Tamil Nadu

StateCommission

CC/120/2014

Anand Ramanan - Complainant(s)

Versus

Puravankara Projects Ltd., Authorized Signatory - Opp.Party(s)

K.G.Vasudevan-Complt,

17 Feb 2023

ORDER

Date of filing:  2.5.2014

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE      Hon’ble Thiru Justice R. SUBBIAH          PRESIDENT

                             Thiru R   VENKATESAPERUMAL              MEMBER

 

CC.NO. 120/2014

 DATED THIS THE 17^th  DAY OF FEBRUARY 2023

Anand Ramanan

Rep. by his POA Holder

P.R.Ramanan

No.12, Nagarathnam Colony                                              

Sir P A Sivasamy Salai                                                            

Mylapore, Chennai 600 004                                                 ....Complainant

 

                                                  Vs 

Puravankara Limited

(Formerly Puravankara Projects Limited)

Rep. by its Managing Director

130/1, Ulsoor Road,

Bangalore – 560 042, Karnataka       

(Amended as per order in CMP.No.182/2018 dt.21.02.2018)               ....Opposite party

 

Counsel for complainant                               :   M/s  M/s. K.G.Vasudevan

Counsel for opposite party                           :   M/s. Anup Shah Law Firm

 

         This complaint coming before us for hearing finally on 28.10.2022 and on hearing the arguments of counsel appearing for both parties and upon perusing the material records this Commission made the following order:

ORDER

Justice R. SUBBIAH,  PRESIDENT    

1.       This complaint has been filed under Sec.17 of the Consumer Protection Act, 1986, as against the opposite parties for the following reliefs:

    i.    To direct the opposite party to refund a sum of Rs.80.57 lakhs made up of principal sum of Rs.47.91 lakhs, Rs.0.72 lakhs being the insurance premia paid to HDFC and Rs.31.94 lakhs being the interest loss suffered by the complainant together with further interest  

   ii.    To pay a sum of Rs.5 lakhs for deficiency in service

iii.      To pay a sum of Rs.2.50 lakhs towards compensation for mental agony

iv.      To pay Rs.2.50 lakhs towards loss caused due to loss of opportunity

v.       To pay cost

 

 2.      The case of the complainant in brief is as follows:

          The opposite party is a builder.  On the representation made by the opposite party, the complainant proposed to purchase two units of flats in one of the projects of the opposite parties viz. Puravankara Windermere, i.e., the project developed by the opposite party at Pallikaranai, Chennai.  The complainant paid a sum of Rs.6 lakhs as booking advance for the two flats.  He has paid the said amount by way of cheque dt.14.2.2008.  The cheque was encashed by the opposite parties on 30.5.2008.  Later it was represented by the opposite parties that the said project was likely to be dropped due to some reason, and it was suggested that the complainant could purchase a flat from another project, viz. Swanlake, instead of two flats at Pallikaranai Property.  On such advise by the opposite parties, the complainant had agreed to purchase flats in the project called Swanlake at Kelambakkam in the year 2008.  The booking advance of Rs.6 Lakhs paid by the complainant for the Pallikaranai Project was transferred to Kelambakkam ‘Swanlake’ project.  Then the complainant was asked to pay additional sum of Rs.1.52 lakhs, as the advance payable for the flat for the Kelambakkam ‘Swanlake’ Project, which was fixed at Rs.7.52 lakhs.  Hence the complainant, after cancellation of the booking in Pallikaranai project, entered into the agreement for purchase of flat at Kelambakkam ‘Swanlake’ project.  The following agreements were entered into between the parties

1. An agreement for purchase of undivided share of land on 14.11.2008
2. Construction Agreement on 14.11.2008
3. Tripartite agreement alongwith HDFC Ltd., Chennai on 15.12.2008, by which the further payment for the project on behalf of the complainant was to be paid out of the loan account of the complainant.

 

It was held out by the opposite parties that HDFC Ltd., was their funding bank, and it will be convenient for them if the complainant availed the loan for the purchase of the flat in the ‘Swanlake’ project at Keelambakkam from them.  Accordingly, the complainant availed loan from the HDFC Ltd, by entering into a tripartite agreement.  As per the relevant clause in the agreement, the project has to be completed and has to be handed over after completion in all respects on or before 31.5.2010.  On due sanction of loan by the HDFC Ltd., a payment of Rs.10,16,781/- was released and paid out of the loan amount of the complainant on 3.2.2009.  Thus the complainant has paid a sum of Rs.17.69 lakhs i.e., Rs.10,16,781/- + Rs.7.52 lakh as advance.  Eventhough the project was expected to be completed on or before 31.5.2010, the same was not completed within the time specified.  In the meantime, the complainant has paid total sum of Rs.34.21 lakhs, which is equivalent to 67%.  The total consideration paid by the complainant

worksout to Rs.51.44 lakhs.  But there was no semblance of the completion and handing over of the flat to the complainant as stipulated in the agreement, within the deadline of 31.5.2010.  Since the opposite parties have not shown any progress in the construction, the HDFC Bank Ltd., also refused to release any further payment.  After much persuasion,   HDFC Bank Ltd., had released a further payment of Rs.7.5 lakhs on 14.12.2011.  The   complainant, after contributing a further sum of Rs.7.5 lakhs towards the total consideration of Rs.51.44 lakhs had paid 81% of total consideration.  The opposite parties were only interested in extracting money from the complainant, but there was no progress in the construction.  The opposite parties were sending emails after emails, demanding payment of interest and delayed payment.  Therefore, after the assurance given by the opposite parties after contacting them personally,  that the complainant will not be liable to pay any default interest, the complainant had persuaded the HDFC bank for release of a further sum of Rs.6.2 lakhs.   But the opposite parties kept on sending email after email demanding an interest amount and as per email dt.3.3.2014, the opposite parties demanded Rs.781380/- as interest.  Even after paying a substantial amount of Rs.47,90,804/- and after waiting endlessly for more than four years for the project to be completed, the demand of the opposite parties for the interest had caused mental agony to the complainant.  Hence he filed this complaint praying for a direction to the opposite parties to refund Rs.80.57 lakhs alonwith compensation of Rs.5 lakhs towards deficiency in service, Rs.2.50 lakhs towards compensation for mental agony, Rs.2.50 lakhs towards loss and also to pay cost. 

 

3.       The said complaint was resisted by the opposite party, by filing version as follows:

          The opposite parties are the absolute owner of the land measuring 10.32 Acres in Survey Nos.483/1A, measuring 0.47 Acres, 484 measuring 2.79 acres, 485/2B measuring 0.44 acres, 488/1, measuring 0.09 acres, 488/2A measuring 0.14 acres, 488/2B measuring 0.52 Acres, 488/3A measuring 0.14 acres, 488/3B measuring 0.12 acres, 488/4 measuring 0.08 aces, 489/1C measuring 0.18 acres, 489/3B measuring 0.28 acres, 514 measuring 0.68 acres of Padur Village and Survey Nos.145 measuring 3.10 acres, 146/1A measuring 0.29 acres, 146/1B measuring 0.76 acres, 146/2A measuring 0.18 acres and 146/2B measuring 0.06 acres of Kelambakkam Village, Chengalpattu Taluk, Kancheepuram District.  They have formulated a scheme for development of Schedule Property into a residential apartment complex known as “Purva-Swanlake” consisting of several blocks with basement+stilt+14 and 10 & 11 Upper floors, common compound, entrances, lobbies, staircase, lifts and passage with rights in the common areas in the residential complex.  The complainant had agreed to join the scheme after scrutinising the title of the opposite parties Schedule property, the sanction plans, scheme of development, and the proposed modification of plans, entered into an agreement on 14.11.2008, whereby the terms and conditions were mutually agreed by the parties.  The persons like complainant who had choice to enter into contract with the terms contained in the contract with regard to immovable property cannot be permitted to invoke the equity and compensatory jurisdiction for enforcement of a contract which is in the realm of civil courts of the country.  As such there is no relationship of ‘consumer’ and ‘service provider’ between the parties.  Thus they sought for dismissal of the complaint. 

 

4.       In support of their contentions proof affidavits were filed by both parties, alongwith documents, which are marked as Ex.A1 to A12 on the side of the complainant and Ex.B1 & B2 on the side of the opposite parties. 

 

5.       When the matter is taken up for consideration, the learned counsel for the complainant would contend that inspite of payment of 90% of the loan amount, till date the opposite parties have not completed the project.  The agreement was entered into between the parties on 14.11.2008.  The opposite parties have assured that the project would be completed, and the flat would be handed over on 31.5.2010.  But even after lapse of four years, the flat was not handed over.  There was still neither a semblance of progress in construction nor any revised schedule for completion.  Therefore, the complainant sought for repayment of the amount paid.  But the opposite parties were giving only lame excuses for not completing the project.  Hence he has come forward with the present complaint, claiming a sum of Rs.80.57 lakhs made up of the principal sum of Rs.47.91 lakhs, Rs.0.72 lakhs being the insurance premia paid to HDFC and Rs.31.94 lakhs being the interest loss suffered by the complainant, together with further interest, alongwith compensation for deficiency in service @Rs.5 lakhs, for mental agony Rs.2.50 lakhs and for loss @Rs.2.50 lakhs. 

 

6.       Per contra, the opposite parties would contend that the complainant is yet to pay some balance amount.  Therefore, he is not entitled for the refund of the amount.

 

7.       Having considered the submissions made on either side, we find that there is a justification in the prayer made by the complainant, for refund of the amount paid by him, since the opposite parties have not completed the construction till date and handed over the flat.  The opposite party also had not denied the allegation of the complainant that they have not completed the construction.  Therefore, having failed to comply with the promise,  the opposite parties are bound to refund the amount, when demand was made by the purchaser.   In this regard it is appropriate to rely upon the judgement dt.24.12.2021 of the Hon’ble National Commission in the case of Nitin Pandey & Anr. Vs. Ms.Emaar Mgf Land Ltd., & Another, wherein it has been stated that “ complainants cannot be made to wait indefinitely for possession of their apartments and the complainants are entitled for refund of the principal amount with interest”.

          Therefore, having not completed the construction as promised  and handed over the possession, as per the dictum laid down in the above judgement, the opposite party cannot deny the demand of the complainant for refund of the amount paid.  Therefore the complainant is entitled for refund of the amount paid alongwith interest @9% p.a., from the date of complaint till realisation.

 

8.       The construction agreement was entered into between the parties in the year 2008.     The complaint was filed in the year 2014, i.e., 6 years after the construction agreement. Now more than 8 years have been completed.  But the opposite parties even after receipt of more than 80% of the total consideration, have not made any progress in  the construction, and made the complainant to run from pillar to post to know the status of construction.  Moreover, without any progress in the construction, the complainant was burdened of paying interest for the loan obtained from the bank.   Therefore, the complainant would have suffered mental agony, for which he is entitled for compensation, which we fix at Rs.2,00,000/-.

 

9.       In the result, the complaint is allowed in part by directing the opposite party to refund the principal amount of Rs.47.91 lakhs, alongwith interest @9% p.a., from the date of complaint till realisation, alongwith compensation of Rs.2,00,000/- and cost of Rs.25000/-.  Time for compliance two months, from the date of receipt of copy of the order. failing which the amount awarded above shall carry further interest @6% p.a., from the date of default till realisation.   

           

            R   VENKATESAPERUMAL                                                                    R SUBBIAH     

                      MEMBER                                                                                        PRESIDENT

 

Exhibits filed on the side of complainant

A1    14.11.2008    Agreement of sale between the complainant and the opposite party

A2        “              Construction Agreement between the complainant and OP

A3    15.12.2008    Tripartite Agreement between the parties

A4    02.02.2009    Loan agreement between the complainant and HDFC Bank Ltd.,

A5    02.02.2009 to Payment released by the Bank to OP out of the loan account of

        19.06.2013      complainant

A6    31.03.2008 to

        28.02.2014    Funds made by the complainant from time to time to HDFC Bank

A7    03.03.2014    E-mail by OP demanding interest payment

A8    09.03.2014    Interest made to HDFC upto 28.2.2014

A9    21.03.2014    Advocate notice by complainant to OP

A10   02.04.2014    Reply notice by Ops

A11   25.04.2014    Power of attorney

A12   26.06.2015    Information from PIO, Town and Country Planning, Chennai.

 

Exhibits filed on the side of  Opposite party

B1    16.09.2014   Board Resolution by Ops

B2    19.06.2015    Statement of accounts           

 

 

 

  R   VENKATESAPERUMAL                                                                 R SUBBIAH     

                     MEMBER                                                                              PRESIDENT