Tamil Nadu

South Chennai

CC/198/2014

N.K.Subramanian - Complainant(s)

Versus

M/s.Ramaniyum Real Estates Pvt Ltd., - Opp.Party(s)

Party in person

27 May 2016

ORDER

                                                                        Date of Filing :   02.04.2014

                                                                        Date of Order :   27.05.2016.

 

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.198/2014

FRIDAY THIS  27^TH  DAY OF MAY 2016

 

N.K. Subramanian,

2D, “Ramaniyam Gallery”.

New No.63, East Coast Road,

Thiruvanmiyur,

Chennai 600 041.                                         ..Complainant

                                         ..Vs..

The Managing Director,

M/s. Ramaniyum Real Estates Pvt. Ltd.,

No.11, 2^nd Main Road,

Gandhi Nagar,

Adyar,

Chennai 600 020.                                         ..Opposite party   

 

 

For the Complainant                    :    Party in person      

For the opposite party                 :    M/s. R.Usha Priya

 

Complaint under section 12 of the Consumer Protection Act 1986.  The  complaint is filed seeking direction against the opposite party to pay a sum of Rs.8,00,000/- as compensation for deficiency in service and also to pay cost of the complaint.

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

 

1.The case of the complainant is briefly as follows:-  

 

         The complainant submit that the complainant and his wife having purchased UDS to the extent of  583.35 sq ft. under Ex.A10 the sale deed dated 25.10.2006 and being the owner of the said undivided share have entered construction agreement  with the opposite party firm, the building promoter under Ex.A9 dated 16.3.2006 for construction of a flat measuring 1429 sq ft. of plinth area and 220 sq ft of common area aggregating 1649 sq ft of saleable area of flat in 2^nd floor bearing flat No.2D, with one designated open car park.    As per the said agreement the total consideration for construction of Rs.27,33,373/- which is exclusive of registration charges and inclusive of deposits towards MES and Metro water connections and one designated open car park.  After completion of the construction,  the possession of the   flat  was taken over by the contracting party on 5.11.2008.   Further the complainant stated that the opposite party have collected the amount of Rs.1,11,531/- as service taxes, whereas  it was exempted  by the authorities by the Service Tax department circular dated 29.1.2009 as such despite demands made by the complainant to the opposite party neither produced the documents for payment of service taxes to the concerned department or  refund the said amount to the complainant.     Further there are other common facilities mentioned in the construction agreement were also not provided by the opposite party for the  said flat  and   though the amount

was collected for getting electricity connection for the said flat by the opposite party they have not obtained and provided but the complainant themselves have applied and obtained a service connection for the flat as such the opposite partly is also liable to return the amount collected for getting electricity connection to the said flat.   Despite of demand made by the complainant they have not compiled the same.   As such the  opposite party has committed deficiency in service.     As such the complainant has sought for claiming for a sum of Rs.8,00,000/- as compensation for deficiency in service and also to pay cost of the complaint.    Hence the complaint.       

Written Version of opposite parties are  in briefly as follows:

2.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The opposite party  submit that  the complaint is time barred since the handing over possession was defected on 5.11.2008 after lapse of  nearly  6 years this complaint is filed which is not accordance to the Sec.24 A of the Consumer Protection Act.   Further, the opposite party also raised objection that the complainant is not a party to contract in the construction agreement and the opposite party mentioned is also not proper as such the complaint is also suffered for the above defects.  Further, the opposite party submit that the service taxes collected from the owner of the flat as per the construction agreement which is lawful and where also paid to the concerned department of the Government  by the opposite party and the complainant has no right to question the same and to claim refund.   Further no payment for electricity connection charges have been paid by the complainant to the opposite party as such  there is no deficiency in service in that respect the other common amenities were already provided as per the construction agreement on the date of handing over possession.   Therefore the complaint filed by the complainant is not maintainable and complainant is not entitled for any relief sought in the complaint and the complaint is liable to be dismissed. 

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A10 were marked on the side of the complainant.   Proof affidavit of  Opposite party filed and no document was marked on the side of the  opposite party.   

4.      The points that arise for consideration are as follows:-

1.   Whether the opposite party has committed  deficiency of

 service  as alleged in the complaint?

2.   Whether the complainant is entitled for the relief sought for in

the complaint? If so to what extent ?       

3.   Whether the complaint is barred by limitation?

 

5.  POINTS  1 to 3:

Perused the complaint filed by the complainant, the written version filed by the opposite party, proof affidavit filed by both sides, and the documents Ex.A1 to Ex.A10 filed on the side of complainant and also considered the both side arguments.

6.     Considering the both side case there is no dispute that Mrs. S.Krishnan and Shobana Sivagnanam being the husband and wife having purchased UDS to the extent of  583.35 sq ft. under Ex.A10 the sale deed dated 25.10.2006 and being the owner of the said undivided share have entered construction agreement  with the opposite party firm, the building promoter under Ex.A9 dated 16.3.2006 for construction of a flat measuring 1429 sq ft. of plinth area and 220 sq ft of common area aggregating 1649 sq ft of saleable area of flat in 2^nd floor bearing flat No.2D, with one designated open car park.    As per the said agreement the total consideration for construction of Rs.27,33,373/- which is exclusive of registration charges and inclusive of deposits towards MES and Metro water connections and one designated open car park.    Further as per clause-4 of the said agreement if any taxes levies become liable to be paid in respect of the flat and building including tax on works contracts  like sales tax, service tax  etc., by the Builder,  the share of such taxes and levies proportionate to the share of the Contracting Party in the building shall be paid by contracting party to the Builder in addition to the consideration payable under clause-3.    This shall be paid on demand.  

7.     Further there is no dispute that after completion of the construction,  the possession of the   flat  was taken over by the contracting party on 5.11.2008.  

8.     Now this complaint is filed by the power agent of the said contracting parties / flat owners  Mrs. S.Krishnan and Shobana Sivagnanam against the Managing director of the M/s.Ramaniyam Real Estate Pvt. Ltd. / The promoter firm raising grievance that the opposite party have collected the amount of Rs.1,11,531/- as service taxes, whereas  it was exempted  by the authorities by the Service Tax department circular Ex.A1, dated 29.1.2009 as such despite demands made by the complainant to the opposite party neither produced the documents for payment of service taxes to the concerned department or refund the said amount to the complainant.   Further there are other common facilities mentioned in the construction agreement were also not provided by the opposite party for the said flat and though the amount was collected for getting electricity connection for the said flat by the opposite party they have not obtained and provided but the complainant themselves have applied and obtained a service connection for the flat as such the opposite partly is also liable to return the amount collected for getting electricity connection to the said flat.   Despite of demand made by the complainant they have not compiled the same the opposite party have committed deficiency in service and liable to pay claim of compensation to the complainant.  

9.     Whereas the opposite party has raised objection stating that the complaint is time barred since the handing over possession was defected on 5.11.2008 after lapse of  nearly  6 years this complaint is filed which is not in accordance to the Sec.24 A of the C.P. Act.   Further, the opposite party also raised objection that the complainant is not a party to contract in the construction agreement and the opposite party mentioned is also not proper as such the complaint is also suffered for the above defects.  Further, the opposite party also raised objection that the service taxes collected from the owner of the flat as per the construction agreement which is lawful and were also paid to the concerned department of the Government by the opposite party and the complainant has no right to question the same and to claim refund.   Further no payment for electricity connection charges have been paid by the complainant to the opposite party as such  there is no deficiency in service in that respect the other common amenities were already provided as per the construction agreement on the date of handing over possession.  The grievance made by the complainant for non providing common amenities are not valid if such deficiency would be there the other owner of the flats would have raised the same, however there is no such grievance from the other owners in the said apartment.  Therefore contended that  the complaint filed by the complainant is not maintainable and complainant is not entitled for any relief sought in the complaint and complaint is liable to be dismissed.

10.    As contended by the opposite party the complaint mentioned complainant N.K.Subramaniam is not a party to the construction agreement mentioned in the  complaint, but this complaint is filed by him only as a power agent of the actual party to the contract for the construction of the flat Mrs. S.Krishnan and Shobana Sivagnanam, the general power of attorney confirmation of attorney still in force is filed along with Ex.A6.   However instead of mentioning in the cause title in a proper way such as by mentioning the actual flat owners names and the said Subramaniam as their power agent, the power agent has filed this complaint mentioning him as a complainant.  Since it is the complaint filed under Consumer Protection Act such technical defects cannot be looked into as a serious defect.    

11.    Further it is admitted case of the complainant that after the completion of construction of flat was handed over by the opposite party to the contracted party / flat owners on 5.11.2008.  The grievance mentioned amounts towards payment of service taxes were all paid by the contracting  party during the year 2007-2008 as per Ex.A8.  Therefore claiming refund of the amount and questioning the liability of payment of service tax by the opposite party to the Government in the complaint filed by the complainant in the year 2014 is barred by limitation as contended by the opposite party is acceptable.  

12.    Further, the complainant has relied the receipts given by the opposite party for the payment made to the opposite party by the complainant towards the   construction of the flat that are Ex.A8 series.   On perusal of Ex.A8 series as mentioned in the said receipts a sum of Rs.1,11,531/- was collected by the opposite party from the complainant towards service charges.    As contended by the opposite party the said service charges were collected by the opposite party the promoter/ builder from the complainant / contracting parties as mentioned in the construction agreement Ex.A9 is acceptable.    Considering the facts and circumstances of the case the opposite party is the promoter is entitled to collect service charge for the service availed by the complainants / contracting parties for the construction of the flat and the said service tax is liable to be paid by the promoter/opposite party to the concerned authorities of the Government as the said firm is made earning by providing service of construction of building to the contracting parties. Contrary to this the contention made by the complainant that the opposite party is exempted for charging service charge for the complaint mentioned construction of flat as per circular of  Department of Government  Ex.A1 is not acceptable as it is not applicable.     Therefore as contended by the opposite party the said service charges collected by the opposite party from the complainant is in accordance to the law and the same was paid by them to the concerned authorities department of Govt. is also acceptable.   Therefore the complainants / contracting parties having availed the service of construction from the opposite party and having paid the service taxes as agreed in their construction agreement demanding the document for payment of service taxes to the Govt. by the opposite parties and as alternative in the event of non production of such document seeking refund of the said amount from the opposite party is not sustainable in law.   Therefore the grievance made in the complaint against the opposite party by the complainant is not sustainable and the complainant is not entitled for any relief in respect of the same.  

13.    Further the complaint grievance that the opposite party has not obtained electricity connection for the said flat despite of collected  the amount from the complainant as such the amount liable to be refundable is also not proved on the side of the complainant.   As per the  construction agreement the charges for getting electric connection and other amenities are all to be made as separate to be paid by the contracting party to the opposite party as per the clause-2 of the construction agreement.   Therefore the necessary document for payment for the charges for getting electric connection made to the opposite party is to be produced by the complainant since the opposite party have denied categorically that no such amount has been collected from the complainant.    Therefore it is the burden on the complainant to prove the amount paid to the opposite party towards the charges for getting electric connection for the said flat by producing necessary document.  But the complainant has miserably failed to produce document.  As such the complainant has miserably failed to prove the said allegation against the opposite party as such the complainant is not entitled for any relief towards the said grievance.   Further though the complainant has simply mentioned in the complaint that the opposite party has not provided common amenities to the said flat to the complainant there is no proper pleading in the complaint regarding the said particulars of amenities which were not provided by the opposite party.   Further it is also appears to be not proper on the part of the complainant for claiming regarding the non providing of common amenities as a individual flat owner against the opposite party that too after expiry of nearly 6 years from taking possession of the flat.    Therefore as contended by the opposite party the grievance made by the complainant with regard to non providing of common amenities are not proved on the side of the complainant and also such reliefs is barred by limitation as per Consumer Protection Act 1986 are all acceptable.  

14.    Therefore as discussed above we are of the considered view that the complaint filed by the complainant alleging the deficiency of service against the opposite party is not proved and the complaint is also barred by limitation under sec 24 A of Consumer Protection Act,  as such the complainant is not entitled for any reliefs sought for in the complaint against the opposite party and complaint is liable to be dismissed.    Considering the facts and circumstances of the case the parties are to bear their own cost.  Accordingly the points 1 & 2 are answered against the complainant.

          In the result, this complaint is dismissed.  No cost.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  27^th   day  of  May   2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents :

Ex.A1-  29.1.2009  – Copy of Service tax circular.

Ex.A2- 30.6.2012   - Copy of request letter to the opposite party

Ex.A3- 1.8.2012     - Copy of notice to the opposite party

Ex.A4- 4.8.2012     - Copy of letter from opposite party.

Ex.A5- 23.8.2012   - Copy of letter from opposite party.

Ex.A6- 19.11.2012  -Copy of letter  to opposite party.

Ex.A7- 7.3.2012     - Copy of notice to the opposite party.

Ex.A8-  -               - Copy of Service tax receipts.

Ex.A9- 16.3.2006    - Copy of Construction Agreement.

Ex.A10-25.10.2006  - Copy of Sale deed.

Opposite party’s side documents: -  ..Nil..

 

MEMBER-I                        MEMBER-II                             PRESIDENT.