Tamil Nadu

North Chennai

CC/119/2015

M.Ashok Chand - Complainant(s)

Versus

Muhammed Rafee, Proprietor, M/s.Great Madras Builders - Opp.Party(s)

vijayaragharan

08 May 2017

ORDER

 

                                                            Complaint presented on:  26.06.2015

                                                               Order pronounced on:  08.05.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

MONDAY THE 08^th DAY OF MAY 2017

 

C.C.NO.119/2015

 

M.Ashok Chand,

S/o Mothilal,

F:3, Block, A. 1 Floor,

G.M.B’s Beehive Apartment,

10, Rathnavel Pandian Street,

Golden George Nagar,

Mugappair, Chennai – 600 107.  

                                                                                     ….. Complainant

 

..Vs..

Muhammed Rafee,

Proprietor,

M/s. Great Madras Builders, MSM Towers,

No.3. Yadaval Street,

Padi, Chennai – 600 050

 

.....Opposite Party

Date of complaint                                 : 12.08.2015

Counsel for Complainant                     : M/s.R.Vijayaraghaven, S.Annakkodi,

                                                                   N.Sureshkumar

 

Counsel for Opposite Party                    : M/s.Mr.M.Lakshmipathi &

                                                                    K.Mahendran

                            

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the Opposite Party to register the sale deed in respect of UDS and also to pay compensation for mental agony with cost of the Complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant expressed his willingness to purchase a flat in GMB’s Beehive Apartments, No.10.Rathnavel Pandian Street, Golden George Nagar, Mugappair, and Chennai.600 107. The Complainant entered into a Memorandum of Agreement dated 18.05.2012 for construction in respect of 3 Bedroom Flat. On the basis of representation and promise made by the Respondent, the Complainant entered into a Memorandum of Agreement dated 18.05.2012 for construction of 3 bedroom flat having plinth area of 1400 sq.ft in the 1^st floor of G.M.B’s Beehive Apartment including common area, open space together with covered Car Parking along with 695 sq.ft. of the undivided share of the land in Plot No,10. Rathnavel Pandian Street, Golden George Nagar, Chennai. 600 107 out of the 3552 sq.ft area. He also paid the entire sale consideration of land and the cost of construction. The respondent also acknowledged the entire sale consideration vide his letter dated 12.10.2013.  The respondent also handed over possession of the flat to the Complainant by letter of possession dated 07.04.2014.

          2. The respondent agreed to register the undivided share   of land of 695 sq.ft in the name of the Complainant by October, 2013. Again, in the letter of handing over possession dated 07.04.2014, the respondent assured to register the Sale deed in respect of UDS in favour of the Complainant before the end of May 2014. However, till today, the respondent did not execute the Sale Deed in respect of the UDS.  The Complainant suspecting the bonafide of the respondent, he verified by applying for Encumbrance Certificate and found that the Opposite Party  has already sold all the UDS of land. The Opposite Party informed the Complainant that he was given power to the extent of 1647 sq.ft out of 3552 sq.ft in plot No.10. Rathnavel Pandian Street, Golden George Nagar  by the owner of the property. Hence he along with the owner of the property S.Sukumar will execute the Sale Deed in respect of UDS in favour of the Complainant. When the Complainant asked the owner Sukumar, he informed the Complainant that it is the burden of the respondent to execute the Sale Deed and he won’t execute the Sale deed in respect of UDS.

          3. The Complainant submits that the respondent herein has assured and also agreed that the following amenities viz.,

          1. TERRACE: Weathering course and Terra cotta tiles are not

             provided.

 

          2. Terrace Garden and child play area not constructed

          3. A/C-GYM:No Gym was constructed nor its equipments were

              Provided as mentioned in the Agreement

 

          4. SECURITY: Burglar alarm and video doors were not provided as

              mentioned in the Agreement.

 

          5. INVERTER: Inverter was not provided in our flat as mentioned by

              the Builder.

 

          4. The Opposite Party agreed in the CONSTRUCTION AGREEMENT and having received the entire sale consideration from the Complainant, he is legally bound to provide the above said amenities. The respondent handed over possession to the Complainant without providing the said amenities and it is a clear case of not only the Deficiency in Service, but also unfair trade practice. The Complainant submits that on account of the unfair trade practices he was put to untold suffering and hardship. The Opposite Party failed to registered the UDS land by way of sale deed to the Complainant proves that he had committed unfair trade practice and deficiency in service and due to that caused mental agony to the Complainant and hence he prays to direct the Opposite Party to register the sale deed in respect of UDS and also to pay compensation for mental agony with cost of the Complaint.

5. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          This Opposite Party submits that one Mr.Sukumar and his wife K.Kavitha entered into a Joint Venture Construction dated 21.07.2011 with the Opposite Party by virtue of that agreement for 1647 sq.ft of land was permitted by the land owner in favour of this Opposite Party to put up constructions along with remaining 1647 sq.ft of land totally 3552 sq.ft belongs to the said Sukumar and his wife. The said land owner executed a Deed of Power dated 01.08.2011 registered as Document No.776 of 2011 on the file of S.R.O. Konnur empowering the Opposite Party to sell the extent of 1647 sq.ft of UDS of land and he constructed flats to 3^rd parties. The Complainant approached the Opposite Party with offer to purchase a flat in the land of 695 sq.ft. of UDS with a plinth area of 1120 sq.ft and common area of 280 sq.ft total in area of 1400 sq.ft fully described in the “C” Schedule in the Memorandum of Agreement for construction dated 18.05.2012.  The Opposite Party requested the Complainant to get the Sale Deed registered in his name in respect of 695 sq.ft of UDS and the Complainant has not come forward to get the Sale Deed, registered in his name. After the construction was over, the Complainant willing to take possession of the flat even without the Sale Deed in his favour in respect of UDS of land and compelled the Opposite Party to hand over after possession of the flat. On           07.04.2014 the Opposite Party had handed over the possession of the flat. The course of construction the Complainant requested the Opposite Party to effect changes in the kitchen, store room, entire wall files fixing and finishing safety grillages, kitchen slab, re-concentrating and finishing etc. and other extra works for a total cost of RS.4,44,830/- the said additional work is not covered under the construction Agreement.  The Complainant agreed to pay the said sum of Rs.4,44,830/- to the Opposite Party and on such payment the Complainant agreed to get the sale deed registered in his favour. Of course, the Complainant has paid that amount of Rs.95,00,000/- at any point of time the Complainant was even ready and willing to perform his part of construct by getting the sale deed registered in his favour in respect of UDS in the land. There was a mediation in the presence Mr.Vinod Chand Jain and Mr.Manohar at Thiruvallur on 19.08.2013 and in the said meeting the Complainant agreed to pay a sum of Rs.98,90,000/- towards the additional work/alteration to the Opposite Party and also to do further additional work of a sum of Rs.54,830/-. The Complainant is liable to pay a sum of Rs.4,44,830/- which is evidenced by his letter dated 19.08.2013.The Complainant has not filed entire letter dated 07.04.2014 namely possession letter which is filed as document No.8 along with this Complaint. He has avoided to file the page No.2 of this letter, while taking possession, the Complainant has not imposed any condition to get the sale deed registered in his favour, but on the other hand the Opposite Party has mentioned the payment of Rs.3,90,000/- payable by the Complainant to the Opposite Party. Since the entire construction were over during the middle of 2013 without the consent or knowledge of the Opposite Party the land owners have unilaterally cancelled the power executed in favour of the Opposite Party on 09.10.2013. Therefore, this Opposite Party is not in a position to execute the sale deed in favour of the Complainant. The Complaint is not maintainable and the same is barred for non-joinder of necessary parties viz. Sukumar and his wife Kavitha being the owners of the land. The Complainant requiring the sale deed cannot be granted by this Hon’ble Forum, since it comes under the Civil Law only with a view to avoid the payments of Rs.4,44,830/- the present Complaint has been filed. There is no cause of action for the Complaint and hence this Opposite Party prays to dismiss the Complaint with costs.

6. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

7. POINT NO :1 

          The admitted facts are that the Complainant purchased a flat from the Opposite Party  measuring 1400 sq.ft in the first floor of G.M.B’s Beehive Apartment including common area with covered car parking along with 695 sq.ft  undivided share  land in flat No.10 Rathnavel Pandian Street, Golden George Nagar, Mugappair, Chennai 107 and the Complainant paid the entire sale consideration and the Opposite Party also handed over possession of the flat by a possession letter dated 07.04.2014 to the Complainant and executed Ex.A4 is the construction agreement and Ex.A8 is the handing over  possession letter.

8. The grievances of the Complainant is that the Opposite Party had committed deficiencies in respect of not providing weathering course and Terra Cotta Tiles at terrace garden and child area and gym not constructed, Burglar Alarm and Video doors and inverter was not provided in the building and further 695 sq.ft UDS land was not registered in favour of the Complainant and thereby committed Deficiency in Service.

          9. The Opposite Party is the power of attorney holder of the Mr.Sugumar and M/s S.Kavitha and Ex.A1 is the memorandum of joint venture agreement entered between them and Ex.A2 is the power of attorney granted by them in favour of the Opposite Party to execute the project and by virtue of those documents the Opposite Party entered Ex.A4 agreement for construction with the Complainant. The Opposite Party also received the payment from the Complainant and also handed over the possession of the flat to the Complainant under the Ex.A8 letter dated 07.04.2014. The Ex.A5 is the copy of the unexecuted sale deed to convey 695 sq.ft UDS land in favour of the Complainant by the Opposite Party. Ex.A6 confirmation letter dated 12.10.2013 executed by the Opposite Party to the Complainant that he was duly paid the entire amount to him and he assured to register UDS 695 sq.ft by the end of October 2013. However, as per the said letter he did not executive the sale deed in respect of the UDS to the Complainant. Ex.A7 is the encumbrance certificate in respect of the project site land of the Opposite Party. As per that encumbrance certificate that there is no land remains to execute UDS in favour of the Complainant. The Complainant also issued legal notice Ex.A13 to the Opposite Party to execute the UDS and even after that he did not do the same. Therefore, the Opposite Party’s failure to execute the sale deed in respect of the UDS 695 sq.ft to the Complainant as admitted by him under the Ex.A5 is the clear case of deficiencies committed on the part of the Opposite Party.

          10. Even though the Complainant requested the Opposite Party to execute the UDS he did not do the same. However, the Complainant alleged several other deficiencies in the Complaint that gym, security, inverters and Terra Cotta Tiles were not provided by the Opposite Party for the same no proof is available. The Opposite Party would contend that he had constructed at the request of the Complainant  certain changes in kitchen store room and other etc works the Complainant has to pay  a cost of Rs.4,44,830/- for the said additional work which is not covered under the construction agreement. The Complainant also acknowledging for additional bill of Rs.3,90,000/- to pay to the Opposite Party under Ex.B3. Whatever the case may be, having the Opposite Party received entire amount towards the value of the UDS land, he has to execute the sale deed for UDS as assured under Ex.A6. However there is no UDS space is available as per encumbrance certificate marked. Therefore we hold that the Opposite Party has not committed Deficiency in Service in not executing the sale deed in respect of the UDS land to an extent of 695 sq.ft.

11. POINT NO:2

          The Opposite Party  as per Ex.A4  memorandum of construction of agreement agree to give  695sq ft. UDS to the Complainant as shown in schedule B of the document. In pursuance of the same Ex.A5 sale deed was also made ready to execute and register the 695 sq ft. of UDS land  by the Opposite Party in favour of the Complainant. However neither the Opposite Party executed the said sale deed nor registered the UDS in favour of the Complainant. Therefore, it would be appropriate to direct the Opposite Party to register the sale deed in respect of 695 sq ft. UDS in favour of the Complainant within a stipulated time frame. Further for such deficiency the Opposite Party can also be directed to pay a compensation of Rs.1,00,000/- to the Complainant and also a sum of  Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to execute and register the sale deed in respect of the undivided share land measuring 695 sq.ft within three months from the date of this order in favour of the Complainant and also to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for Deficiency in Service and mental agony to the Complainant, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. The Complaint in respect of the other relief is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.     

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 08^th day of May 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1  Memorandum of Joint Venture Agreement dated 21.07.2011 between

            Great Madras Builders and Sukumar.

 

Ex.A2  General Power of Attorney dated 01.08.2011 by Sukumar to Mohd. Rafee.

 

Ex.A3  Letter dated 23.04.2012 from Great Madras Builders to Ashokchand

 

Ex.A4  Memorandum of Agreement for constructions dated 18.05.2012 between

            Ashokchand and Mohd. Rafee

 

Ex.A5  Sale Deed dated 07.10.2013 between Sukumar and Kavitha owners thro

            Gen.Power of attorney Mohd. Rafee to Purchase Ashok Chand.

 

Ex.A6  Confirmation letter dated 12.10.2013 from Mohd.Reafee to Ashokchand

            giving assurance that UDS will be registered by the end of Oct. 2013 (695

            sq.ft)

 

Ex.A7  EC dt. 18.10.2013 from 01.01.2010 to 17.10.2013 in the name of Sukumar,

            Kavitha, Mohhd, Rafee (agent) and Arun Kumar, Regn. UDS of 483 sq.ft.

 

Ex.A8   Letter dated 07.04.2014 possession letter from Great Madras Builders to

             Ashokchand.

 

Ex.A9   Letter dated 21.07.2014 from S.Sukumar to A.Mohd.Rafee reg.

             cancellation of power.

 

Ex.A10 Complaint dated 27.09.2014 from Ashish chand S/o Ashokchand to

             Inspector of Police, Mogapair East reg. Non Registration of UDS of land.

 

Ex.A11 C.S.R dated 27.09.2014 by Inspector of police Mogappair East.

 

Ex.A12 Letter dated 10.10.2014 from Mohd. Rafee to S.Sukumar reg. joint venture

              agreement with Ashokchand.

 

Ex.A13 Letter dated 19.11.2014 from R.Vijayaraghavan, Advocate to Mohd.

             Rafee

 

Ex.A14 Letter dated 03.12.2014 from Great Madras Builders to Ashokchand reg.

             reply to lawyers notice dated 19.11.2014.

 

Ex.A15 Lr.Dt. 09.01.2015 form Ashokchand to Commissioner of Police reg.

             Complaint about Mohd. Rafee.

 

Ex.A16 Police notice dated 22.01.2015 by Sl. of police CCB, Ashokchand

             reg.conducting of enquiry

 

Ex.A17 EC. Dt.23.01.2015 from 01.01.2009 to 22.01.2015 cancellation of power.

 

Ex.A18 Letter dt. 28.01.2015 from Ashokchand to SI. of police, CCB Team III

              reg. compensation claimed by Ashokchand and non registration of UDS.

 

 

Ex.A19 Police notice dated 11.02.2015 CCB from Naseruddin. SI. of Police,

             CCB. to Ashokchand reg. demanding of additional cost by Mohd. Rafee.

 

Ex.A20 Order  from Judicial Magistrate Court. Ambattur dated 14.05.2015 to

             Commissioner of Police, Vepery.reg. forwarding of Complaint

             dt.09.01.2015 to register the Complaint and file the final report within 2

             months.

 

 

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY :

 

Ex.B1 dated  18.05.2012                  Memorandum of Agreement for Construction

 

Ex.B2 dated 07.04.2014                   Possession Letter

 

Ex.B3 dated 19.08.2013                   Great Madras Builders

 

 

 

MEMBER – II                                                               PRESIDENT