27.11.2013 to 29.11.2014	Copy of Bank Statement for the payment made by the complainant
Ex.A8	04.07.2013	Copy of payment request letter for flat No.309 (3 BHK) and flat No.3010 (2 BHK) (2 Nos.)
Ex.A9	20.12.2013	Copy of payment request letter for flat No.309 (3 BHK) and flat No.3010 (2 BHK) (2 Nos.)
Ex.A10	14.05.2015	Copy of e-mail communication from the opposite party to complainant to pay the balance outstanding amount
Ex.A11	02.09.2015	Copy of letter of the complainant to the opposite party
Ex.A12	11.09.2015	Copy of email sent by the opposite party to complainant to make payment for Rs.6,05,075/-
Ex.A13	11.09.2015	Copy of reply issued by the complainant to complete the registration as 40% of the total payment is made
Ex.A14	06.10.2015	Copy of legal notice of the complainant to the opposite party with postal receipt and its acknowledgement cards
Ex.A15	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.A16	10.04.2015	Copy of stop construction notice issued by the Tamil Nadu Pollution Control Board, Sriperumbudur @ Padappai
Ex.A17	24.10.2016	Copy of letter addressed to the Chairman of the opposite party by the Marg Brindavan Owners’ Welfare Association, Chennai
Ex.A18	24.10.2016	Copy of minutes of Marg Brindavan Project Meeting
Ex.A19	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