Tamil Nadu

StateCommission

CC/28/2012

NARAYANAN - Complainant(s)

Versus

PURAVANKARA PROJECTS LIMITED - Opp.Party(s)

V. KRISHNAMURTHY

07 Aug 2015

ORDER

                             BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                                 PRESENT :  THIRU.A.K.ANNAMALAI                         PRESIDING JUDICIAL MEMBER

                                                        TMT.P.BAKIYAVATHI                             MEMBER

                                                                                               C.C.NO.28/2012

DATED THIS THE 7^th DAY OF AUGUST 2015

                                                                                                                                                    Date of filing :  15.12.2011

                                                                                                                                                    Date of order : 07.08.2015

Dr.Narayanan,

S/o.N.Krishnamoorthy,

Narayaneeyam,

Ananthavalleeswaram,                                             M/s.V.Krishnamurthy

Kaikulankara North,                                               Counsel for Complainant

Kollam 6919012.

               

-vs-

Puravankara Projects Limited,

No.1, LVR Centre,                                                    M/s.Anups Shah Law Firm

Seshadri Road,                                                        Counsel for opposite party

Alwarpet, Chennai 600 018.

          The complaint filed by the complainant before this commission against the opposite party praying to direct the opposite party to refund a sum of Rs.44,06,427/- with 18% interest per annum and to pay a sum of Rs.5,00,000/- as compensation for the mental agony and to pay a sum of Rs.56,000/- towards litigation expense.   This complaint coming before us for final hearing on 31.07.2015 and heard the arguments on either side, and perused the records and passed the following order:

THIRU.A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER

1.       The complaint filed under Sec.17 of the Consumer Protection Act, 1986.

          The complainant praying for refund of money for Rs.44,06,427/- with 18% interest and another sum of Rs.5,00,000/- as compensation for mental agony and to pay Rs.56,000/- towards litigation expenses alleging deficiency in service against the opposite party in giving the flat to the complainant.

2.       The case of the complaint in brief as follows:

          The complainant was lured by the publicity by the opposite party booked for the allotment of Purva Swanlake Project Lifestyle Homes bearing flat No.K403 in the 4^th floor V Block, measuring an extent of 1330 sq.ft for a total consideration of Rs.59,19,390/- in their project at Kelambakkam as per the promise with various attractive features in their brochure for which the complainant paid various amounts to the extent of Rs.44,06,427/- out of total consideration of Rs.52,54,628/- till 15.10.2010.  According to the construction agreement dated 1.6.2007, the construction of flat to be completed on or before 31.5.2010 and subsequently it was assured that the flat would be handed over in December 2010.  The complainant made trip along with his family members from U.S.A to Chennai to take over the flat, when he visited the spot he found that the project was in a state of standstill and no progress in construction was there.  Only outer structure was completed and the opposite party also given some payment holiday for withholding the construction and since January 2010 the complainant was forced to make payments upto Rs.9,39,264/- and until October 2010 total payment for Rs.44,06,427/- about 84% of the total cost was paid.  On RTI information the complainant came to know that the opposite party had not completed the project upto March 2011 and due to variations in the plan regarding FSI and for want of approval for the construction of 9^th Floor and above.  In the circumstances the opposite party committed deficiency in service failed to deliver the possession of the flat on the schedule day on 31.5.2010 and subsequently, therefore praying for the reliefs as above.

3.       The opposite party denied the allegations in their written version contended that the complainant is not a consumer as per the provisions of the Consumer Protection Act and since alleged deficiency in service relates to the contract only Civil Court has to decide the same and as per the agreement for sale and construction agreement the complainant agreed for the terms and conditions of the opposite party in which clearly mentioned about the variations of the proposed plan and construction and the undivided shares to be allotted with reference to the feature construction which are going to be entered together for registration and the delay of construction was made beyond the control of the opposite party and the complainant has not stick on with the schedule of payments for the flat and the delay was caused due to the delayed payment by purchasers including the complainant, as a goodwill the opposite party had declared payment holiday for 6 to 9 months between April 2009 to November 2009 and having enjoyed the benefits and accepted the alleged delay is not attributable to the opposite party and the complainant had defaulted in payment of sum of Rs.8,30,968/- towards the sale price and a sum of Rs.17,498/- towards service tax and the complainant agreed for the Clause 7 and 15 of construction agreement and visit of the complainant from USA for the purpose of possession not proved and the information obtained under RTI Act are not correct and thereby there was no deficiency in service on their part and the complaint is liable to be dismissed.

4.       Both sides have filed their proof affidavits and on the side of the complainant Ex.A1 to A17 are marked and on the side of the opposite party Ex.B1 to B4 are marked.

5.       The following are points for consideration :

          1.Whether the complainant is not a consumer as alleged by the opposite party?

          2.Whether there is any deficiency in service by the opposite party in not handing over the flat K403, 4^th floor in the Purva Swanlake Project Lifestyle Homes, Kelambakkam as alleged by the complainant?

          3.Whether the complainant is entitled for the refund of Rs.44,06,427/- with 18% interest as prayed for ?

          4. To what relief?

 6.      POINT NO.1 :    The opposite party contended that the complainant is not a consumer stating  that in view of the contract of service between the parties which is liable to be adjudicated and enforced only before the Civil Court and thereby no relationship of consumer and service provider between the parties.  These contentions cannot be accepted since the complainant is entitled to invoke the provision under Sec.3 of the Consumer Protection Act apart from any other relief as additional one under any other law.  Further under Sec.2 (1) (o) of the Consumer Protection Act as per the Amended Act 50 of 1993 Housing Construction and Facilities along with  the  banking,  financing, insurance, transport, processing, supply of  electrical or other energy  is also added as one of the service / provided and thereby the opposite party having entertained contract with the complainant to provide house / flat for consideration is attracted as service provider under the Act and thereby for any deficiency in the same thereby the complainant becomes a consumer for claiming reliefs under the Act and this point is answered accordingly.

7.       POINT NO.2 & 3 :  It is the admitted case of both sides that the complainant and the opposite party entered into an agreement for sale of the flat as well as the construction of flat in the project of Purva Swanlake Project Lifestyle Homes for the allotment of K403, 4^th floor, V Block flat to the extent of 1330 sq.ft on payment of Rs.59,19,390/- as per Ex.A4 including service tax and other charges for which the complainant had paid Rs.44,06,427/- more than 75% of the cost paid upto October 2010 which was not disputed by the opposite party. Whereas the opposite party by sending letter under ex.A6 regarding payments made and under Ex.A7 claiming for omitted payments from 15^th October 2009 and 15^th November 2010 for Rs.12,29,228/-.  In those circumstances it is evident that the complainant had paid Rs.44,06,427/- as claimed.  As far as the complainant’s contention is concerned even though as per the Sale and Construction Agreement Ex.A2 and A3 the proposed possession of the flat to be handed over as on 31.5.2010 and subsequently assured in December 2010, but it was not handed over till the date of filing the complaint in 2012.  Even though the opposite party claimed that the flats are ready and the complainant had not taken possession for which no documents has been filed by the opposite party.  Whereas the complainant contended that as per  RTI  information  there  was  deviation in  construction and FSI details in which the construction was deferred till March 2011 and there was proposed construction of 9^th floor and more.  For these, the opposite party relied upon Ex.B4 proceedings of the Member Secretary, Mamallapuram Local Planning Authority, Chengalpet dated 12.1.2011 in which subsequent approval for the construction of 1 to 14 floor in Block I and 1 to 9 floor in Block-11 and 1 to 11 on Block-III and other amended block were provided and thereby the delay was caused and from these details it is clear that as on the date of complaint as per the agreement the flat was not completed and handed over to the complainant which clearly establishes the deficiency on the part of the opposite party for which the complainant is entitled for compensation.  The opposite party contended that since the complainant is being a defaulter in payment to the extent of Rs.8,30,968/- he cannot claim benefit for refund of the amount and without the stipulation of terms and conditions and as per the same the opposite party is entitled to recover 15% of the value of the cost, whereas the complainant contended that having paid more than 84% of the cost and the completion of project was not seen the day of light.  When the developer has failed to fulfill their obligations they cannot cite a condition in an agreement for sale which itself entered into by giving misleading information.  Hence we are of the view that the contentions of the opposite party in this regard cannot hold good.  The Learned counsel for the complainant relied upon the following precedents in the similar matters reported in

(1) IV (2014) CPJ 188 (NC) in the case of Emmar MGF Land Ltd –vs- Karnail & Anr

(2) III (2011) CPJ 465 (NC) in the case of Param vir Singh –vs- P.H.Houses Pvt Ltd

(3) IV (2011) CPJ 113 in the case of Naresh Kumar Batra –vs- Parsvanath Developers Ltd

(4) III (2012) CPJ 715 (NC) in the case of Sharma Realty Pvt Ltd –vs- Pawan Kumar Makalesh Tripathy

(5) IV (2014) CPJ 4 (NC) in the case of Sujit Kumar Dhar –vs- Rachit GARG

in which it is observed categorically that the delay in handing over the flat or house even after specified periods from the date on which it was to be handed over the complainant entitled to refund with interest and it is also pointed out that the consumer cannot be made to wait indefinitely at whims and fancies of builder especially when false representation have been made regarding completion as observed in III (2011) CPJ 465 (NC).  In this case also the opposite party had made the complainant to wait indefinitely for the completion of work and thereby we are of the view that he is entitled for refund of money with interest.  The complainant claimed 18% interest and the opposite party in their letter under Ex.A7 demanded 24% interest in case of failure of the payment by purchasers for default and in those circumstances we are of the view that the complainant could be granted 15% interest per annum even though has claimed 18% interest from the date of last amount collected till realization and these points are answered accordingly.

8.       POINT NO.3 :    The complainant claimed Rs.56,000/- towards litigation expenses in view of the legal notice sent to the opposite party and by filing this complaint by paying court fee of Rs.4,000/-  and since the complaint is to be allowed for refund of money as there is no execution of documents for conveying undivided share in the land till  the date on which construction to be made for 1330 sq.ft which was not completed and handed over to the complainant the complainant is entitled for refund of Rs.44,06,427/- as prayed for in the complaint with 15% interest and accordingly this point is answered.

          In the result, the complaint is allowed. 

1. The opposite party is directed to refund the sum of Rs.44,06,427/- paid by the complainant towards the purchase of Flat No. K403, 4^th floor, 5^th Block measuring to the extent of 1330 sq.ft in Purva Swanlake Project Lifestyle Homes with interest at the rate of 15% from the date of last payment made by the complainant till realization and

2. directed the opposite party to pay a sum of Rs.2,00,000/- as compensation for causing mental agony and hardship caused to the complainant due to deficiency in service and also

3. to pay a sum of Rs.20,000/- towards litigation charges to the complainant including costs for this case.

4. These directions shall be complied within a period of six weeks from the date of this complaint, failing which the complainant is entitled to invoke Sec.25 and 27 of the Consumer Protection Act, 1986.

 

P.BAKIYAVATHI                                                       A.K.ANNAMALAI

       MEMBER                                                          PRESIDING JUDICIAL MEMBER

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT :

 

SL.NO	DATE	DESCRIPTIONS
Ex.A1		Copy of Brochure
Ex.A2	01.06.2007	Copy of Agreement for sale of UDS
Ex.A3	01.06.2007	Copy of Construction Contract
Ex.A4	07.08.2007	Copy of Details of Cost of Apartment Opposite party to complainant
Ex.A5	31.10.2007 to 30.09.2008	Copy of Receipts for the payment of the entire money for the scheme
Ex.A6	17.11.2008	Copy of Statement of payment furnished by the opposite party
Ex.A7	02.11.2010	Copy of letter from the opposite party to the complainant
Ex.A8	22.10.2011	Copy of Hindu Advertisement
Ex.A9	09.09.2011	Copy of Legal notice by complainant to opposite party
Ex.A10	12.09.2011	Copy of Postal Acknowledgement by opposite party for receipt of legal notice
Ex.A11	03.11.2011	Copy of details of EMI payable opposite party to the complainant
Ex.A12	29.11.2011	Copy of complainant’s letter to his counsel
Ex.A13		Original photos
Ex.A14	03.12.2013	Copy of Passport Endorsement
Ex.A15	29.11.2010	Copy of passport endorsement
Ex.A16	13.06.2013	Copy of HDFC Repayment Certificate
Ex.A17	07.06.2013	Copy of TOI Comml Advertisement

    

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

SL.NO	DATE	DESCRIPTIONS
Ex.B1	26.03.2007	Copy of Proceedings No.5608/07/PA2 by Directorate of Town and Country Planning, Chennai
Ex.B2	28.03.2007	Copy of Proceedings No.24 of 2007 by Mamallapuram Local Planning Authority
Ex.B3	17.04.2013	Copy of the Statement of Accounts
Ex.B4	12.01.2011	Copy of Proceedings in Na.Ka.No.656/2010/MLPA

 

P.BAKIYAVATHI                                                                A.K.ANNAMALAI

   MEMBER                                                              PRESIDING JUDICIAL MEMBER

INDEX; YES/ NO

VL/D;/PJM/CONSUMER