Date of Filing 11.07.2018

                                                                                                             Date of Disposal: 12.03.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                          …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIUR.P.MURUGAN, M.Com, (ICWA), BL.,                                                                     ……MEMBER-II

RBT/CC.No.26/2024

THIS THUSDAY, THE 12^th DAY OF MARCH 2024

Mr.R.Viswanathan,  S/o.R.S.Mani,

Plot No.655, Block No.L,

New Door No.26, 27^th Street,

TNHB Colony, Korattur, Chennai 600 080.                                           ......Complainant.

                                                                                   //Vs//

1.M/s.Nakshatra Properties,

    Rep. by its Managing Partner,

    Mr.T.V.Sasimohan,

    S/o.Mr.Venkataraghavelu,

   Office at No.W-730, 1^st Floor, D Sector,

    4^th Street, Anna Nagar West Extension,

   Chennai 600 101.

2.M/s.Nakshatra Properties,

    Rep. by its Managing Partner Mr.Murugan,

    Office at No.W-730, 1^st Floor, D Sector,

    4^th Street, Anna Nagar West Extension,

   Chennai 600 101.

3.Mrs.Shobha,  W/o.T.V.Sasimohan,

   Flat No.2A, The Wave Light Wick,

   Door No.28 V.G.Panneer Nagar,

   (Mohan ram Nagar),

   Mogappair West, Chennai 37.                                                   ……Opposite parties.

Counsel for the complainant                                    : M/s.P.S.Premkumar, Advocate.

Counsel for the 3^rd opposite party                          : Mr.K.Ravi Kumar, Advocate.

Counsel for the 1^st & 2^nd opposite parties             : Exparte.

This complaint has been filed before DCDRC, Chennai (North) as CC.No.116/2018 and transferred to this commission by the administrative order in RC.No.J1/3145/2023 dated 09.11.2023 of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as RBT/CC.No.26/2024 and this complaint coming before us finally on 04.03.2024 in the presence of M/s.P.S.Premkumar, counsel for the complainant  and Mr.K.Ravi Kumar, counsel for the 3^rd opposite party and opposite parties 1 & 2 were set exparte for non appearance and upon perusing the documents and evidences of complainant’s side this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU P.MURUGAN, MEMBER-II

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in respect of construction along with a prayer to direct the opposite parties to pay a sum of Rs.10,00,000/- to carry out the pending work and 10,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.30,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. Property at Plot No.655, Block No.L, New Door No.26,27^th Street, TNHB Colony, Korattur Chennai 80 in which 50% undivided share of land along with ground floor building registered in the name of Tmt.R.Vasanth w/o the complainant vide settlement deed dated 14.07.2008 registered as document No.2323/2008 on the file of Sub-Registrar Office at Villivakkam.

3. The 1^st opposite party has approached and offered joint venture and entered into Joint Development Agreement on 09.09.2013 for construction of flat on 50-50 basis and complainant shall eligible for 50% shares and the opposite party’s share would be 50% with a condition that opposite parties to recover the cost of construction of whole Block as well as their business profit.  Accordingly complainant has executed General Power of Attorney on 30.01.2014 which is duly registered.  The construction activities began in March 2014.  Since the construction was delayed the complainant has cancelled the Power of Attorney through letter dated 05.02.2016 and communicated to opposite parties on 05.02.2016 itself.  The opposite parties have promised to the complainant and assured to complete the work and requested to execute a fresh Power of Attorney and therefore the complainant has executed a fresh deed of General Power of Attorney on 08.02.2016 and registered.  Although promised to complete the work, the opposite parties have failed to complete the work and several works left unfinished.  Therefore the complainant has caused a lawyer notice on 07.02.2018 which was returned as “door locked”.  The opposite parties have given a final inspection cum hand over report which indicates the nature of all pending work, which itself an acknowledgment of deficiency of services.  The opposite parties have not provided 20KVA Generator for power back up as per agreement.  As per agreement, the construction period was 18 months and the work should have been completed by September 2015 but the opposite parties have not completed the construction work.  The agreed rental and compensation as promised by opposite parties have not been settled as per complainant.  The work stopped in May 2015 barely 14 months of commencement of the project and it is 90% of the entire work.  The complainant has occupied his share of flat in July 2015 without disclosing the other part of the building pertains to opposite parties.  The complainant has put forth there are loss of Rs.1,00,000/-on the deficiency in roof construction and Rs.1,00,000/- loss in lobby construction and further loss of Rs.1,00,000/- in construction of lift provision adjoining bedroom.  In total the claim is arrived Rs.3,00,000/- for all these deficiency in service.  But the complainant has preferred a complaint in DCDRC and prayed that this Commission may direct the opposite parties to pay Rs.10,00,000/- to complete the pending work so as to make the apartment complex wholly habitable and comfortable.  Further to direct the opposite parties to pay a further sum of Rs.10,00,000/- towards compensation for the mental agony and hardship caused to the complainant apart from Rs.30,000/- towards litigation charges.  The claim of the complainant is contradictory in terms and shows the intent of the complaint which is clear by words.

The crux of the defence put forth by the 3^rd opposite party:-

4. On the other hand, the 3^rd opposite party namely Tmt.Shobha W/o.T.V.Sasi Mohan has filed proof affidavit in this case denying all the allegations levelled against her and submitted that she is not a party to be questioned by the complainant since she has not involved in the business agreement as executed by opposite parties 1 & 2 which is found correct on documents provided.  As such the opposite parties 1 & 2 has not responded and set exparte on 22.07.2019 after due notices which were returned un-served and also after due paper publication made in daily paper dated 26.09.2019, their defence is closed.

5. On the side of the complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A7 were submitted. The 3^rd opposite party filed proof affidavit but no documents were filed on their side.  Though sufficient opportunities was given the opposite parties they did not filed any vakalath and written version and they were called absent and set exparte on 22.07.2019 for non filing of written version within the mandatory period as per the statute.

Points for consideration:-

1)    Whether there is any deficiency in service as alleged by the complainant on the part of opposite parties?

2)    If so, to what relief the complainant is entitled?

 Point No.1&2:-

6. Although the complainant has filed complaint putting forth the deficiency in service by the opposite parties 1 & 2, it is not substantiated by the material fact whatsoever in the form of Advocate Commissioner Report or so.  In the absent of proof, deficiency could not be decided or determined.  Mere claim of money to complete pending the construction work without any basis of technical evaluation does not stand good.  In the absence of such factors, this case is does not hold good and liable to be dismissed. 

In the result the complaint is dismissed.  No order as to cost.

Dictated by the Member-II to the steno-typist, transcribed and computerized by him, corrected by the Member-II and pronounced by us in the open Commission on this 12^th day of March 2024.

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MEMBER-II                                        MEMBER-I                                              PRESIDENT

List of document filed by the complainant:-

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MEMBER-II                                              MEMBER-I                                      PRESIDENT