Tamil Nadu

StateCommission

CC/82/2013

PREMA - Complainant(s)

Versus

P. PALANIKANI - Opp.Party(s)

C.A. SHARMILA

09 Feb 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

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

                  Tmt. Dr. S.M. LATHA MAHESWARI                         :      MEMBER

 

C.C.No.82 of 2013

Wednesday, the 9^th day of February 2022

Complaint  filed on : 23.08.2013

Orders Pronounced on : 09.02.2022

 

Mrs. Prema

W/o. Mr. T. Jayavelu

L-39 Kaveri Colony

25^th Street, Anna Nagar East

Chennai- 600 102.                                                                  .. Complainant

 

- Vs -

1.  Mrs. P. Palanikani

     W/o. A.P.Chelvam

     21, Gandhi Street

     Arumbakkam

     Chennai – 600 106.                       

 

2.  Mr. A.P. Chelvam

     Proprietor

     M/s. Shree Chakra Enterprises

     21, Gandhi Street

     Arumbakkam

     Chennai – 600 106.                                                             .. Opposite Parties

 

 

    Counsel for the Complainant          : Ms. C.A. Sharmila

    Counsel for the Opposite Parties    :  M/s.J. Ravikumar & M.Nagarethinam

 

This complaint is coming before us for final hearing today, on 03.02.2022 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following :-

O R D E R

HON’BLE THIRU JUSTICE R.SUBBIAH, PRESIDENT

           This complaint has been filed by the Complainant under Section 12 & 18 of the Consumer Protection Act, 1986 (as amended) against the opposite parties claiming for directions to the opposite parties,

1. To pay a sum of Rs.20,00,000/- towards compensation and Rs.5,20,000/- towards rental dues totally to a sum of Rs.25,20,000/- with interest at 18% p.a., from the date of this complaint till the date of realization;
2. To complete and handover the possession of the constructed flats to the complainant as per the agreement dated 19.02.2009;
3. To pay damages at the rate of Rs.20,000/- per month from the date of complaint till vacant possession of the duly constructed flat is handed over to the complainant as per the terms of the agreement;

1.       The gist of the Complaint averments are as follows:   The case of the Complainant is that she had purchased a flat in 37A, New No.L 33, Ground Floor,  Anna Nagar East, Chennai – 600 102 from one Mr.A.V. Chandran vide sale deed dated 21.01.2004 registered in Document No.8297 of 2004 on the file of the Sub Registrar, Anna Nagar, Chennai.  The said flat is situated in a Block consisting of six flats, which were originally sold by the Tamil Nadu Housing Board to various allottees.  During 2008, the owners of the other five flats in the said Block approached the complainant to demolish the existing building since it was in a dilapidated condition and intended to construct a new Block of flats in the existing land by entering into a Joint Venture Agreement with the opposite parties.  On 06.06.2008, the opposite parties have issued a proposal letter to the complainant and other flat owners for construction of eight flats in the said land and also agreed upon the following terms and conditions. 

1.  Three Bedroom flats will be given to six flat owners as per the specifications mutually agreed thereon.

2.  NOC from the Housing Board

3.  Demolition of the building

4.  Approval for construction

5.  Total cost of construction

6.  All the departmental cost viz., CMDA/ Corporation, TNEB, CMWSSB

7.  Common area cost fixed by TNEB

8.  Assured to give quality construction using good quality materials

9.  Deliver the flats within a stipulated time

10. Totally Eight flats will be promoted.

Thus the owners of all the six flats including the complainant entered into a Joint Venture Agreement on 19.02.2009 with the second opposite party to demolish the existing flats and construct eight (3 BHK) flats in four floors including stilt plus mezzanine floor in the land, in accordance with the terms contained in the Agreement, whereby each of the six owners including the complainant would be given one newly constructed 3 BHK flat and the remaining two flats are to be taken by the opposite parties.  The complainant was assured with a flat in the first floor, above the stilt, in the place of the original flat purchased by her.  In the Agreement, the second opposite party had also assured that the newly constructed flats will be handed over to the owners within a period of 18 months from 19.02.2009.   In such a situation, when she was in United States, in April 2012 she received information from her cousin that the second opposite party have allotted the newly constructed flats to the other owners and the last flat situated in the rear portion of the second floor has been allotted to the complainant, which is contrary to the terms of Agreement and the assurance given by both the opposite parties.  Hence, the complainant raised her objection and sent a notice on 13.04.2012 to both the opposite parties.  But that notice was returned with an endorsement “house vacant”.  On 27.06.2012, after returning from United States, the complainant was shocked to notice that the flats have not been constructed as per the terms of Agreement.  Hence, she raised objection and demanded a copy of the sanctioned plan issued to the opposite party by the Corporation of Chennai.  After much persuasion the second opposite party submitted a copy of the sanctioned plan dated 28.09.2010 and the opposite parties had also re-allotted a flat on the first floor, in the front portion, as originally assured by them but having only two bedroom as against the assured three bed room flats.  That apart, the opposite parties put up construction for nearly 1100 sq.ft., in the area earmarked for car parking, as per the sanctioned plan.   Hence, she raised objection for the unauthorised construction in the ground floor which was earmarked as car parking area by the opposite parties, in contravention to the sanction approved plan by the Corporation of Chennai and the Joint Venture Agreement dated 19.02.2009.  In fact, as per the Agreement the opposite parties are permitted only to construct eight (3 BHK) whereas they have constructed 8 (2 BHK) and are trying to convert the sanctioned car parking area into another residential flat for themselves and thereby making a total of nine flats in the said premises.  As per the sanctioned plan, the opposite parties are permitted to construct 1.50 FSI on the land, i.e., 496.66 sq.mt. area.  However, the opposite parties have actually utilised only 1.22 FSI and constructed 404.27 sq.mts., for which the opposite parties have not given any explanation to the complainant or to the other owners.  The said act of the opposite parties is highly illegal and contrary to the terms of the Agreement.  The opposite parties cannot put up any further construction in the land over and above the sanctioned limit without obtaining the prior permission from the owner of all the flats in the building.  As per the Joint Venture Agreement, the opposite parties ought to have completed and handed over possession of the newly constructed flat to the complainant within 18 months from the date of the Joint Venture Agreement dated 19.02.2009 i.e. 19.08.2010.  However, till the date of filing of this complaint i.e. 29.10.2012, the opposite parties have handed over possession of the flats neither to the complainant nor to the existing owners, as per the terms of the Agreement or given any explanation for the same to the complainant.  Therefore, there is clear negligence and deficiency of service on the part of the complainant.  Hence, she has come forward with the present complaint for the relief stated supra .

 

2.  The said complaint was resisted by the opposite parties by filing a version stating that the complainant had suppressed the fact that the complainant have taken delivery of the flat without any demur as early as on September 2012, even prior to the filing of the present complaint.   The fact is that the actual extent of land available for construction was much less than what was agreed upon due to a land dispute with original allottee of TNEB forcing change of building plan.  The contention of the complainant that the opposite parties assured a flat in the first floor, is false.  But, a perusal of clause 3 of the Joint Venture Agreement filed by the complainant would demonstrate the falsity of the case.  It is also incorrect to state that the opposite parties assured to handover possession of the newly constructed flats within a period of 18 months from 19.02.2009.  The statement of the complainant that she was in United States during 2011-2012 is false and she is put to strict proof of the same.  The complainant was in India and was periodically inspecting the construction work and accepted delivery of flat without any demur.  The opposite party never assured to allot a flat in the first floor to the complainant.  The sanctioned plan was given only for constructing two bedroom flats and not three bed room flats.  The original plan was to construct in an area of 5515 sq.ft., whereas a land dispute had arisen due to a claim by the original allottee that a strip of land measuring  80 x 20 ft., totalling 1600 sq.ft., was not available for construction.  Hence, a revised plan was submitted to the authorities and two bedroom flats were constructed as per the sanctioned plan.  Though the complainant was well aware of all these facts, she had deliberately suppressed the same, before this Commission.  The present complaint has been filed with false allegations and there is absolutely no deficiency of service and sought for dismissal of the complaint.

3.   In order to prove the case, the complainant has filed a proof affidavit  and 7 documents were marked as Ex.A1 to A7.   On the side of the opposite parties along with proof affidavit, 8 documents were marked as Ex.B1 to B8.  The Advocate Commissioner’s Report is marked as Ex.C1.

4.  Heard the submissions made by the counsel for the complainant and perused the materials available on record. 

5.  The main allegation of the complainant is that though the builder agreed to construct eight 3 BHK flats to the six owners, in the existing land, in accordance with the terms laid down in the Joint Venture Agreement executed between the builder and the owners, subsequently constructed only eight 2 BHK flats and also have unauthorisedly converted the sanctioned car parking into another residential flat and thereby causing substantial loss, hardship and inconvenience to the complainant and other owners.  Originally, the plan was to construct in an area of 5515 sq.ft.  Since, a land dispute arose due to a claim by the original allottee, a strip of land measuring 1600 sq.ft., was not available for construction.  Hence, a revised plan was submitted to the authorities and two bed room flats were constructed as per the sanctioned plan.  It is stated in the version of the opposite parties that though the complainant was well aware of the entire facts she deliberately suppressed the same in the complaint and has come to the Court with unclean hands.    According to the counsel for the opposite parties, even before filing the complaint, the flat has been handed over to the complainant.  Further, we find that an Advocate Commissioner was appointed to inspect the flat.  He had stated in his report that there are floor deviations, setback deviations, kitchen deviation and plot coverage deviation.  During inspection, neither the complainant nor the opposite parties had the key of the apartment.  The complainant stated that the opposite parties have not handed over the flat to her and therefore she does not have the key.  But the opposite parties claim that they have handed over the flat and they do not have the key.  Therefore, the Advocate Commissioner asked the representative of the opposite parties to produce any document to prove that the flat has been handed over to the complainant but they did not produce any such documents.  Though the opposite parties have chosen to file objection to the said Advocate Commissioner’s report, they have failed to produce documentary evidence before this Court to show that the flat was handed over to the complainant.  Unless it is established through proper documentary and oral evidence by the opposite parties that the flat was handed over to the complainant, this Court cannot accept the statement of the opposite parties that they have handed over the flat to the complainant.  Further, from the material available on record, it is found that the opposite parties have originally agreed to construct 8 three bed room flats but later it was converted to 8 two bed room flats.  The explanation given by the opposite parties is that original plan was to construct in an area of 5515 sq.ft.  But, since a land dispute arose with the original allottee, a strip of land measuring 80 x 20 ft., totalling 1600 sq.ft., was not available for construction.  That is the reason why, the opposite parties have submitted a revised plan to the authorities and two bed room flats were constructed as per the revised sanctioned plan.   If it is so, the opposite parties ought to have informed the same to the complainant, prior to the commencement of the construction when the complainant is expecting 3 BHK flats.  Suddenly, the complainant cannot be taken to shock and dismay by handing over two bed room flats.  Moreover, the Commissioner’s report also clearly reveals that there is lot of violations in the construction.  Therefore, we are of the opinion that there is no proper service to the complainant by the builder.  On that ground, she is entitled to compensation for mental agony suffered by them.  Therefore, Rs.5,00,000/- [Rupees Five Lakhs] is awarded as compensation for the mental strain and stress undergone by the complainant, with an interest at the rate of 7.5%.  

 

7.  So far as the possession is concerned, it is the case of the complainant that she has not been given possession of the flat till date.  Whereas, according to the opposite parties, possession had already been handed over.  On perusal of the Advocate Commissioner’s report, we find that at the time of inspection, though opposite parties had stated that they have handed over the flat to the complainant, they have not produced any documents to show that the flat has been handed over to the complainant.  In our considered opinion, had the flat been handed over, the opposite parties would have definitely produced the documents to prove the same, before this Commission.  Therefore, non-production of such documents by the opposite parties would clearly show that the opposite parties have not handed over the flat to the complainant, so far.  Therefore, the opposite parties are also directed to hand over possession of the flat, within a period of one month.

8.  In the result, the complaint is allowed in part and the opposite parties     1 & 2 are directed jointly and severally to pay a sum of Rs.5,00,000/- as compensation for the mental agony undergone by the Complainant and also directed to hand over possession of the flat, within a period of one month.

          All the above directions shall be complied within one month from the date of receipt of copy of this order, failing which the amount mentioned above shall carry interest at the rate of 6% per annum from the date of default till the date of realisation.

 

 

S.M.LATHA MAHESWARI                                                           R.SUBBIAH

         MEMBER                                                                          PRESIDENT

 

DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

 

Ex. A1              19.01.2004            Sale Deed   

Ex. A1-A           06.06.2008            Offer letter issued by the opposite parties

Ex.A2               19.02.2009            Power of Attorney

Ex.A3               19.02.2009            Joint Venture Agreement

Ex.A4               28.09.2010            Sanctioned  plan by the Corporation

Ex.A5               13.04.2012            Letter by the complainant

Ex.A6               13.08.2012            Lawyers Notice

Ex.A7               17.08.2012            Returned cover with acknowledgement card

 

DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES

 

Ex. B1     25.08.2012            The Property Tax Assessment order            

Ex.B2      August 2012          Property tax card in the name of the complainant

Ex.B3      August 2012          Metro Water Card in the name of the complainant

Ex.B4      05.10.2009            The Housing Board addressed a letter to the    

Corporation of Chennai for demolition of the 

encroachment letter

 

Ex.B5      05.01.2010            Letter issued by the CMDA

Ex.B6      28.09.2010            The sanctioned plan

Ex.B7      14.09.2012            Copy of the Judgment in OS. No. 2515/2011

Ex.          B8      19.02.2009              Copy of Joint Venture

 

DOCUMENT MARKED AS PER THE ORDERS OF THIS COMMISSION IN

M.P. NO.10 /2015

     Ex.C1    20.06.2015             Report of the Advocate Commissioner

 

 

S.M.LATHA MAHESWARI                                                           R.SUBBIAH

         MEMBER                                                                          PRESIDENT

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/February /2022