Tamil Nadu

South Chennai

CC/408/2004

M/s.Solomon Selvaraj - Complainant(s)

Versus

P.Ravichandran - Opp.Party(s)

K.Moorthy

05 Jul 2017

ORDER

                                                                        Date of Filing :   21.05.2004

                                                                        Date of Order :   05.07.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 408/2004

WEDNESDAY THIS  5^TH   DAY OF JULY 2017

 

Mr. Solomon Selvaraj & Mrs. Sujatha Jayapriya,

FR4, Sai Ayshwarya Enclave,

No.2, II Main Road,

Telephone Colony,

Adambakkam,

Chennai 600 088.                                             .. Complainant

                                        ..Vs..

 

1. Mr. P. Ravichandran,

Proprietor,

Lokesh Marvel Constructions,

No.2, II Main Road,

Telephone Colony,

Adambakkam,

Chennai 600 088.

 

2. The ICICI Home Finance Co. Ltd.,

Rep by Mr. Sunil Rahokale,

ICICI Bank Towers,

Bandra-Kurla Complex,

Mumbai 400 051.

India.

 

3. M/s. Timberton Services Pvt. Ltd.,

No.14/2, Nandanam Extn.,

1^st Street, Nandanam,

Chennai 600 036.                                         .. Opposite parties.

 

Counsel for Complainants         :    M/s.  K.Moorthy, & other

Counsel for opposite party-1     :    M/s. S.Raghunathan & others.  

Counsel for opposite party-2     :   M/s. BS & Associates.

For the 3^rd opposite party          :   Exparte.

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to rectify the defects as per letter dated  12.11.2003 of the complainant and also to pay a sum of Rs.2,86,338/- towards 30% of the common area at the rate of 1250 per sq. ft. and also to  reimburse the sum of Rs.1500/- towards property tax and a sum of Rs.8,50,877.50 towards completion certificate and a sum of Rs.50,000/- towards extra registration charges and Rs.3,00,000/- towards mental agony and to demolish the unauthorized office space in the basement area  with cost of the complaint.

 1. The averment of the complaint in brief are as follows:

         The complainants submit that  they have purchased an apartment in “Sai Ayshwarya Enclave’ from the opposite party; after seeing the brochure; website and newspapers entered into an agreement and thereafter the complainant executed an agreement  of construction on 28.1.2003 for construction of the flat of an area of 850 sq. ft. including the common area in the ground floor of the building at the rate of 1380 per sq. ft. and total cost of construction is Rs.14,00,000/-.  The complainants further state that as per the approved plan of the CMDA, the plan had originally ground floor and first floor only, with four flats whereas the present building had 18 flats with ground floor and four floors.  Hence the 1^st  opposite party had applied for regularization of the entire building as per the regularization scheme offered by the CMDA.   The CMDA vide its letter dated 11.10.2002 issued notice to the 1^st opposite party  and had demanded a huge amounts to be paid for the deviations committed in the building by the 1^st opposite party.    The 1^st opposite party has not provided the amenities stated in the brochure and advertisement. 

2.     The opposite party has constructed an office space in the basement area unauthorizely.  The complainants submit that the flat is incomplete and the following have not been provided by the opposite party: -

1.  Building plan copy has not been provided nor indemnity bond in safeguarding the flat from demolition by CMDA due to the deviations committed in the building has been provided to the complainants.

2. Covered car park or two wheeler park have not been provided.

3. No common areas apart from terrace have been provided in the premises, for which 30% of the total payment has been taken.

4. No amenities such as covered car park, lifts, gymnasium etc. have  been provided within the premises.

5. Metro water is not being provided.

6. White wash and colour wash have not been provided.

7. No compound wall has been provided, etc.

The complainants further state that the complainant sent a letter dated 12.11.2003 requesting the 1^st opposite party to rectify the defects,  since the 1^st opposite party has not come forward to provide the amenities agreed, to rectify the defects including removal of unauthorized construction.     As such the act of the opposite parties clearly amounts  to gross deficiency in service and thereby caused deficiency in service and mental agony to the complainant.  Hence the complaint is filed.

3. The brief averments in the Written Version of  the 1^st opposite party   are as follows:

        The 1^st opposite party state that the opposite party denies all the allegations contained in the complaint except those which are specifically admitted herein and this opposite party puts the complainant to strict proof of each and every allegation.    The opposite party submit that the apartment has been constructed and handed over to the complainant on 21.3.2003.    As per clause 25 of the said agreement, the complainants are required to notify in writing within a period of six months from the date of taking possession.  There was no such complaint.   The 1^st opposite party further submit that  it is rather stranger that the complainants nearly after two years from the date of taking over possession have filed the present complaint alleging deficiency in service.  The complainants have suppressed the fact that a Civil Suit being O.S.No.1230 of 2004 has been filed by the  first complainant against the opposite party as well as the Sai Ayshwarya Enclave Association in the City Civil Court, Chennai.  The opposite party also state that  the allegation that the complainants were given to understand that CMDA had originally sanctioned construction in the Ground floor and first floor, with Four flats but the present apartment has 18 flats with ground and four floors is denied.    The opposite party further state that with regard to averment that the copy of the building plan has not been provided nor an indemnity bond issued in safeguarding flat from demolition, it is submitted that the complainants and all the apartment owners were aware that 18 apartments were being constructed on the said land and that an application for regularization of the said construction was pending.   The complainant had agreed to purchase the flat with the deviated construction and they had also taken possession of the same without any protest.    The construction agreement does not stipulate for the provision of compound wall, hence the said allegation is baseless.    The complainant apartment has been constructed as specified in the said agreement.  

4.     The opposite party submit that as regards prayer claiming amount towards the common area it has been provided as agreed.  Hence the opposite party is not liable to pay a sum of Rs.2,86,3380/- towards alleged 30% of the common area at 1250 sq. ft. as per the said agreement.   The opposite party also state that  with regard to seeking refund of amount received towards construction of car park, it is submitted that the complainant  has acknowledged receipt of the key of the said car park and has also stated that  she has no claim against the opposite party and hence the complainants are not entitled for such relief.  The opposite party further state that for the prayer seeking direction to demolish  unauthorized office space in the basement thereby providing adequate car and two wheeler parking space to the members in the premises, it is submitted that car park was to be provided only to three apartment owners one being the complainants.   The same has been duly provided.  Such a relief affects the rights of other co-owners and hence ought not  to be granted.     Hence there is no deficiency in service on the part of the opposite party and therefore this complaint is liable to be dismissed.

5. The brief averments in the Written Version of  the 2^nd  opposite party   are as follows:

          The 2^nd opposite party denies all the allegations and averments made in the complaint except those that are specifically admitted herein.   The complaint is totally false, frivolous, vexatious and hence not maintainable on facts and in law.      The 2^nd opposite party submit that at that time it was also brought to the notice of the opposite party that there were certain deviations in the constructions made by the 1^st opposite party and the 1^st opposite party have also established through documents that they have applied for a regularization scheme and also paid necessary regularization fee for validating such deviations.   This was primarily proof enough for the 2^nd opposite party at that time to hold that the 1^st opposite party  have taken steps to comply with the necessary building rules.   Therefore what was verified by the 2^nd opposite party was the marketable title of the flats and the competency of the seller to execute the sale deed and it is not their duty to verify whether the constructions were made in accordance with the promises alleged to have been given by the 1^st opposite party.   The 2^nd opposite party submit that  the 2^nd opposite party is reputed banking company and is in the business of providing financial assistance to eligible / qualified loan applicants for purchase of property and nothing more.   Any attempt in attributing further roles or motives on the 2^nd opposite party will only be imposing the onerous task of a Certifying Authority or a Watch Dog” of the construction and flat promotion industry.  It is not the duty of the technical department of the 2^nd opposite party to search and verify whether the facilities and amenities alleged to have been promised by the 1^st opposite party is duly complied with.    The 2^nd opposite party submit that it is relevant to note that at the time of entering into the agreement to purchase of the flat by the complainant with the 1^st opposite party the promoter had applied for the regularization scheme and paid the requisite fee and thus the complainant is misleading this forum by denying any knowledge on the status and position of the approved plans or the construction.   Hence there is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

6.     In spite of service of the notice the 3^rd opposite party is called absent and set exparte.

7.        In order to prove the averments of the complaint, the complainants have filed proof affidavit as their evidence and documents Ex.A1 to Ex.A37 marked.  Proof affidavit of opposite parties filed and no documents  marked on the side of the  opposite parties.

8.   The point for the consideration is:  

1. Whether the opposite party is liable to rectify the defects as per letter dated 12.11.2003 of the complainant as prayed for ?

   

2. Whether the complainants are  entitled to a sum of Rs.2,86,338/- towards 30% of the common area at the rate of 1250 per sq. ft. as prayed for?

 

3. Whether the complainants are entitled to a sum of 1,25,000/- paid towards closed car parking  and a sum of Rs.1500/- towards property tax and a sum of Rs.8,50,877.50 towards completion certificate and a sum of Rs.50,000/- towards extra registration charges and Rs.3,00,000/- towards mental agony as prayed for ?

 

4. Whether the complainants are entitled to the common amenities as per brochure and demolish the office space in the basement area with cost as prayed for ?

 

 

9.  POINTS 1 & 2 :

         

        Heard both sides.  Perused the records.   The learned counsel for the complainants contended that they had purchased an apartment in “Sai Ayshwarya Enclave’ from the opposite party; after seeing the brochure; website and newspapers; entered into an agreement Ex.A5 and thereafter the sale deed Ex.A6 was executed and took possession of the property.  The learned counsel for the complainant further contended that the opposite party has not provided the amenities stated in the brochure and advertisement.   Equally the opposite party has constructed an office space in the basement area unauthorizely.    The learned counsel for the complainant further contended that the complainants sent a letter dated 12.11.2003 requesting the opposite party to rectify the defects stated therein; since the opposite party has not come forward to provide the amenities agreed and to rectify the defects including removal of unauthorized construction, the complainants were constrained to file this case.    But on a careful perusal of the records it is seen that the complainants after seeing the brochure and advertisement entered into an agreement Ex.A5 which is a bilateral agreement having detailed terms and conditions; in which the complainants failed to pay any amount towards amenities like gym.   Similarly a sum of Rs.1,25,000/- paid towards closed car parking.  The complainant has not produced any document to prove that the opposite party has unauthorizely constructed an office space in the common area.   The complainants miserably failed to take Advocate commission for proving such deficiency in this case.  Further it is also seen from the agreement Ex.A5 immediately after the due execution of sale deed and taking possession of the apartment within six months the complainant shall approach the opposite party in order to rectify the defects if any.   In this case, the complainants has not whispered anything about the deficiency or unauthorized construction or defects within such six months time as per Clause-25 of the construction agreement.   The complainants filed this complaint on  21.5.2004 (i.e.) after lapse of one year and nine months from the date of taking possession of the property.   Further it is seen from the records that the complainants filed Civil suit in O.S.No.1230/2004 before the City Civil Court for similar  relief and is pending.  Since  similar relief complicated Civil suit is filed and pending the complainants can very well obtain suitable relief from the Civil court also.  

8.     The learned counsel for the opposite party contended that as per the agreement the opposite party fully constructed apartment and executed sale deed in favour of the complainants and delivered possession positively on 21.3.2002.  It is agreed in the bilateral agreement that if any deficiency arises the complainants shall inform the opposite party to rectify the same within the period of six months.    The complainants or his agent never approached the opposite party for rectifying such defects;   since there is no defects.   Further the learned counsel for the opposite party contended that at the time of entering into the agreement Ex.A5 and thereafter due execution of sale deed all the documents related to the property including plan and sketches; encumbrance certificate etc. were duly  handed over to the complainant.   On the basis of it, the complainants also obtained loan for purchasing the property.    Further the learned counsel for the opposite party contended that the complainant filed civil suit in O.S.No.1230/2004 before the City Civil Court requesting all the reliefs claimed in this case.  Hence this forum has no jurisdiction because all the relief sought for requires elaborate oral evidence, documentary evidence; independent evidence etc. Therefore by way of summary trial the claim of the complainant cannot be settled.  Considering the facts and circumstances of the case, this forum is of the considered view that the claim of the complainants requires detailed enquiry by way of oral evidence; and independent evidence including documentary evidence.  Hence this forum is of the considered view that the complainants can very well adjudicate the issue before the City Civil Court and points 1 & 2 are answered accordingly. 

9.      POINTS 3 & 4: -

        The learned counsel for the complainant contended that he has purchased the property at the rate of Rs.1250 per sq ft., as per the agreement and plan 30% of the property is left as common area.  But the opposite party has not left open the above said 30% of the property and unauthorizely  constructed an office space.  Similarly instead of 4 apartments, the opposite party constructed 18 apartments.  Hence the complainants are entitled to a sum of Rs.2,86,338/- towards the 30% of the common area.   But on a careful perusal of the entire records the complainants have not proved that whether the 30% of the common area provided is available or not.   The complainants have not taken any steps to identify the alleged 30% of the common area also.  The learned counsel for the opposite party contended that as per the specification he has constructed the apartments and sold out leaving the common area of 30% and all other things except the deviation of some construction.   The opposite party also submitted application for regularization to the CMDA and was pending.

10.    Further the learned counsel for the complainant contented that as per the agreement Ex.A5 and sale deed Ex.A6 the complainant has paid a sum of Rs.1,25,000/- towards closed car parking; but the opposite party has not provided such a closed car parking as per the due specification.  On a careful perusal of the records it is seen that as per Ex.B5 the complainant has received the car parking key allotted to the complainant and declared that he has no claim further.    The learned counsel for the opposite party contended that as per specification and agreement due closed car parking has been constructed and handed over to the complainant and was duly acknowledged.  Therefore the complainant shall have no claim for such car parking. 

11.    The learned counsel for the complainant further contended that after handing over the possession of the building and after the execution of the sale deed the opposite party claimed a sum of Rs.1500/-  towards assessment of property tax.  It is the duty of the opposite party to pay such amount till handing over the property after due execution of sale deed.   But it is very clear from the records  and particular agreement of sale that the complainant himself agreed to purchase the property from the inception of construction, after due completion of construction the complainants taken possession of the same.  As such it is the duty of the complainants to pay property tax Rs.1300/- and other tax.   The opposite party have nothing with the payment of property tax of the house belongs to the complainants; since the opposite party is a builder he can help for such assessment of local tax including property tax.

12.    The learned counsel for the complainant further contended that the opposite party admittedly accepted for construction of four houses but deviating the plan constructed 18 houses and sold the same to 18 person.  The opposite party failed and neglected to obtain the completion certificate from the CMDA.  On the other hand the CMDA issued letter dated 11.10.2002 for due regulation of the apartment demanding a sum of Rs.8,50,877.50 in which the opposite party has paid a sum of Rs.1,00,000/-.  But process of regulation is still pending.   The complainants are claiming a sum of Rs.8,50,877.50 with interest without any basis and thereafter the complainant himself not pressed the relief. 

13.    Further the learned counsel for the complainant contended that the opposite party wantonly and deliberately violated terms and conditions of the CMDA and against the approved plan and conditions constructed 18 apartments without any approval and it is pending for regularization; since the CMDA has not regularized the above said construction; the CMDA has every right to demolish such unauthorized construction.  Under these circumstances in order to safeguard the interest of the complainant and indemnified the cost of the building purchased by the complainants both opposite party and CMDA shall provide a bond of indemnity otherwise the complainant may be put to great loss.   The learned counsel for the opposite party contended that admittedly there are some deviation in the construction the opposite party applied for due regularization after paying a sum of Rs.1,00,000/- the balance amount of Rs.7,50,877.50  has to be paid by the owners of the building but none of the owner paid the amount and making such allegation is not acceptable.  It is well settled that the construction before 2007 has to be regularized as per Commission.  Hence the question of indemnity never arise.   Further the learned counsel for the complainant contended that the opposite party received a sum of Rs.50,000/- towards additional registration charges; but it is very clear that as per the agreement without any delay the construction was completed and due sale deed was executed.  Hence the said amount was actual amount to be paid for due registration.  The learned counsel for the opposite party contended that for due registration the purchaser of the flat shall pay the stamp duty and registration fees.  In this case the complainant has rightly paid the registration chargers including stamp duty.  The allegation that a sum of Rs.50,000/- has been additionally collected from the complainant is absolutely false.   There is no basis for such amount.

14.    The learned counsel for the complainant contended that since there are deviation in the construction and defects therein demand of additional charges caused severe mental agony to the complainant. The complainant claiming a sum of Rs.2,00,000/- as compensation towards such mental agony.  But on a careful perusal of entire records including a Civil suit in O.S.No.1230/2004.  It is seen that the complainant had prayed for such relief before the City Civil Court.  Therefore the complainants have every right to claim such defects before the City Civil Court also.  Considering the facts and circumstances of the case this forum is of the considered view that the complainants are not entitled for any relief in this complaint and the points 3 & 4 are  answered accordingly.

        In the result, this complaint is dismissed.  No cost.

 

          Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  5^th  day  of  July 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1-  13.4.2003 - Copy of Advertisement in the Hindu.

Ex.A2-         -       - Copy of Phamphlet.

Ex.A3-         -       - Copy of Brochure.

Ex.A4-         -       - Copy of Webpage Display.

Ex.A5- 28.1.2003  - Copy of Agreement.

Ex.A6- 3.2.2003    - Copy of Sale deed.

Ex.A7- 3.2.2003    - Copy of Sanctioned letter.

Ex.A8- 11.10.2002         - Copy of letter from CMDA.

Ex.A9- 12.11.2003         - Copy of Letter from the Association.

Ex.A10-       -       - Copy of Chat of Undivided share of land.

Ex.A11- 24.2.2004         - Copy of letter to 2^nd opposite party.

Ex.A12-       -       - Copy of Ack. card.

Ex.A13- 3.1.2003  - Copy of Receipt.

Ex.A14- 6.1.2003  - Copy of Receipt.

Ex.A15- 9.1.2003  - Copy of Receipt.

Ex.A16- 6.1.2003  - Copy of Receipt.

Ex.A17- 9.1.2003  - Copy of Receipt.

Ex.A18- 13.1.2003         - Copy of Receipt.

Ex.A19- 16.1.2003         - Copy of Receipt.

Ex.A20- 17.1.2003         - Copy of receipt.

Ex.A21- 18.1.2003         - Copy of receipt.

Ex.A22- 20.1.2003         - Copy of Receipt.

Ex.A23- 23.1.2003         - Copy of receipt.

Ex.A24- 24.1.2003         - Copy of receipt.

Ex.A25- 24.1.2003         - Copy of receipt.

Ex.A26- 27.1.2003         - Copy of receipt.

Ex.A27        -       - Copy of Bank Statement.

Ex.A28-      -       - Copy of TNEB Card.

Ex.A29-      -       - Copy of Plaint in O.s.No.1230/2004

Ex.A30-      -       - Copy of Written statement in O.S.1230/2004

Ex.A31-      -       - Copy of Photos of the unfinished flats.

Ex.A32- 29.1.2003 – Copy of Provisional sanction letter from 2^nd opposite party.

Ex.A33- 15.11.2004- Copy of legal notice from 2^nd opposite party. 

Ex.A34- 30.11.2004- Copy of reply notice.

Ex.A35-      -       - Copy of Notice of Lok Adalat case NO.84/04 filed by the

                                      2^nd opposite party.

Ex.A36- 19.11.2004 – Copy of letter from 2^nd opposite party.

Ex.A37- 1.1.2005    - Copy of reply to the letter dated 19.11.2004.

 

 

Opposite party’s side document: -   

..Nill..  

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.