Date of Filling: 31.10.2005
Date of Disposal: 20.08.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU: R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CONSUMER COMPLAINT No.14/2006
Dated this Monday the 20th day of August 2018
Mr.Y.Manokaran,
S/o,S.Yovan,
No.18, F-2,Flat, Prince Palace, II Block,
Rupen Street, Thirumalai pariya Nagar,
Pudur, Ambattur,
Chennai -600 053. …..Complainant.
//Vs//
Mr.N.Jaferry Fernandez,
S/o, Nicklos Fernandez,
No.50, 3rd Street,
Thirumalai Priya Nagar,
Pudur, Ambattur,
Chennai -600 053. …..Opposite party.
This Complaint is coming on for final hearing before us on 06.08.2018 in the presence of Mr.G.Prakash, counsel for complainant and Mr.V.Raghavachari, Counsel for the opposite party and upon hearing arguments and having perused documents and evidences on the both sides, this Forum passed the following:-
ORDER
PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT
This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act, 1986 against the opposite party seeking direction to refund a sum of Rs.4,91,600/- towards loss of work in all to the complainant due to the deficiency of service on the part of the opposite party and with cost.
2.The brief facts of the complaint are as follows:-
The complainant purchased a Flat in First Floor named as F-2 Flat Block-II in plot No.18, Rupen Street, Thirumalai priya Nagar, pudur, Ambattur, Chennai -53 on 21st October 2004 from the opposite party for the total market consideration of Rs.4,81,821/- which was mutually accepted by the opposite party at the time of sale Agreement on 01.07.2004, along with oral construction agreement dated 28.08.2004. At the time of sale agreement both the complainant and opposite party agreed to construct the said flat for Rs.700/- per square feet which includes to develop the common area also. Accepting this, the complainant paid Rs.50,000/- as advance amount to the opposite party.
3. That, on 28.08.2004 at Chennai while a verbal agreement was made by the complainant with the opposite party for deciding constructional specification of the above said flat that the opposite party agreed to fix meter box cover at the place of Electricity meter for the cost of Rs.8,000/- and the opposite party agreed to fix a septic tank lid (Cover) for the cost of Rs.500/-. However the same has not been provided till this date. The opposite party agreed to connect the two water pumps with three valves for the cost of Rs.2,000/- which has not been provided till this date.
4. The opposite party agreed to provide waste water pipe line at the top of the building for the cost of Rs.3,000/- and the same has not been provided till this date. Though the opposite party agreed to provide space for 5 feet from compound wall to the building on eastern and western side, but the opposite party provided only one to one and half space which is not only violation of oral agreement but also the gross violation of CMDA rules and Regulations. Thus the opposite party cheated the complainant and gained 586 square feet of land and the same has been attached with his eastern side land.
5. The opposite party agreed to provide one more iron ladder for another over head tank for the cost of Rs.2,000/- However the same has not been provided till this date. Though the opposite party agreed to raise the height of the bore well 2 feet from ground level so as to connect the pumps for the cost of Rs.600/- but the same has not been provided till this date.
6. Though the opposite party agreed to provide a well developed parking facility for both two wheelers and four wheelers at a cost of Rs.1,89,000/- but the same has not been provided till this date. Thus the complainant incurred financial loss to the tune of Rs.50,000/-.
7. Though the opposite party to fix 2 HP first quality sub-mercible motors available in the market, in the above said bore well. But 0.5 H.P. motor only have been fixed which also the third class quality in a cheaper rate. The complainant incurred financial to the tune of Rs.20,000/-.
8. That the opposite party received Rs.7,500/- from the complainant for the payment of fee for the drainage connection to the Ambatthur Municipality. But so far the opposite party has not remitted the above said amount, this clearly shows the dereliction of duty on the part of the opposite party though he argued but till now he had not handed over the said documents with improper motivations. This sort of attitude clearly proves his fraudulent business practice.
9. Though the opposite party agreed to polish and clean the kadappa stones but so far denying to polish or clean the said stones. That the opposite party agreed to do the cement plastering work for the outside part of the compound wall though it was insisted several times by the complainant still the opposite party denying to do it.
10. Though the opposite party agreed to handover the said flat as per the measurement mentioned in the sale Agreement dated on 01.07.2004 but the opposite party violated his own agreement by giving a shortage in measurement to the extent of 31 square feet which comes to the tune of Rs.26,000/-.
11. That the opposite party agreed to construct rain water harvesting percolation pit with all necessary pipe line connections as per the building plain approved by the CMDA for the cost of Rs.5,000/-. So far this was not done despite several request by the complainant. The opposite party failed to issue the completion certificate of the above said flat as agreed by him.
12. The opposite party is evading to issue the above said certificate though the complainant paid total consideration amount. It is clearly amounts to cheating and unfair business practice.
13. The complainant jointly along with the other flat owners sent a notice to the opposite party on 20.06.2005 to rectify the above said defects and after some days, the complainant personally went to the opposite party and asked him to rectify the defects. When the complainant demanded return of money for the common place and other deficiency in work, the opposite party straightaway refused to rectify the above said deficiencies and said that he will not do anything an astonished do whatever the complainant want. The complainant caused a lawyers notice dated 19.08.2005 falling upon the opposite party rectify the above said defects or refund the money. The opposite party so far declining to send a reply notice, this itself is presumed that he himself is accepting what are all stated by the complainant in the notice.
The contention of written version of the opposite party is briefly follows:-
14. The opposite party denies each and every allegation made in the complaint except those that are specifically admitted herein. The complainant has not come before this Forum with clean hands and has suppressed several facts to file this complaint and the object of filing this complaint is to avoid the balance payment to the opposite party.
15. That the complainant approached the opposite party for the purchase of the said flat at the rate of Rs.700/- per square feet and gave an advance of Rs.50,000/- on 01.07.2004 on the same day, after discussion with the opposite party the complainant requested the opposite party to make some alteration and internal decorations and based on the request of the complainant, the rate of the square feet had been increased form Rs.700/- to Rs.875/- and accordingly the agreement had also been entered into between the opposite party and the complainant. Thereafter, the complainant approached the opposite party during 1st week of October for further up gradation of his flat and requested the opposite party to provide 1st quality tiles, granite to the kitchen table and some modifications like other flat owner. Thereafter, with the consent of the complainant the rate of the square feet has been increased from Rs.875/- to Rs.900/- accordingly the agreement has also been entered into between the parties.
16. The opposite party denies that the entire consideration has been paid to the opposite party. The complainant has to pay a sum of Rs.79,000/- to the opposite party. The complainant purchased the flat measuring to an extent of 610 square feet at the rate of Rs.900/- per square feet. Therefore, the complainant has to pay a sum of Rs.5,49,000/- towards the total consideration which is also found in clause (I) of the sale agreement. Balance amount due and payable by the complainant is Rs.86,500/- inclusive of the drainage charges of Rs.7,500/-.
17. This opposite party denies that there was an oral agreement between the complainant and the opposite party. It is unfair on the part of the complainant to say that there was an oral agreement when there is a written agreement between the parties. The complainant has suppressed the specification agreement which has been given to the Bank for the purpose of obtaining the loan.
18. The flat had been constructed in accordance with the agreement and specification and the complainant has been in possession and enjoyment of the house for over one year. The compound wall is already constructed and plastered inside the compound wall. Further the flat was constructed according to the plan approval, the specification and the agreement between the parties. All the flat owners are given 405 square feet of undivided share and not even a single square feet is swallowed by the opposite party as stated by the complainant. Even the basic arithmetic had not been worked before lodging the complaint before this Forum.
19. That on 11.03.2005 the civil engineer inspected the flat and gave a report that the construction is over and ready for occupation. This would clearly prove that the construction was completed on time. The complainant had not produced any letter or notice complaining of delay in the completion of work by the opposite party. The opposite party submits that clause (10) of the sale agreement clearly reveals that the complainant has to pay the drainage charges apart from the sale consideration. Now the complainant claims that the total sale consideration includes the drainage charges and refuses to pay the drainage charges. The opposite party has already paid the drainage charges to the local body/Municipality. Since the complainant has not paid the entire sale consideration and the drainage charges, the opposite party had detained the drainage bill and the same will be handed over to the opposite party after receiving the entire sale consideration together with interest at 24% per annum and drainage charges. Normally no builder would hand over possession of the property unless the entire amount is paid. The opposite party reposed faith in the complainant and had handed over possession while substantial amounts are due from them. The action of the complainant is lacking in bonafide and fraudulent.
20. The bore well is erected in the common area and no one can have any specific right over the common area individually. Common area is meant for all the flat owners and nobody can seek permission to enjoy the common from the owners and hence the question of obtaining the consent would not arise. The opposite party has raised the parapet wall only to safeguard the motor and if the complainant feels that the parapet wall causes any inconvenience, it is always open to him to remove the parapet wall.
21. The opposite party submits that the guarantee certificate for one year and issuing no due certificate will arise only after the entire amount is paid by the complainant.
22. The compound wall, upstairs wall, balcony wall were constructed with the 1st quality bricks and the other materials. Further the main wooden door is fixed with 1st quality of teak wood as specified in the specification.
23. It is totally false and misleading this Honble Forum that the common area is sold to the complainant. The opposite party never sold the common area to the complainant. No builder has a right to sell the common area and even an ordinary prudent man would know this principle.
24. That on 20.06.2005 the complainant along with other flat owners, gave a representation to the opposite party to carry out certain work. At that time, the opposite party insisted the complainant to pay the balance amount and the complainant asked the opposite party to carry out at least two works specified in the representation. The opposite party completed three works on 09.07.2005 and further requested the flat owners to pay the balance amount. All the flat owners refused to pay the balance amount and further informed that the amount already paid is sufficient.
25. The opposite party is taking all effective steps to recover the balance amount from the complainant. Only to prevent the opposite party from filling the civil suit for recovery of balance amount, the present consumer case is filed. Hence this complaint is liable to be dismissed.
26. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A16 were marked. While so, on the side of the opposite party, the proof affidavit is filed and Exhibit B1to B17 are marked on their side.
27. At this juncture, the points for determination before this Forum are as follows:-
- Whether there is any deficiency in service on the side of the opposite party as alleged in the complaint?
2. Whether the complainant is entitled for any relief as prayed for?
28. Written arguments filed and oral arguments also adduced on both sides.
Point No:1:-
29. As per the averments of the complaint, the opposite party has not constructed the alleged flat as per the construction agreement and it is learnt that there are so many defects in the construction and thereby the complainant has incurred much financial loss and suffered mental agony because of the deficiency of service committed on the side of the opposite party.
30. On the other hand, it is contended by the opposite party that the allegations made by the complainant are all denied and in fact the complainant has to pay a sum of Rs.86,500/-as a balance amount towards the full consideration as per the agreement and thereby the complainant is a defaulter and because of the opposite party had sought for the balance amount this complaint has been filed with vexatious reasons and demands. Moreover, there is no defect has averred by the complainant and the opposite party completed the construction as per the construction agreement and handed over the flat to the complainant who is having no objection at the time by the complainant and therefore there is no deficiency of service as alleged by the complainant.
31. At the outset, it goes without saying that, the complainant is having bounden duty to prove the allegations made in the complaint by means of concrete and acceptable evidence. First of all, on careful perusal of the evidence adduced by the complainant by means of proof Affidavit, it is seen that the complainant had purchased a flat in first Floor as F- 2 in the plot No.18, Rupen Street, Thirumalai Priya Nagar, Pudur, Ambatthur, Chennai -53 on 21.10.2004 for the total consideration of Rs.4,81,821/- which was mutually accepted at the time execution of sale agreement on 24.12.2004 along with the oral consideration agreement dated 28.08.2004. The sale agreement is marked as Ex.A1 and sale deed is marked as Ex.A2 and the approved plan site and the building plan approval are marked as Ex.A3 and Ex.A4 respectively and Ex.A5 is advance receipt for payment of Rs.50,000/- on 01.07.2004.
32. It is further stated that the opposite party has not constructed and provided the flat as per the sale and construction agreement regarding the factors of fixing meter box cover, two water pumps with three valves, waste water pipe line, compound wall to the building on eastern and western side, fix the grill and frame in a proper manner etc. and thereby there are so many defects in the construction and also failed to give one year guarantee agreement and the no due certificate and completion certificate which clearly reveals facts that the opposite party had committed deficiency of service. Then the complainant along with another flat owners sent a letter Ex.A6 to the opposite party and the same was received by the opposite party through Ex.A7 even than the opposite party has not come forward to rectify the defects and therefore the complainant issued ExA8 legal notice to the opposite party and Ex.A9 acknowledgement card for the receipt of the same by the opposite party. The letter sent by the opposite party along with the receipt for showing an expenses and balance are marked as Ex.A10 and Ex.A11 respectively and the letter from CMDA, Chennai to the commissioner of Ambattur Municipality is marked as Ex.A12 and the complaint preferred against the opposite party to the commissioner of police, Egmore and inspector of police Ambattur police station which are marked as Ex.A15 and Ex.A14 respectively and the Ex.A13 and Ex.A16 are of the documents in connection with the action taken by the Ambattur Police station. It is further seen that even after taking all steps the opposite party has not come forward to comply the demand of the complainant and therefore the complainant filed this complaint.
33. While being so, on going through the evidence of the opposite party with due care and caution, it is stated that on 01.07.2004 while entered into the sale agreement with the consent of the complainant at the rate of square feet has been increased from Rs.700/- to Rs.900/-. Since the complainant requested to provide first quality of materials and thereby both of them entered into the sale agreement and the power of attorney of the opposite party with the owner of the land are marked as Ex.B1 and Ex.B2 respectively. It is further stated that the opposite party had properly obtained the approval from Ambattur Municipality Ex.B3 proceedings of the Ambattur Municipality and Ex.B4 is the planning permit issued by the Ambattur Municipality, similarly Ex.B5(s) is the payment of receipt for the payment of drainage scheme.
34. On further perusal, it is learnt that it is not correct to say that there is only oral construction agreement and in fact Ex.B6(s) the construction details has been issued to the complainant and completion certificate submitted to the Manager to the State bank of India, Ambattur Branch for Rs.5,62,000/- as Ex.B7 and acknowledgement for the same is marked as Ex.B8(s). In furtherance, it is learnt that the legal notice Ex.B9(s) issued to the complainant and reply notice which is marked as Ex.B10 (s) sent by the complainant. It is further seen from the evidence of the opposite party that in fact the flat was constructed in accordance with the agreement and specification and the complainant has been in possession and enjoyment of the house for over one year and on 11.03.2015 the civil engineer inspected the flat and gave a report that the construction is over and ready for occupation (Ex.B7).
35. Similarly all the provisions have been completed as per the sale and construction agreement and the guarantee certificate and no due certificate will arise only after the entire amount is paid by the complainant. Such being so, from the evidence of the opposite party the complainant is a defaulter which reveals that in respect of taking all effective steps to recover the Balance amount the complainant has not come forward to pay the balance amount even then he was already taking over the possession of the alleged flat. Then the opposite party preferred the FIR which is marked as Ex.B15 and deed agreement between the flat owners are marked as Ex.B11 and Ex.B14 and deed of compromise is marked as Ex.B16. After filing of this complaint, on the petition filed by the complainant CMP No.33/2014 the Advocate Commissioner was appointed by this Forum and in continuation the Advocate Commissioner has filed the report along with the Engineers Reports which is marked as Ex.C1.
36. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that it is an admitted fact that the sale deed Ex.A1 and Ex.A2 sale agreement have been executed between the parties herein On further perusal as rightly pointed out by the complainant, the sale agreement is the including construction agreement without any specification of construction. Whereas ExB6 reveals the facts of specification of construction having details of construction has been issued. Furthermore, it is not disputed that Ex.B7 is the completion certificate issued by the Civil Engineer submitted to the Manager of the State Bank of India, Ambattur Branch whom sanction the loan to the complainant for a sum of Rs. 5,62,000/- for the purchase of the alleged flat.
37. At this point of time, on the side of the opposite party, the serious contention raised that the complainant is a defaulter because of not come forward to pay the balance amount of Rs.86,500 /-towards full consideration as per sale agreement. Regarding this fact, on going through the facts adduced on both side, since it is not disputed that after the completion of the alleged flat and the same was handed over to the complainant by the opposite party. It is a common knowledge and practice that without paying the balance amount the builder cannot be handed over the possession which is a normal practice in the field of Real Estates. While so, it is stated that the opposite party handed over the alleged flat pending the balance amount towards the admitted consideration. Therefore the reason stated for the same by the side of the opposite party seems to be not genuine. Moreover, there is no proof of document to show that there is a balance of said amount from the complainant to the opposite party. Hence, such plea taken by the opposite party that the complainant is not a defaulter herein is rejected.
38. The next point to be taken into consideration is that, whether the complainant has proved the allegations that there are so many defects in the constructions and the provisions not provided by the opposite party as per the sale agreement. For which on careful perusal of the evidence adduced by the complainant, it is needless to say that it is the foremost duty of the complainant to prove all the damages by means of qualified Civil Engineer report and the same should have filed along with the complaint. But the complainant had failed to do so.
39. While being so, after filing of this complaint, on taking steps by the complainant in CMP.No.33/2014 the Advocate Commissioner Appointed and he has filed the report along with the report of the qualified licensed Surveyor, which is marked as Ex.C1 In respect of Ex.C1 objection filed by the opposite party. In such circumstances on careful perusal of the Ex.C1 report all the defects has been noted which are pertaining for providing provision only for the outside structure. They will be affected inconvenience all the flat owners including the complainant herein. It is averred in the complaint that the weather coarse is not provided. As per the Ex.C1, the said certain defect has been completed by the opposite party. Yet another allegation placed before this Forum is that the Additional construction made for the area 18 9 x11 6 = 215.62 square feet in second floor. If it is so, it should be cleared only by the authority who is given approval for the construction of building in the alleged area.
40. Such being so, the objection raised by the opposite party against the report Ex.C1 is no way strengthen the case of the opposite party since the objections raised in respect of the provision Bore well, Septic Tank has been constructed in the common place which is a correct one and other objection are all devoid of merits. At the outset, during the pendency of this case Suit is no way affect this complaint since the complaint before this Forum is for alternative relief.
41. In the light of the above fact and circumstances, and the facts narrated in Ex.C1, it is crystal clear that there is some lacking in the construction of the flat and there are so many provision found in the common area in the premises of the flat which clearly caused in convince that the complainant is one of the flat owners of this said premises. Therefore it is crystal clear that the opposite party committed deficiency of service to the complainant. Thus the point No.1 is answered accordingly.
Point No.2:-
42. Regarding this point, on careful perusal of the complaint, the complainant has sought for relief under para 35 A to D towards loss of work in all amount and financial restricted to claim of Rs.4,91,600/- towards compensation for causing financial loss and mental agony. In such circumstances, though the duty of the complainant to prove the alleged amount sought for compensation pertaining to the damages or defects found in the flat and expenses to be incurred for rectification and for the same the complainant filed estimation or the expenses already incurred by him by means of expert Civil Engineer but no such proof on the side of the complainant. Even then, this forum comes to conclusion for the amount claimed by the complainant but so no such correct estimation or documents has not been filed on the side of the complainant. At this point of time, having rich experience of this Forum and the defects noted the Ex.C1, this Forum comes to conclusion it is very fair and genuine to order for sum of Rs.1,50,000/- in total towards compensation for causing financial loss and mental agony due to the deficiency of service on the part of the opposite party with reasonable cost. Thus the point No.2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the opposite party is directed to pay a sum of Rs.1,50,000/-(Rupees One lakhs Fifty thousand only) towards compensation in all to the complainant for causing financial loss and mental agony due to the deficiency of service on the part of the opposite party and also to pay cost of Rs.5,000/- (Rupees Five thousand only) towards litigation expenses.
The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.
Dictated by the President to the Steno-Typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum of this 20th August 2018.
-Sd- -Sd-
MEMBER PRESIDENT.
List of documents filed for the complainant:-
Ex.A1 | 24.02.2004 | Sale agreement | Xerox |
Ex.A2 | 01.10.2004 | Sale deed | Xerox |
Ex.A3 | 22.03.2004 | Approved plan | Xerox |
Ex.A4 | 20.09.2004 | Plan approval (building) | Xerox |
Ex.A5 | 19.03.2004 | Advance receipt | Xerox |
Ex.A6 | 20.06.2005 | Joint notice | Xerox |
Ex.A7 | 25.06.2005 | Acknowledgement card. | Xerox |
Ex.A8 | 19.08.2005 | Legal notice | Xerox |
Ex.A9 | 27.08.2005 | Acknowledgement card. | Xerox |
Ex.A10 | | Receipt by the opposite party | Xerox |
Ex.A11 | | Letter by opposite party | Xerox |
Ex.A12 | 02.04.2007 | CMDA letter | Xerox |
Ex.A13 | 08.08.2009 | Letter of S.I. Ambattur. | Xerox |
Ex.A14 | 02.01.2006 | Explanation letter | Xerox |
Ex.A15 | | Complainant letter to the opposite party | Xerox |
Ex.A16 | | Calling letter | Xerox |
List of document of the opposite party:-
Ex.B1 | 10.02.2003 | Power of attorney | Xerox |
Ex.B2 | 10.02.2003 | Power of attorney | Xerox |
Ex.B3 | 26.03.2004 | Proceedings of Ambattur municipality | Xerox |
Ex.B4 | 05.04.2004 | Planning permit | Xerox |
Ex.B5 | 20.09.2004 | Drainage payment receipt(s) | Xerox |
Ex.B6 | | Model specification agreement | Xerox |
Ex.B7 | 11.03.2005 | Completion letter | Xerox |
Ex.B8 | | Acknowledgement of completion of work | Xerox |
Ex.B9 | 24.03.2006 | Legal notice to the complainant(s) | Xerox |
Ex.B10 | 01.04.2006 | Reply notice by the complainant(s) | Xerox |
Ex.B11 | 30.07.2006 | Deed of agreement (s) | Xerox |
Ex.B12 | 12.08.2006 | Deed of agreement (s) | Xerox |
Ex.B13 | 27.08.2006 | Deed of agreement (s) | Xerox |
Ex.B14 | 20.11.2006 | Deed of agreement (s) | Xerox |
Ex.B15 | 25.09.2007 | FIR | Xerox |
Ex.B16 | 17.12.2007 | Deed of compromise | Xerox |
Ex.B17 | | O.S.No.393/2009 on the file of the District Munsif Court. Amabttur. | Xerox |
List of document filed by the Advocate Commissioner:-
Ex.C1 | 24.02.2015 | Advocate Commissioner Report. | Original |
-Sd- -Sd-
MEMBER PRESIDENT
