Tamil Nadu

StateCommission

CC/262/2017

Ravisankar Balasubramanian, - Complainant(s)

Versus

M/s,MARG Properties Ltd., - Opp.Party(s)

M/S,RALPH.V. MANOHAR& R.RAMANA

13 Mar 2023

ORDER

Date of filing : 18.04.2016

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:       Hon’ble THIRU. JUSTICE R. SUBBIAH              :    PRESIDENT

                     THIRU. R VENKATESAPERUMAL                     :   MEMBER

 

C.C. No.262/2017

DATED THE 13^TH DAY OF MARCH 2023

Ravisankar Balasubramanian,

S/o. Mr. Balasubramanian,

No.100-A/1, Ayyanar Koil Street,

Thiruvarur – 610 001.                                                                                .. Complainant.

                                                       - Versus –

1. M/s. Marg Properties Limited,

Represented by its Managing Director,

“Marg Axis”,

No.4/318, Rajiv Gandhi Salai,

Kottivakkam,

Chennai – 600 041.

 

2. The Managing Director,

M/s. Marg Properties Limited,

“Marg Axis”,

No.4/318, Rajiv Gandhi Salai,

Kottivakkam,

Chennai – 600 041.                                                                              .. Opposite parties.

 

 

Counsel for the Complainant                 : M/s. Ralph V. Manohar

 

Counsel for the Opposite party             : M/s. B.R. Shankaralingam

 

 

This complaint having come up for final hearing before us on 28.10.2022  and upon perusing the material records submitted by both parties and this Commission made the following:-

ORDER

Thiru. R VENKATESAPERUMAL, MEMBER

 

The present complaint was filed by the complainant against the opposite parties for the following reliefs:

1. To refund a sum of Rs.40,44,093/- with interest at the rate of 24% p. a. from 16.10.2012 to February 2016;
2. To pay interest at the rate of 24% for the principal amount of Rs.40,44,093/- from the date of complaint till the date of realization;
3. To pay a sum of Rs.25,00,000/- towards damages for the mental agony, hardship, harassment suffered by the complainant with cost.

 

2.         The case of the complainant, in brief, is as follows:-

The case of the complainant is that lured by the advertisements of the opposite party, the complainant had booked a residential apartment in Block-A, 8^th Floor, Apartment No.804 with a built up area of the apartment measuring 1528 sq. ft. and 487 sq. ft. of undivided share in the land in the project of the opposite party namely; ‘Savithanjali’.  Pursuant to the booking of the flat, an Agreement of Sale and a Construction Agreement was also entered between the authorized representative of the opposite parties and the complainant on 25.05.2011.   As per the Construction Agreement, the opposite parties had to deliver and handover possession of the constructed apartment/ flat by March 2013 with a grace period of 3 months.   The total cost of the apartment is Rs.49,54,879/- including club membership, corpus fund, TNEB, water and sewage charges, swimming pool, Gym, Sewerage treatment plant, lifts, car park, electricity backup legal charges.  The complainant has paid a total sum of Rs.40,44,093/- against the total cost of Rs.49,54,879/-.    Further, the opposite parties had also executed a Sale Deed in respect of the undivided share of land in favour of the complainant on 04.05.2012 registered as Doc. No.4746/2012 in the office of the Sub-Registrar at Thiruporur.  The date of handing over possession of the apartment was extended by the opposite parties for the reasons that the real estate market had crashed, the cost of raw materials had escalated, unavailability of raw materials and so on.  But the opposite parties had obtained all necessary approvals to commence the construction as early as on 05.05.2011 and the same had also been communicated to all the old customers through their emails.  The opposite parties assured to the Association during the meetings that they are paying the compensation to all the purchasers at the rate of Rs.5/- per sq. ft. from October 2013 to December 2013 and further Rs.10/- per sq. ft. from January 2014 to December 2014.  Further, it was accepted by the opposite parties to adjust the compensation amount to the complainant at the time of handing over the flat to him.   But even after several requests and demand made by the complainant either to complete the project or to refund the amount paid, the opposite parties has not come forward to comply with the demand.   The act of the opposite parties in not completing the construction works and handover the possession of the complainant’s apartment  caused great mental agony to the complainant.  Hence, the complainant sent legal notice dt.24.08.2015 to the opposite parties for which, the opposite parties sent a copy of earlier reply dt.06.06.2015 addressed to the association.   Thereafter, this complaint is filed before this Commission.

3.         Resisting the said complaint, the opposite party has filed a version by stating that the complainant has booked a flat with the opposite parties.  Due to change in the Government policies, delay in issuing statutory approvals by various government authorities including environmental clearance, unforeseen market conditions, global recession/slow down in the economy caused drastic reduction in booking of the flats which got impact very badly on the development of its project.   The Opposite party further states that there were shortage of labour, non-availability of raw materials Used for the construction activities, exorbitant increase in raw materials prices, apart from global recession and inordinate delay by the other prospective Flat buyers like the Complainant for payment of the amount committed by them under the Schedule of Payment agreed which were totally beyond the control of the Opposite Party and further the FORCE MAJEURE Clause in the sale agreement which reads as follows:

 

"The Developer/Vendor shall not be liable if they are unable to

 

complete and deliver possess on of Schedule "C" property to the Purchaser by the reason of "Act of God" or delay or denial in obtaining permission/approvals from Government agencies/authorities or Civil commotion, riots or for reasons beyond the control of the Regulations, Notification of the Government, Municipal Authority, any Court and / or for reasons beyond the control of the Developer/Vendors" The Opposite Party submits that admittedly the Complainant herein sought for cancellation of the agreement and refund of the amount as such it will only go to prove that there is no consumer jural relationship between the parties and as such the present proceedings before this Hon'ble Forum for alleged deficiency in service is not at all maintainable in the eye of  law.  Therefore, there is no deficiency in service on the part of the opposite party and hence, this complaint is liable to be dismissed.

 

4.         In order to prove the case, the complainant has filed proof affidavit and 17 documents were marked as Ex.A1 to A10.   On the side of the opposite party proof affidavit is filed but no documents were marked.

 

5.         The points for consideration before this Commission is:-

1. Whether there is any deficiency in service on the part of the opposite party as prayed for?
2. Whether the complainant is entitled for the relief as prayed for?

6.         Point No.1:-

The main submission of the complainant is that he booked a residential apartment in Block-A, 8^th Floor, Apartment No.804 with a built up area of the apartment measuring 1528 sq. ft. and 487 sq. ft. of undivided share in the land.  Pursuant to the booking of the flat, an Agreement of Sale and a Construction Agreement was also entered between the authorized representative of the opposite parties and the complainant on 25.05.2011.  Ex.A4 & Ex.A5 are the Construction Agreement, Agreement of Sale and Sale Deed respectively.  As per the Construction Agreement, the opposite parties had to deliver and handover possession of the constructed apartment/ flat by March 2013 with a grace period of 3 months.   The total cost of the apartment is Rs.49,54,879/- including club membership, corpus fund, TNEB, water and sewage charges, swimming pool, Gym, Sewerage treatment plant, lifts, car park, electricity backup legal charges.   The complainant has paid a sum of Rs.40,44,093/- as against the total cost of Rs.49,54,879/-.    Ex.A6 is the proof for payment to the opposite parties by the complainant.  Further, the opposite parties had also executed the Sale Deed in respect of the undivided share of land in favour of the complainant on 04.05.2012 registered as Doc. No.4746/2012 in the office of the Sub-Registrar at Thiruporur.  The said date of handing over possession of the apartment was extended by the opposite parties for the reasons that the real estate market had crashed, the cost of raw materials had escalated, unavailability of raw materials and so on.  But the opposite parties had obtained all necessary approvals to commence the construction as early as on 05.05.2011 and the same had also been communicated to all the old customers through their emails.  The opposite parties assured to the Association during the meetings that they are paying the compensation all the purchasers at the rate of Rs.5/- per sq. ft. from October 2013 to December 2013 and further Rs.10/- per sq. ft. from January 2014 to December 2014.  Further, it was accepted by the opposite parties to adjust the compensation amount to the complainant at the time of handing over the flat to him.   But even after several requests and demand by the complainant either to complete the project or to refund the amount paid, the opposite parties has not come forward to comply with the demand.  The act of the opposite parties in not completing the construction works and handover the possession of the complainant’s apartment  caused great mental agony to the complainant.  Hence, the complainant sent legal notice dt.24.08.2015 as per Ex.A7 to the opposite parties for which, the opposite parties sent a copy of earlier reply dt.06.06.2015 as per Ex.A8 addressed to the association.   Hence, the complainant lodged a police complaint against the opposite parties on 14.08.2015 as per Ex.A10.

7.         The opposite parties for the delay in construction and handing over of the schedule of properties had cited the reason of ‘force majeur, i.e. due to global recession, labour problem, shortage of basic materials etc., which are beyond their control.  But they have not produced any materials in support of their contentions.  Hence, it was mere bald statements made by way of defence by the opposite parties without any proof for the same.   As per Ex.A4 & Ex.A5, Construction Agreement, Agreement of Sale and Sale Deed entered between the parties, the opposite party promised to handover the flat to the complainant by March 2013 including grace period of 3 months.   Ex.A6 is the proof for the payment made to the opposite parties.  Hence, they are legally obliged to construct and handover the apartment to the complainant as per the agreed schedule found in the agreement.  Therefore failing to comply the terms as clearly found in the agreement after receipt of amount by citing irrelevant reasons clearly amounts to deficiency in service.  Thus we hold that the opposite parties had committed clear deficiency in service and unfair trade practice and we answer point No.1 in favour of the complainant and as against the opposite parties.

8.         Point No.2:-

As we have come to the conclusion that the opposite parties have committed deficiency in service and unfair trade practice the complainants should be compensated in terms of money.  Thus complainant is entitled for refund of the amount of Rs.40,44,093/- with interest at the rate of 9% p.a. from the date of complaint till realization.  Further, they are also entitled for a compensation of Rs.2,00,000/- for the mental agony and hardship suffered by him.  Cost of Rs.25,000/- is awarded to the complainants.  Thus, we answer point No.2 in favour of the complainants.

In the result, this complaint is partly allowed as follows :-

1. The opposite parties 1 & 2 are jointly and severally directed to refund a sum of Rs.40,44,093/- (Rupees Forty lakhs forty four thousand and ninety three only) with 9% interest from the date of complaint (i.e.) 18.04.2016 till realization to the complainant;
2. Compensation of Rs.2,00,000/- (Rupees Two lakhs only) for the mental agony & hardship;
3. Cost of Rs.25,000/- (Rupees Twenty five thousand only) towards litigation expenses to the complainant. 

 

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

 

List of documents filed by the complainant:-   

Ex.A1	-	Copy of layout of the Savithanjali Project showing all the Blocks and amenities
Ex.A2	05.05.2011	Copy of the proceedings of the Thiruporur  Town Panchayat to the opposite parties
Ex.A3	09.05.2011	Copy of email communication to the Customers Informing DTCP approval for the project
Ex.A4	25.05.2011	Copy of Construction Agreement
Ex.A5	25.05.2011	Copy of Agreement of Sale and Sale Deed
Ex.A6	-	Copy of payments made to Marg
Ex.A7	24.08.2015	Copy of legal notice issued by the complainant to the opposite parties and the acknowledgment card
Ex.A8	01.09.2015	Copy of reply notice issued by the opposite parties to the complainant
Ex.A9	27.07.2015	Copy of notice issued by Thiruporur Town Panchayat to the opposite parties (U/s.56 & 57 of the Town and Country Planning Act, 1971)
Ex.A10	14.08.2015	Copy of the complaint lodged by the complainant to the Commissioner of Police

 

List of documents filed by the opposite parties:-   

Nil

 

 

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

Index :  Yes/ No

 

KIR/SCDRC/Chennai/Orders/March/2023.