Tamil Nadu

South Chennai

CC/62/2016

M/s.D.Clive - Complainant(s)

Versus

M/s.Vera Homes Pvt Ltd - Opp.Party(s)

M/s.Waraon & Sai Rams

27 Dec 2022

ORDER

 

                   

                                                                                                                            Date of Complaint Filed : 08.02.2016

                                                                                                                            Date of Reservation      : 14.12.2022

                                                                                                                            Date of Order               : 27.12.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                          : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,          :  MEMBER  I 

                      THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No. 62/2016

TUESDAY, THE 27^th DAY OF DECEMBER 2022

 

Mr. D. Clive,

No.32, Raga Government Officers Apartments,

6^th Avenue,

Ashok Nagar,

Chennai – 600 083.                                                                                                             ...   Complainant

-Vs-

 

M/s. Verna Homes Private Limited,

OM Muruga Illam,

No.8/1, Sarojini Street,

T.Nagar,

Chennai – 600 017.                                                                                                                          ... Opposite party

******

Counsel for the Complainant            : M/s. Waraon & Sai Rams

Counsel for the Opposite Party         : M/s. R.Thiagarajan

 

        On perusal of records, and after hearing the oral argument of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by President, Tmt. B. Jijaa, M.L.,

1.     The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Party to complete the construction and deliver possession of the 50% super built up area as per the sanction plan and as per the stipulations under the agreement dated 08.03.2013 with all amenities, covered Car park, electricity connection, water and sewage connection with completion certificate from the CMDA as stipulated under the agreement and to pay a sum of Rs.5,20,000/- towards compensation from 09.12.2014 till date and to pay a  sum of Rs.40,000/- and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony along with cost of this complaint.

2.     The averments of Complaint in brief are as follows:-

The Complainant is the absolute owner of the property bearing Plot No 20, Door No.4/12, 1^st Cross Street, Royala Nagar, Ramapuram, Chennai-600 089  admeasuring an extent of 3200 sq.ft.  The Opposite party is a Promoter and Developer had entered into a Joint Venture Development Agreement dated 08.03.2013 with the Complainant for developing the property owned by the Complainant. As per the Joint Venture Development Agreement, the Opposite party agreed to construct the building per the specifications agreed under the Agreement and handover the 50% the total built up area including the common area constructed over the Schedule property owned by the Complainant together with 50% of the Car Parking Area in the stilt floor. The Complainant reciprocally agreed to give 50% Undivided Share of the land to the Opposite party as consideration. It is stipulated under the Joint Venture Development Agreement that the entire construction of the building shall be completed within 21 months from the date of signing the Agreement. In pursuance of the said Joint Venture Development Agreement dated 08.03.2013, the Petitioner handed over the possession of the property to the Opposite party on 08.03.2013 for the purpose of developing and constructing the apartment as stipulated under the Joint Venture Development Agreement. There was delay in commencing the construction and the structural design and the foundation was not in accordance with the standards of the National Building Code. Therefore, the Complainant has written letters to the Opposite party informing discrepancies in the structural design and the foundation as designed by the Opposite party. Inspite of various requests and demands made by the Complainant, the Opposite party had miserably failed to follow the standards and specifications as stipulated under the Joint Venture Development Agreement in respect of the construction of the residential apartment. The Complainant has also executed the General Power of Attorney to and in favour of the Opposite party to sell 50% of the Undivided Share of the land in favour of Complainant's nominee/nominees. The Schedule-D annexed with the Joint Venture Development Agreement dated 08.03.2013 stipulates that the 50% super built up area allotted to the Complainant should be earmarked and till such time the Developer shall not allot the flats to any third parties. The Opposite party is duty bound to earmark the 50% of the super built up area to be allotted to the Complainant and deliver the completed flats to the Complainant within a period of 21 months from the date of signing of the agreement. In the event of any delay in handing over the completed flats to the Complainant, the Opposite party has to pay a sum of Rs.40,000/- Per Month to the Complainant towards compensation till the date of handing over the possession to the Complainant. The Complainant handed over the vacant possession of the property on the date of signing the agreement and the Opposite party had applied for the approval of the plan for the proposed building. However, so far the Opposite party had not given a copy of the sanctioned plan to the Complainant. Similarly, the Opposite party had failed and neglected to handover the possession of the completed flats to the Complainant as stipulated under the agreement and thereby committed deficiency in service. The Complainant was constrained to issue legal notice dated 24.03.2015 to the Opposite party demanding to handover the possession of the completed 50% of the constructed area as per the approved plan. The Opposite party has failed to issue a reply to the legal notice issued by the Complainant. Hence the complaint.    

3. Written Version filed by the Opposite Party in brief is as follows:-

The Opposite Party submitted that as per Section 11 of the Act this Forum has no Jurisdiction to entertain any complaint where the value of the services or compensation is above 20 lakhs. Further as per Section 14 of the Act only the relief therein can be claimed and granted the relief of directing to complete the construction and delivery of the 50% of the Super built up area is nothing but specific performance of Joint Venture Contract. The complainant cannot enforce the contract worth about Rs.2 crores before this Forum. The proper remedy is to approach the Civil Court for enforcement of contract. Further submitted that there is no consumer dispute at all as to defect or deficiency of service or unfair trade practice. Being the Joint Venture the question of consideration for service does not arise and hence the Complainant is not coming under the category of consumer. In the course of business the Complainant approached the Opposite Party in the month of July 2012 and offered his property measuring 3200 sq.ft bearing Plot No.20 situated at 1^st Cross Street, Royala Nagar, Rama puram, Chennai – 600 089, comprised in old survey No.51/2, New Survey No.51/26L, Vide Patta No.5207, Ramapuram Village, Ambattur Taluk, Tiruvalluvar District for Joint Venture Project for erecting a Residential Apartment. After mutual discussion the Joint Venture Project was finalised. The Complainant, on receipt of Rs.55,00,000/- from the Opposite Party had executed Joint Venture Agreement between the Complainant and the Opposite Party on 08.03.2013. On the same day registered power of attorney was executed by the Complainant in favour of the Opposite Party. As per the Joint Venture Agreement the Complainant and the Opposite Party entitled to the built up area of the apartment at 50:50. The Opposite Party is entitled to three flats along with appropriate undivided share of land and the Complainant is entitled for three flats along with other common amenities and areas. The Opposite Party had spent more than 2 crores in completing the construction activities whereas the Complainant without complying its obligation had caused huge loss of more than 25 lakhs as on December 2014. The Complainant failed to extend cooperation in terms of the agreement and started disturbing the on-going project and also mislead the prospective purchasers.  The Opposite Party completed the project in all aspects the Opposite Party deliberately avoided to furnish life certificate and original titled deeds inspite of several requests made by the Opposite Party, causing loss to the tune of 31 lakhs. The Complainant has filed this complaint as a counter blast to the Opposite Parties claims and demands in their various letters. Hence the complaint is to be dismissed.

4.     The Complainant has filed his Proof Affidavit and Written Arguments and on the side of the Complainant Exs.A-1 to A-6 were marked. The Opposite Party has filed its Proof Affidavit and Written Arguments and on the side of the Opposite Party Exs.B-1 to B-15 were marked.

Points for Consideration:-

1.     Whether this Commission has got jurisdiction to entertain the complaint?    

2.     Whether the Complainant is a Consumer as defined under the Consumer Protection Act, 1986?

3.     Whether there is a deficiency of service on the part of the Opposite Party?

4.     Whether the Complainant is entitled for relief claimed and to what other relief the Complainant is entitled?

Point No.1 :-

                The Complainant contended that he is the absolute owner of the property at Plot No.20, Door No.4/12, 1^st Cross Street, Royala Nagar, Ramapuram, Chennai – 600 089 measuring an extent of 3200 sq.ft. The Opposite Party had entered into a Joint Venture Development Agreement, dated 08.03.2013, with the Complainant, the Opposite Party agreed to construct the building as per the specifications on the property owned by the Complainant and hand over 50% of the total built up area including the common area together with 50% of car parking area in the stilt floor and the Complainant reciprocally agreed to give 50% of undivided share of land to the Opposite Party as consideration. It is stipulated under the Joint Venture Development Agreement that the construction shall be completed within 21 months from the date of the Agreement, i.e., on or before 09.12.2014. However the Opposite Party failed to follow the standards and specifications under the Joint Venture Development Agreement and caused delay to complete the construction and failed to deliver the 50% of the super built up area as contemplated under the Agreement to the Complainant which is a clear deficiency in service.

        The Opposite Party contended that this commission had no jurisdiction to entertain the complaint where the value of the services or compensation is above Rs.20 lakhs. Further the relief of directing the opposite Party to complete the Construction and delivery of 50% of the super Built Up area is nothing but specific performance of Joint Venture Contract and the proper remedy is to approach Civil Court for enforcement of Contract.

        As regards the question of Jurisdiction, the relief claimed by the Complainant is for Construction and delivery of 50% of super built up area in terms of the Agreement dated 08.03.2013, by the Agreement for Joint Venture and Development, the Opposite Party had agreed to develop the land belonging to the Complainant and hand over 50% of the built up area to the Complainant, where no specific value for the building to be developed by the Opposite Party is mentioned. The compensation claimed is Rs.5,20,000/- and further compensation at the rate of Rs.40,000/- per month from the date of filing till delivery of possession and Rs.5,00,000/- for mental agony, where the total claim of the complainant does not exceeds the pecuniary limits of this Commission.

        In so far as, the relief for delivery of 50% of the built up area, by the Opposite Party, the contention of Opposite Party is that the relief sought is in the nature of specific performance and that the Complainant had to approach Civil Court, it is pertinent to point out that the service of housing Construction comes under the purview of the Consumer Protection Act, and hence this Commission has got Jurisdiction to entertain the complaint. Accordingly, Point No.1 is answered.

Point No.2

        The contention of the Opposite Party is that being a Joint Venture Agreement entered into between the Complainant and Opposite Party the question of consideration for service does not arise and that there is no consumer dispute as to deficiency in service and unfair trade practice. As per the Joint Venture Development Agreement dated 08.03.2013, the Opposite Party had agreed to construct building on the land belonging to the Complainant, and the Complainant had agreed to give 50% undivided share of land to the Opposite Party as consideration which shows that the complainant had availed services from the Opposite Party for consideration and as the Complainant availed services of the Opposite Party for consideration, which consideration need not be in terms of money, the Complaint falls under the definition of consumer as defined under the Consumer Protection Act,1986. Accordingly, Point No.2 is answered.

Point No.3 :-

        A perusal of Ex.A-1, the Joint Venture Development Agreement dated 08.03.2013 shows that the Opposite Party had agreed to complete construction of the building on the land belonging to the Complainant within 21 months from the date of signing of the Agreement as contained in the clause 3 of the Agreement. Further there is default clause which states that in case the Opposite Party caused default or delay in handing over the super built up area as earmarked over and above the 21 months, the Complainant is entitled for  sum of Rs.40,000/- per month for the delayed period, as contained in clause 11 of the Agreement. The Opposite Party had to complete the Construction on or before 09.12.2014, the Opposite Party had issued letter dated 21.12.2014, Ex.B-3 to the Complainant informing that they had completed the Construction and that as the Complainant having executed Power of Attorney in favour of Mr.Chellapa, Managing Director of the Opposite Party, they sought for Life Certificate of the Complainant and documents to execute Sale Deed in favour of prospective buyer in respect of their 50% share. As the Complainant had failed to co-operate in furnishing Life Certificate and other documents, the Opposite Party had issued other letters dated 13.02.015, and 25.02.2015,  Ex.B-4 & Ex.B-5 to comply with the requirements of the Opposite Party, failing which to take appropriate legal action against the Complainant. The Complainant without issuing reply to the letters of the Opposite Party had caused legal notice dated 24.03.2015, Ex.A-5 to earmark and hand over the possession of 50% Constructed area and get the documents as sought by the Complainant, which was suitably replied by the Opposite Party by Ex.B-7.

        On careful consideration of the facts and circumstances of the case it is seen during the pendency of the case the Complainant had taken over possession of 3 flats 1A, 1B and 3A as per the Agreement for Joint Venture and Development dated 08.03.2013, which they are lawfully entitled. Further as regards the compensation sought for it is seen from Ex.A-9, during the process of construction the Complainant had caused some delay as he wanted certain changes in the underground sump,   staircase and in the direction of main entrance to staircase after the work was carried out as per the drawing of the structural design. However the Opposite Party had completed the construction work by Dec.2014 except the finishing works as seen from Ex.B2 and Ex.B-11, the completion certificate issued by the CMDA on 23.04.2015 in respect of the said property. If at all there was any delay in completion of the construction, it is only attributable to the Complainant as seen from the records and due to the  intervention of the Complainant. In view of the above discussions we hold that there is no deficiency on the part of the Opposite Party. Accordingly, Point No.3 is answered.

Point No.4:-

        As discussed and decided Point No.3 against the Complainant, the Complainant is not entitled for the reliefs claimed in the complaint and for any other relief/s. accordingly, Point No.4 is answered.

In the result the Complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 27^th of  December 2022. 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	08.03.2013	Joint Development Agreement
Ex.A2	08.03.2013	General Power of Attorney
Ex.A3	13.02.2015	Letter written by the Opposite Party to the Complainant
Ex.A4	25.02.2014	Letter written by the Opposite Party to the Complainant
Ex.A5	24.03.2015	Lawyer’s Notice issued by the Complainant to the Opposite Party along with the Acknowledgement
Ex.A6	05.07.2016	Certificate of Encumbrance of Property

List of documents filed on the side of the Opposite Party:-

Ex.B1	17.08.2012	Receipt issued by the Complainant
Ex.B2	21.12.2014	Letter sent by the Respondent to the Complainant
Ex.B3	22.12.2014	Acknowledgement card for the letter dated 21.12.2014
Ex.B4	13.02.2015	Letter sent by the Respondent to the Complainant
Ex.B5	25.02.2015	Letter sent by the Respondent to the Complainant
Ex.B6	24.03.2015	Legal notice sent by the Complainant
Ex.B7	28.03.2015	Reply notice sent by the Respondent to the Complainant
Ex.B8	31.03.2015	Acknowledgement card for the reply notice
Ex.B9	28.02.2014	Copy of mail
Ex.B10	25.02.2015	Copy of letter
Ex.B11	23.04.2015	Copy of completion certificate
Ex.B12	13.04.2019	Copy of letter
Ex.B13	24.04.2019	Copy of letter
Ex.B14	25.04.2019	Copy of letter
Ex.B15	-	Copy of Photocopies

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                      MEMBER I                         PRESIDENT