Tamil Nadu

South Chennai

CC/63/2017

Mrs. R.Srilasri W/O Mr.S.Sabarigreesh - Complainant(s)

Versus

M/s.VGN inFRA India Pvt ltd - Opp.Party(s)

M.Balakrishnan

08 Aug 2022

ORDER

Date of Complaint Filed:11.01.2017

Date of Reservation     : 07.07.2022

Date of Order              : 08.08.2022

 

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.63/2017

MONDAY, THE 8^th DAY OF AUGUST 2022

1.Mrs. R. Srilasri,

   W/o. Mr. S. Sabarigreesan,

 

2.Mr. S. Sabarigreesan,

   S/o. R. Soundarajan,

   (Both are residing at),

   Door No.S1, Plot No.6,   

   VGN Krona,

   Madha Town Extension,

   Gerugambakkam,

   Chennai – 600 122.                                                       ... Complainants

 

..Vs..

M/s. VGN Infra India Private Limited,

Rep. by Mr. K. Manivannan,

No.15, Wallace Garden II Street,

Nungambakkam,

Chennai – 600 006.                                                      ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. Dr.M. Balakrishnan

Counsel for the Opposite Party       : M/s. K. Harishankar

 

        On perusal of records and after having heard the oral arguments of the Counsel for Complainants and the Counsel for the Opposite Party, we delivered the following:

 

ORDER

Pronounced by the 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 allot an earmarked covered car parking slot for Flat No.S1, Plot No.6, VGN Krona, Gerugambakkam in the same block where his flat is situated and to fully address the deficiencies in the rest room and seepage in the wall which was partially addressed and to pay a sum of Rs.3,00,000/- for causing untold anguish and mental agony and hardship and to pay the costs of this complaint.

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

The Complainants  have entered into an agreement with the Opposite Party for the construction of a Flat (965 sq.ft Door No: S1, Plot No.6) at S.No: 214 (2236 sq.ft) known as VGN KRONA in Gerugambakkam Village, Sriperumbudur Taluk, Kancheepuram District. The said flat has been handed over to them as per the letter dated 17-10-2014 of the Opposite Party. As per the Agreement for "Development and Construction" dated 19-08-2011, between the Opposite Party and the Complainant, the former have agreed and committed themselves for the provision of earmarked "Single covered car park” marked and allotted for which the Opposite Party separately charged and collected Rs.1,50,000/- towards the fee for car parking slot from the Complainant. The Agreement between the Opposite Party and the Complainants further provided that the car park slot shall not be further charged at any point of time. Adding insult to the injury the Complainants further rue that there is seepage in the walls of Door No: S1, Plot No:6, and also damage in the W/C in the rest room, besides on the terrace on the Plot No:6 which add up to the woes of the Complainants. Since the provisions of the agreement between the Opposite Party and the Complainants have been observed in their breach in so far as the deficiencies listed above, the Complainants bemoan that they are aggrieved and anguished since the Opposite Party has not cared to comply with the specific provisions of the agreement related to allotment of earmarked covered car parking slot for Door No: S1, Plot No:6. The Opposite Party has turned a deaf ear and did not act upon the request and plea of the Complainants on several occasions both in person, over phone and through emails and website too as suggested by the Opposite Party. The Complainants accepted the possession of the flat subject to the dissenting notes written in the confirmation letter itself. The Opposite Party dishonored the said agreement under which the Opposite Party bound themselves to resolve any contested issue by mutual discussion and failing which by arbitration as contemplated agreement. Their efforts to get these issues addressed fully have not evoked any positive response from the Opposite Party and the deficiency in services continue till date save the partial relief referred. The Complainants through their legal counsel issued two notices dated 26.10.2015 and 20.01.2016 which elicited a belated disappointing response stating that the issue has been closed. The Complainants have provided herewith proof of the car park area in the common passage area in between two blocks covered with temporary sheets. The principles of equity, justice and fairness demand that, as the allottees of the largest saleable area (965 sq.ft), they are entitled to a pucca covered earmarked car park right in the block wherein their flat is situated. The Complainants further provided proofs which clearly show that the other flat allottees with less saleable area (G1-791 Sq.ft; F1-959 Sq.ft; & F2-958 Sq.ft) have been allotted pucca earmarked covered car park right in the same block premises wherein they are flats are situated. Whereas the Complainants (S1 with the largest saleable area of 965 sq.ft) have been shown the space in between two blocks covered with temporary sheets. Hence the complaint.

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

The Opposite Party submitted that the complaint is not maintainable both on facts and in law. Admittedly the Complainants have taken delivery of the flat allotted to them on 17.10.2014. The complaint is filed in January 2017 more than two years after the delivery. Therefore, clearly the complaint is beyond the two years period stipulated under Section 24A of the Consumer Protection Act. On this ground alone the complaint deserves to be dismissed. It pertains to issues arising out of a commercial contract between the Parties and therefore being a contractual dispute would not fall within the purview of the Consumer Protection Act. Also, serious factual allegations are made in the Complaint and this requires appreciation of evidence, which cannot be done in a summary proceeding, before this Hon'ble Forum. As per clause 76 of the Agreement for Development  and Construction  Complainants have to invoke arbitration for resolving their dispute if any. The Opposite Party is a Reputed Builder who had successfully completed all the projects to their Customers and the Customers are fully satisfied that their dream houses are constructed in an excellent manner. The Complainants had entered into an Agreement for Development and Construction with the Opposite Party for constructing the apartment having built up area 965 Sq Ft bearing Apartment No.S-1 in Second Floor, Plot No.6. As per the clauses of the Construction Agreement in page No.7 and Para No.35, "the Complainants who are the allottees agree to park their two wheeler(s) only in the space provided for it and agrees not to park it in the vacant Car Parking Area. The Construction Agreement, it is clearly mentioned that the allotment of the car park is the sole discretion of the Developer. Transfer, exchange or preferred car park allotment is strictly not possible and the Allottees agree to accept the car park allotted by the Developer". It is to be noted that the clause has been mutually agreed by both the Complainants and the Opposite Party and have been bought to effect from the time of signing the Construction Agreement. So the Complainants have already agreed to accept the Car Parking allotted by the developer. The Opposite Party submits that the Complainants after complete inspection of the said residential unit and the project had given their inspection report and confirmation of their satisfaction. Hence, there has been no deficiency of service by the Opposite Party. The Car Parking was allotted as a special case on the request of the Complainants in a Separate Parking Area between two blocks and Complainants are using it from the date of handing over of possession till date. So there is no deficiency in service on the part of the Opposite Party. The seepage in the walls and the damage in the W/C in the rest room have all been attended by their Construction Department and all the defects informed by the Complainants have been rectified by the Opposite Party. There are no merits in the contention of the Complainants and there has not been any deficiency of service, hence prayed to dismiss the complaint.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-7  were marked.   

The Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the Opposite Party, no document was marked.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

Upon perusal of Ex.A-1 it is evident that the Complainants had entered in to the Agreement for "Development and Construction" dated 19-08-2011, with the Opposite Party for the construction of a Flat measuring 965 sq.ft at Door No: S1, Plot No.6 at S.No: 214 (2236 sq.ft) known as VGN KRONA in Gerugambakkam Village, Sriperumbudur Taluk, Kancheepuram District. As per Ex.A-4 the said flat has been handed over to the Complainants on  17-10-2014 by the Opposite Party. The contention of the Complainants was that the Opposite Party have collected Rs.1,50,000/- and  committed  for the provision of earmarked Single covered car park marked to the Complainants as per Annexure II of the agreement. The Opposite Party did not comply with the specific provisions of the Agreement related to allotment of earmarked covered car parking slot for the Complainants. The seepage in walls and damages in the W/C in the rest room were not fully attended by the Opposite Party.

The Opposite Party contended that the Car Parking was allotted to the Complainants in a Separate Parking Area between two blocks and Complainants are using it from the date of handing over of possession till date. The seepage in the walls and the damage in the W/C in the rest room have all been attended by their Construction Department and all the defects informed by the Complainants have been rectified by the Opposite Party.

The Arbitration clause in the Agreement does not preclude this Commission in maintaining the present Complaint. The terms of the Agreement for Construction and Development dated 19.08.2011, Ex.A-1, entered between the Complainants and the Opposite Parties stipulate that the allotment of the car park is the sole discretion of the Developer and that transfer, exchange or preferred car park allotment is strictly not possible. Clause 35 of the Agreement relied by the Complainants stipulates that the allottees namely the Complainants shall park vehicle only in the car space specifically allotted to the allotees and not earmarked and numbered as contended by the Complainant. Having agreed to the terms and conditions of the Agreement and executed the Agreement for Construction and Development, the Complainants are bound by it.

Moreover the Complainants had taken possession of the Flat along with car parking on 17.10.2014, Ex.A-4 and had confirmed of having satisfied with the completion of his residential unit as per the specification and terms of the Agreement and that he did not have any claim as against the Developer in respect of the construction of flat and the facilities and amenities provided to him. Though the Complainants allege that they had accepted the flat with protest on the issue of common park area, the alleged hand written note on the letter dated 17.10.2014 only state that the car park is yet to be marked and allotted but however the car park has been already allotted and the alleged rainwater leakage at the walls was also addressed by the Opposite Parties which was admitted by the Complainants themselves but alleges not completely redressed which is not substantiated by proper evidence. Considering the facts and circumstances of the case we found that there is no deficiency in service on the part of the Opposite Party. Accordingly, Point No.1 is answered.

 

8.      Point No.2 & 3

        We have discussed and decided that there is no deficiency in service on the part of the Opposite Party and thereby Complainant is not entitled to get any reliefs as claimed in the complaint. Accordingly, Point Nos. 2 and 3 are answered.

        In the result this complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 8^th of August 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	19.08.2011	Copy of Agreement for development and construction between the Opposite Party and the Complainant
Ex.A2	26.10.2015	Copy of First legal notice sent to the Opposite Party with acknowledgement due
Ex.A3	20.01.2015	Copy of Second legal notice sent to the Opposite Party with acknowledgement due.
Ex.A4	17.10.2014	Copy of Letter of handing over possession of the flat (with dissenting note to the Opposite Party)
Ex.A5	-	Copy of Photographs of car parking area for the Complainant – (With pucca roof of others)
Ex.A6	-	Copy of Sketch of the flats in proof of saleable area
Ex.A7	-	Copy of Proof of conversation through email between the Complainants and the Opposite Party for car parking etc.,

 

 

 

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

 

NIL

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT