Tamil Nadu

South Chennai

CC/216/2016

Subhau Kumar - Complainant(s)

Versus

M/s.Vijay Shanthi Builders Ltd - Opp.Party(s)

G.Dilip Kumar and Others

06 Sep 2022

ORDER

Date of Complaint Filed : 18.04.2016

Date of Reservation      : 08.08.2022

Date of Order               : 06.09.2022

 

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.216 /2016

TUESDAY, THE 6^th DAY OF SEPTEMBER 2022

Subhav Kumar,

Son of M.Mahaveer,

Represented by his father and power agent,

Mr.M.Mahaveer,

No.3/1, Subba Reddy Street,

West Mambalam,

Chennai - 600 033.                                                           ... Complainant     

 

..Vs..

M/s.Vijay Shanthi Builders Ltd.,

Rep. by its Managing Director,

Having its Office at No.20/43,

Kasthuri Rangan Street,

Alwarpet,

Chennai - 600 018.                                                         ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. G.Dilip Kumar

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

 

        On perusal of records and after having heard the oral arguments of 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 pay the compensation of Rs.5,00,000/- towards the mental agony and hardship suffered by the Complainant and to hand over the keys of his flat after rectifying the defects to the Complainant along with cost.

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

The Complainant purchased a Flat in Tower IV, 1^stFloor-Flat E situated in the “Lotus Pond” Project of Opposite Party at Kelambakkam, Chennai – 603 103 upon execution of a Construction Agreement dated 05.04.2010 and Sale Deed dated 12.07.2010 vide document No.4918/2010. He has paid the entire sale consideration to the Opposite Party through Bank loan availed from Citi Union Bank, T. Nagar branch. The Opposite Party handed over the possession of the Flat with keys on 18.06.2013 and after inspection of the said flat the Complainant complained about the incomplete inner work on the same day in writing, which the Opposite Party promised to rectify at the earliest. The keys of the said flat were taken back by the Opposite Party for carrying out the incomplete work.  Since no intimation was received from the Opposite Party the Complainant issued a legal notice dated 05.03.2014 which was received by the Opposite Party. On 09.09.2014 the Opposite Party demanded the second set of keys of the flat for rectifying the defects as the first set of keys of his flat has been stolen. The Opposite Party did not rectify the defects and hence a legal notice dated 20.11.2015 was issued by the Complainant to the Opposite Party. The Opposite Party issued a reply dated 01.02.2016 for which the Complainant issued rejoinder letter dated 04.02.2016. The act of the Opposite Party, who failed and neglected to rectify the defects and  handover the keys of the Flat to him is nothing but deficiency in service which the Opposite Party is really bound to compensate. Hence the complaint.

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

The Complainant had purchased a flat measuring 1155 sq.ft, Flat “E” in the project called “Lotus Pond” at Kelambakkam, Kanchipuram District and the Complainant had taken possession of the said flat on 20.04.2013.  The Complainant had filed the complaint in the year 2016 which is beyond the period of 2 years and hence  barred by limitation. By virtue of the Tripartite Agreement dated 05.04.2010 wherein as per clause 27 it was specifically agreed that the parties to the contract shall refer the matter to arbitration in case of any dispute hence the dispute is arbitrable. The Complainant had failed to comply the payment schedule as mentioned in the Tripartite Agreement dated 05.04.2010 inspite of various reminders to the Complainant for the stage wise payment.  The Opposite Party had agreed to construct the apartment within 12 months with a grace period of 3 months from the date of receipt of all the necessary approval and permits from the competent authorities.  The Complainant had taken possession of the flat on 20.04.2013 and after due physical inspection and he acknowledged his satisfaction in his affidavit on 20.04.2013 and further confirmed that there was no pending work of construction within his knowledge and agreed to undertake any other work on his own cost. On 27.04.2016 the Complainant contacted the Opposite Party to complete the works inside his flat and accordingly he handed over a set of key to the Opposite Party. The Complainant did not take back the keys from the Opposite Party after completion of work and has choosen this complaint with ulterior motive.   Hence the complaint is to be dismissed.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as Ex.A-1 to Ex.A-11. The Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the Opposite Party

documents were marked as Ex.B-1 to Ex.B-56.       

5.     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

                The undisputed facts are that the Opposite Party had entered into a Tripartite Agreement on 05.04.2010 with the Vendor and Complainant for the construction and development of residential apartments comprising 23 Blocks under the name of “Lotus Pond” project located at 48, IT High way, Thaiyur Village, Kelambakkam, Chennai.  The Complainant had purchased a  Flat measuring 1155 Sq.ft of built up area  in T-4, F1 – E, situated in the “Lotus Pond” Project for a valuable sale consideration along with the  undivided share of land measuring 437.54 sq.ft on 12.07.2010 as found in Ex.A1 and Ex.A2. The Complainant had taken possession of the flat on 20.04.2013, as per the possession letter dated 20.04.2013, Ex.B-5 pursuant to which the Complainant had executed an affidavit dated 20.04.2013, Ex.B-10 confirming that there was no pending work of construction and acknowledging his satisfaction after due inspection of the flat.

                The dispute arose when the Complainant had taken over possession of the flat. According to the Complainant he had taken possession of Flat on 18.06.2013 and after inspection of the said flat the Complainant,  complained about the incomplete inner work to the Opposite Party, who promised to rectify the same. Though the Opposite Party had taken back the keys they had not completed the defective works and returned the keys to the  Complainant.

        The contention of the Opposite Party is that the Complainant had made an initial payment of Rs.50,000/- during the booking of the said flat on 16.01.2009 and the next installment payment of Rs.10,00,000/- on 25.03.2010 and there after he failed to comply the payment  as per the schedule of the Tripartite Agreement dated 05.04.2010. The Opposite Party had sent various reminders to the Complainant for stage wise payment, the Complainant paid his final payment only on 19.04.2013. The Complainant had sought for modification in his apartment through letter dated 16.10.2010, Ex.B-18. The Opposite Party completed the Complainant’s additional works and handed over the Flat to the Complainant in time. 

        On careful consideration of the facts and circumstances of the case it is evident that the Complainant had taken possession of the flat on 20.04.2013 as per Ex.B-10, however according to the Complainant he had taken possession of Flat on 18.06.2013 . Though the Complainant contends that the Opposite Party had not rectified the defects which amounts to deficiency in service, the Complainant had approached the Arbitral Tribunal for the same reliefs. In respect of the same grievance the Lotus Pond Residential Welfare Association through its President had initiated arbitration proceedings in O.P No.241/2015 in Arbitration Case No.21/2015 and an Arbitral Award was passed by the Sole Arbitrator on 01.12.2017 granting certain reliefs. Once the arbitration clause was invoked by a party to resolve certain disputes and an Arbitral Award came to be passed then the parties cannot proceed before this Commission in respect of the same relief based on the same cause of action. The association of flat owners in which the Complainant is one of the members had invoked the arbitration clause in the Construction Agreement and an arbitrator was appointed and an Arbitral Award was passed on 01.12.2017 granting some reliefs based on the deficiency in service on the part of the Opposite Party in the matter of non provision of certain amenities and on failure to perform certain acts as promised in the Construction Agreement, this Commission is of the considered view that the relief sought for is based on the same cause of action based on deficiency in service of the Opposite Party that was already decided by the Arbitral Tribunal this complaint is liable to be dismissed. Accordingly, Point No.1 is answered against the Complainant.

Point No.2 and 3:

As discussed and decided Point No.1 against the Complainant, the Complainant is not entitled for the reliefs claimed in the complaint and for any other reliefs. Accordingly, Point Nos.2 and 3 are 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 6^th of September 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	05.04.2010	Tripartite Agreement for Construction
Ex.A2	12.07.2010	Sale Deed Doc No.4918/2010
Ex.A3	30.05.2015	Specific Power of Attorney
Ex.A4	18.06.2013	Acknowledgement for receiving keys   to rectify the defects by the representative   of the opposite party
Ex.A5	05.03.2014	Lawyer Notice to the opposite party
Ex.A6	06.03.2014	Acknowledgement card
Ex.A7	09.09.2014	Acknowledgement for receiving second set of keys by the representative of   the opposite party
Ex.A8 Ex.8a	20.11.2015  28.11.2015	Lawyer Notice to the opposite party   Acknowledgement card
Ex.A9	01.02.2016	Reply Notice sent by the opposite party
Ex.A10	04.02.2016	Rejoinder Notice to the Opposite Party
Ex.A11	09.02.2016	Acknowledgement card

 

 

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

 

 

Ex.B1	-	General Power Attorney
Ex.B2	-	Tri Partite Agreement
Ex.B3	-	Sale Deed
Ex.B4	20.04.2013	Site Engineer letter for handing over key to   complainant
Ex.B5	20.04.2013	Final Payment and key handing over letter to complainant
Ex.B6	20.04.2013	Original Sale deed handing over letter to complainant
Ex.B7	-	Customer feed back form
Ex.B8	20.04.2013	EB Card Acknowledgement made by complainant
Ex.B9	20.04.2013	Sale Deed Acknowledgement made by complainant
Ex.B10	20.04.2013	Affidavit of complainant
Ex.B11	22.01.2013	Bank's Provisional Sanction letter to complainant
Ex.B12	22.06.2011	Opposite Parties Non-Mortgage letter to SBI and confirmation letter
Ex.B13	21.09.2010	Opposite Parties Original EC certificate letter to complainant and Loan processing correspondences
Ex.B14	-
Ex.B15	-
Ex.B16	25.05.2010	Extra Work Balcony & Window Grill letter to complainant
Ex.B17	16.08.2010	Modification deadline letter to complainant
Ex.B18	16.10.2010	Extra Work Request letter from complainant to Opposite Party
Ex.B19	06.02.2011	Extra Work Estimate letter from complainant
Ex.B20	06.09.2011	Opposite Parties Break and Proceed letter to Project Manger
Ex.B21	-	Modification Plan Diagram & Modification details
Ex.B22	17.09.2011	Modification confirmation letter to complainant
Ex.B23	14.12.2010	Opposite Parties  letter to complainant for confirmation of modification
Ex.B24	28.12.2010	Modification & Extra work letter to   Project Manager from Opposite Party
Ex.B25	-	Modification Plan and Extra work cost Extra Work Details and Site Plan Phase & 1
Ex.B26	-	Extra work details and site plan phase 1 & 1
Ex.B27	25.10.2011	Name Board confirmation letter to complainant
Ex.B28	13.04.2010	Tri Partite agreement sign & return letter to Complainant
Ex.B29	04.10.2010	EB form
Ex.B30	20.07.2010	Photocopy of sale deed
Ex.B31	12.08.2009	Parent document letter
Ex.B32	01.06.2009	Status approval letter to Complainant
Ex.B33	04.05.2009	Housing loan processing letter & Form 16, Form 128A
Ex.B34	-	Contact details
Ex.B35	06.03.2013	Opposite Parties Payment reminder letter to complainant
Ex.B36	05.02.2013	Payment reminder letter
Ex.B37	08.11.2012	Final Bill Payment reminder letter
Ex.B38	22.09.2012	Final Bill Payment reminder letter
Ex.B39	25.02.2012	Final Bill Payment reminder letter
Ex.B40	07.11.2011	Final Bill Payment reminder letter – Interest chargeable
Ex.B41	26.05.2011	Payment reminder letter
Ex.B42	21.04.2011	Final Bill Payment reminder letter
Ex.B43	30.09.2010	Stage wise Payment letter
Ex.B44	08.09.2010	Stage wise Payment letter
Ex.B45	10.08.2010	Payment schedule
Ex.B46	13.01.2010	Work progress letter
Ex.B47	15.10.2009	Approval copy letter and Payment due reminder letter
Ex.B48	01.04.2009	Intimation of work progress and Payment due reminder letter
Ex.B49	20.04.2013	Receipt Rs.19,91,783/- & copy of Cheque
Ex.B50	25.03.2010	Receipt Rs.10,00,000/-
Ex.B51	24.03.2010	Payment letter from Mahaveer to Opposite Party
Ex.B52	16.01.2009	Copy of cheque
Ex.B53	21.04.2014	Access card letter to Complainant
Ex.B54	30.04.2013	Car park allotment letter signed by Opposite Party to Complainant
Ex.B55	22.04.2013	Car Park Allotment letter to complainant   22.4.13,3.12.2010, 7.1.2010, 27.1.2010
Ex.B56	-	Site Plan & Basement Plan

 

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT