Date of filing : 12.02.2016
Date of transfer : 27.06.2022
Date of order : 24.02.2023
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER-II
FRIDAY THE 24TH DAY OF FEBRAUARY 2023
CONSUMER COMPLAINT NO. 65/2022
Mrs. R. Shuchi Jain,
Director M/s. Capricorn Food Products India Ltd.,
New No. AH – 11, Old No. AH – 216
2nd Street, Shanthi Colony,
Anna Nagar,
Chennai – 600 040 ….Complainant
Vs
M/s. Ozone Projects Pvt. Ltd.,
Rep. by its Managing Director,
No. 44, Pillaiyar Koil Street,
Anna Nagar,
Chennai – 600 040. …Opposite party
Counsel for Complainant : Thiru. T. Kabilan
Counsel for opposite party : Thiru. P.V. Balasubramanian
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L.PRESIDENT
This complaint has been filed Under section 12 of the Consumer Protection Act 1986. The complainant are directed the opposite party to pay a sum of Rs.12,37,200/- towards delay in handing over possession of the Residential units S1102 (From October 2012 to January 2016) and the amount to further increase till the possession of Residential unit is delivered to the complainant and also to pay a sum of Rs.7,00,000/- towards mental agony and emotional sufferings caused to the complainant and also to pay costs of this complaint.
1.The case of the complaint is briefly as follow:
The complainant entered into a construction agreement and agreement for sale with Ozone projects private limited (herein referred to as “opposite party”) for purchase of Residential unit S1102 in the project named Metro zone (“Project”). And on basis of the above agreement for sale, on 5th February, 2015, the sale deed was executed in favor of Mrs. Shuchi R Jain, W/o Mr. Rahoul Jain. The complainant has accordance with the mutually agreed construction agreement between the complainant and opposite party, as contemplated in clause 7” completion and delivery of possession” sub clause (b), it is stated that: “ the developer shall handover possession of the Residential unit to the Allottees after the same is ready for occupation and subject to payment of all the amounts due under this agreement. In the event of delay in handing over possession of the residential unit beyond the time period specified above, not attributable to any of the reasons stated above, developer shall pay to the allotees Rs.15/- (Rupees Fifteen Only) per sq. ft per month till such time possession of the residential unit is handed over or intimated to the allottees whichever is earlier, subject to the Allottees having paid all the instalments as per the payment schedule”. The complainant delivery of the residential unit S1102 was due on September 2012 ( “ which also includes the grace period of three months as contemplated in construction agreement), but opposite party had failed to even complete the construction of the Residential unit till date and by which they are bound by clause 7 (b) of the construction agreement and they are required to pay to the complainant the delay compensation. The complainant has been requesting the delivery of possession of Residential unit S1102 for over three years and till date there has been no proper response as to the actual date of delivery of the residential unit. The complainant has sent a letter dated 7th February, 2014, requesting the opposite party to provide a confirmation/ undertaking regarding the payment of compensation amount due as per the construction agreement, which the opposite party agreed to pay via email dated 3rd January, 2014 but has neglected ever since to revert affirmatively on date of delivery of the Residential unit and delay compensation payment. The complainant had intimated several times pertaining to the clause 7(b) of the construction agreement via E-mails, letters and telecommunications to the opposite party and yet opposite party has failed to confirm on the compensation amount till date, and only on E-mail dated 29th December,2014, opposite party had accepted to all out contentions and agreed to pay compensation for the delay in delivery of residential unit S1102, as per the terms of the construction agreement. But due to this inordinate delay, the complainant had to suffer and undergo unwarranted mental agony and emotional suffering as opposite party has failed to meet the deadline. The complainant had even though all the payments pertaining to above said construction Agreement has been paid by the complainant in full, and which is evidence by the “No Due Certificate” issued by the opposite party to the complainant on 24th august, 2015, the opposite party has failed to deliver the possession of the residential unit S1102 till date. The complainant had on 19th December, 2015; the complainant sent an Email requesting the opposite party to immediately pay a sum of Rs. 12,06,270/- for period from October 2012 to December 2015, as they are required to pay under clause 7 (b) of the construction agreement. But again, the opposite party failed to comply with their promise and the complainant is patiently waiting till date for the opposite party to deliver the possession of the residential unit S1102 and pay the compensation for delay in deliver of the same. On 24th December, 2015 a letter was sent from opposite party to the complainant as a reply to letter dated 16th December, 2015, making derogatory statements contemplating that the complainant would have to forfeit the delay compensation from opposite party, as though there was a delay in remitting milestone payments from the complainant towards opposite part. Hence, the complainant would like to reiterate and confirm that we have made all the payment due to the opposite party on timely manner as per the project requirements and demands made by the opposite party, and it is a blatant lie and tactic used by the opposite party to evace their delay compensation which they are due to the complainant. On 2nd January, 2016m, the complainant sent a final Email to the opposite party requesting them to abide by the Clause 7(b) of the Construction Agreement and pay delay compensation to the complainant on or before 15th January, 2016, which again the opposite party failed to abide by. After investing immeasurable time and energy via Telecommunication, Emails and Letters placing requisitions to opposite party to abide by the Clause 7(b) of Construction Agreement and requesting to make the delivery of possession of Residential Unit S1102, the response of the opposite party was highly uncooperative and has cause I tremendous mental agony and emotional sufferings to the complainant. Finally, the complainant had no other option but to send a legal notice dated 11th January, 2016 to the opposite party and consequently thereon as there was once again no response from the opposite party. when the opposite party failed to deliver the Residential unit S1102 and by which they are bound by Clause 7 (b) of construction Agreement. which is well within the territorial limits of this Hon’ble District Commission. Hence this complaint.
2. The written version of opposite party is briefly as follows:
This opposite party denies all the allegations and averments made by the complainant at the very outset and are shocked and agonized in the manner in which the complainant has fabricated and weavers story to cause hardship and injury to opposite party. It strongly objects to such baseless allegations levied and the claims made dismissing them as nothing but a figment of imagination of the complainant. The complainant has booked a three bed room flat bearing unit N.S 1102 on the 11 the floor of S-Block prestigious project “The Metrozone “ situated at No.44, Pillayar Koil Street, Anna nagar,Chenna-40. Further, they have entered into a construction agreement as well as agreement of sale on 25.09.2009. Subsequently a Sale Deed was also executed in favour of the complainant for the said flat on 05.02.2015. The construction in favour of the complainant for the said flat on 05.02.2015. The construction of the said flat has been progressing as per the terms and conditions in the said agreement but there were some unforeseeable hindrances such as shortages of labourers, shortage of skilled labourers for finishing work, labour instruction imposed by the State Government on other State labourers working in Chennai, restrictions imposed by State on Sand supply, short supply of construction materials mainly sand , delay in renewal and approval process, etc., which in turn caused delay in completing the construction and handing over the flat the flat within the time frame specified in the agreement. The above reasons are purely beyond the control of the opposite party and hence the delay is neither willful nor wanton. In spite of so many challenges, the opposite party had completed the construction of the residential unit of the complainant strictly as per the approved Plan issued by CMDA. It is pertinent to state that the opposite party had not obtained completion certificate from the CMDA on 28.01.2016 and the unit is ready possession. Further, the said agreement has clearly set out various stages of construction and also schedule of payments to be made, which are linked to the various stages of construction. It is payment to state that despite being well aware that payments have to be made on the milestones being achieved, the complainant has defaulted in payments and several installments have been paid by the complainant only with delay, that too only after repeated requests from the complainant. The opposite party had obtained completion certificate from the CMDA on 28.01.2016 and the unit is ready for possession. As far as the averments pertaining to the payment of delay compensation is concerned, the opposite party states that compensation if any payable shall be settled only at the time of handing over possession which is in par with terms and conditions of the agreement. The opposite party has made its stand clear regarding the payment of delay compensation in several mail correspondences between the opposite party and the Commission may be pleased complainant. The opposite party has merely stated that ‘if there is any delay compensation payable to the customer as per the terms of the construction agreement, the opposite party shall certainly honor the same at the time of handover of the Unit’. ‘No Due certificate’ does not by itself set right the delayed payments made by the complainant and only sets out that the complainant is not liable to pay further monies. In the above circumstances the opposite party humbly prays that this Hon’ble. Commission may be pleased to dismiss the complaint and impose exemplary costs.
3. Proof affidavit of complainant filed. Ex. A1 to Ex. A15 marked. Proof affidavit of opposite party filed. Ex.B1 to Ex.B4 were marked. Written argument of both sides filed. Oral arguments of both parties heard.
4. The Points that arises for consideration are:
1. whether there is any deficiency in service on the part of the opposite party ?
2. whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief, the complainant is entitled to?
5. POINT NOS. 1 & 2: The complainant entered into a construction agreement and agreement for sale on 25.09.2009 with the opposite party and subsequently the sale deed was also executed by the opposite party in favour of the complainant on 05.02.2015. As per the agreements-1. Total Sale consideration of aforesaid Flat was Rs.10,847,532/-. As per the Annexure 1A, his Flat No. S1102. The opposite party should deliver the possession as per Annexure-III in June 2012. The allegation of the complainant is that the opposite party fail to complete the construction of the flat till the date of filing this complaint. Therefore they are bound to pay a sum of Rs.15/- per month per Sq.ft. as per of the Clause 7(b) of the possession till the handing over of the possession. The complainant had written several letters to opposite party at last. Therefore, the complainant issued a legal notice on 11.01.2016 calling upon the opposite party to pay compensation for delay in handing over of possession and also to pay compensation for suffering mental agony. As there was no response, Hence, the complainant filed this complaint.
6. The opposite party in their written version, denying the allegations of the complainant. But admitting that there are delay in delivering the possession of the Flats. But for such delay caused because of some unforeseeable hindrances such as shortages of Labourers, shortage of skilled Labourers for finishing work, Labour restrictions imposed by the State Government on other State Labourers working in Chennai, restrictions imposed by State on Sand supply, short supply of construction materials mainly sand, delay in renewal and approval process, etc., which in turn caused delay in completing the construction and handing over the flat within the time frame specified in the agreement. The opposite party admitted in Para 4th of their written version they also admitted that the Flats were ready for occupation only on 28.01.2016. But they are contending that if there is any delay compensation payable to the customer, as per the terms and conditions of construction agreement. The opposite party did not honor their commitment whenever the Flats were handed over, they have to pay the compensation for delayed handing over of possession.
7. On going through the records one make its clear that there is a delay in handing over of the possession. Therefore, the opposite party liable to pay compensation for the same, in view of clause 7(b) of the construction agreement. But in the written argument filed by the opposite party raised an objection, with regard to the locus standi of complaint for filing the complaint. On this ground that the complainant has already conveyed his Flat No. S1102 with proportionate undivided share of land to one Dr. Rani Ravidiran vide Sale Deed dated 27.08.2015 registered as Document No.3756 of 2015 before the Office of Sub-Registrar, Anna Nagar, and he has taken possession of the said unit from the opposite party. In this regard, he also produced a Judgement rendered by
Our Hon’ble National Consumer Disputes Redressal Commission,
New Delhi
IV (2015) CPJ 516 (NC)
D.C.M Ltd.,
Vs.
R.D. Gaind
Held that,
“after the transfer of interest, the complainant was left with no interest or right in the subject flat and , as such, the relationship of consumer and service provider between the parties came to an end”
Therefore, in view of the aforesaid judgment this complaint is not maintainable. Accordingly this complaint is dismissed. Though, the complaint have a case, but for technical reason this complaint is liable to be dismissed. Hence, these Point Nos. 1 and 2 are answered as against the complainant.
8. POINT NO.3: As we have decided in Point Nos. 1and 2 that the complainant has not proved any deficiency in service on the part of the opposite parties. Hence, the complainant is not entitled for any relief. Hence, this Point No.3 is also answered accordingly. Hence, this Point No.3 is also answered accordingly.
In the result, this complaint is dismissed. No costs.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 24th February, 2023.
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MEMBER – I MEMBER – II PRESIDENT
LIST OF COMPLAINANT SIDE DOCUMENTS:
Ex.A1. 25. 09. 2009 – Construction agreement
Ex.A2. 25.09.2009 – Agreement for sale
Ex. A3. 03.01.2014 – Email from opposite party to complainant
Ex. A4 07.02.2014 – Letter from Mr. Shuchi Jain to opposite party
Ex. A5. 07.12.2014 – Email from complainant to opposite party
Ex. A6. 29.12.2014 – Email from opposite party to complainant
Ex. A7. 05.02.2015 – Sale deed
Ex. A8. 24.08.2015 – No due certificate from opposite party to complainant
Ex. A9. 16.12.2015 – Letter from complainant to opposite party
Ex. A10. 19.12. 2015 – Email from complainant to opposite party
Ex. A11. 24.12. 2015 – Letter from opposite party to complainant
Ex. A12. 02. 01. 2016 – Email from complainant to opposite party
Ex. A13. 11. 01. 2016 – Legal Notice from Advocate T. Kabilan to Opposite party
Ex. A14. 12.01. 2016 – Acknowledgement for legal notice
Ex.A15- - - Letter of undertaking.
LIST OF OPPOSITE PARTIES SIDE DOCUMENTS:
Ex.B1 - Copy of statement of accounts showing delayed payments
by the complainant
Ex.B2-27.08.2015 - Copy of Sale Deed executed by the complainant in favour
of Dr. Rani
Ex.B3-06.02.2016 - Copy of reply notice sent by the opposite party to the
complainant
Ex.B4 - Copy of Photographs of the Unit S-1102
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MEMBER – I MEMBER – II PRESIDENT
