Tamil Nadu

North Chennai

CC/72/2015

R.Subburaj - Complainant(s)

Versus

R.Ramesh - Opp.Party(s)

M.T.Arunan

08 Jun 2017

ORDER

 

                                                            Complaint presented on:  13.03.2015

                                                                Order pronounced on:  08.06.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY THE 08^th  DAY OF JUNE 2017

 

C.C.NO.72/2015

 

R.Subburaj,

S/o.S.Ramasamy,

103 B, First Floor,

Jayaram Nagar,

4^th Cross Street,

Kolathur,

Chennai – 600 099.

                                                                                    ….. Complainant

 

..Vs..

R.Ramesh,

S/o G.Ranganathan,Proprietor,

Dhanalakshmi & Co.,

Plot No.68, B Block,

Thanikachalam Nagar, Kolathur,

Chennai – 600 110.

 

.....Opposite Party

Date of complaint                                 : 05.05.2015

Counsel for Complainant                      : M.T.Arunan

Counsel for    Opposite Party                   : A.Balasingh Ramanajam,                                                                

                                                                    S.Shanmugam

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant Complaint to direct the Opposite Party to hand over the reserved car park area to him and also to pay a sum of Rs.10,00,000/- towards compensation for constructing seventh flat in the second floor unauthorizedly caused mental agony to him and with cost of the Complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Opposite Party developed a project in the name and style of “SHARAN SHELTERS” to build a total number of 6 flats. The Complainant approached the Opposite Party to purchase a flat in the first floor measuring 880 sq ft along with 461 sq ft. UDS in the land. The complainant and the Opposite Party entered into a sale agreement and construction agreement between them on 27.09.2013. The Complainant paid total consideration of Rs. 38,34,500/- including a sum of Rs.1,00,000/- towards the reserve car parking area. Further the Complainant also paid charges for water supply, electricity connection, stamp duty and registration charges and including above said amount and thus totally paid a sum of Rs. 45,60,000/- in all to the Opposite Party.

          2. The Complainant made it clear that he would require a covered car park area and to which the Opposite Party assured to provide the reserve car park area to him. The Complainant is the first person to book a flat in the aforesaid project. Though as per plan the Opposite Party was permitted to build only 6 flats, he has unauthorizedly constructed a seventh flat on the second floor of open terrace. The Opposite Party could not hand over the reserve car park area to the Complainant  inspite of that he had received a sum of Rs.1,00,000/- exclusively for car park. As per the approved plan only four car parking area were marked. Among three car parking area one of the car park area was allotted to him on the basis of agreement.

3. Subsequently the Opposite Party  allotted seven car parking area without any approval and he had also sold the unauthorized construction of flat in the second floor  to another person for Rs.21,00,000/- without any approval. Hence the Opposite Party committed series violation in constructing one more flat unauthorizedly and also not allotting reserved car parking area earmarked for the Complainant as per the agreement dated 27.09.2013 is deficiency on the part of the Opposite Party. Hence the Complainant filed this Complaint to direct the Opposite Party to hand over the reserved car park area to him and also to pay a sum of Rs.10,00,000/- towards compensation for constructing seventh flat in the second floor unauthorizedly caused mental agony to him and with cost of the Complaint.    

4. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The Opposite Party admits that the Complainant approached him and entered sale agreement and construction agreement on 27.09.2013 for constructing a flat measuring 880 sq.ft in the first floor of the project along with 461 sq ft. of UDS share. The Complainant has not questioned the quality of construction and materials used in the project. 

          5. The Opposite Party handed over the possession to the Complainant without receiving the balance consideration in the month of June 2014 and exclusive car parking area to an extent of 8 X 12 earmarked and allotted to the Complainant. Having received the agreed car park area, the Complainant has no vested right to file this vexatious Complaint. The other averments made in the Complaint are denied. This Opposite Party has not committed any deficiency in service and prays to dismiss the Complaint with cost.

6. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

7. POINT NO :1 

The  admitted facts are that the Opposite Party developed a project in the name  and style of “SHARAN SHELTERS” to build a total number of 6 flats and  the Complainant approached  the Opposite Party to purchase a flat in the  first floor measuring 880 sq ft along with 461 sq ft. UDS in the land and the complainant and  the Opposite Party  entered  Ex.A3  sale agreement and  Ex.A4 construction agreement between them on 27.09.2013 and the Opposite Party also executed and registered  Ex.A4 sale deed in respect of 461 sq ft. in favour of the Complainant on 03.12.2013 and the  Complainant also  paid total consideration of Rs.45,60,000/- including a sum of Rs.1,00,000/- towards the reserve car parking area, water supply, electricity connection, stamp duty and registration charges etc.

8. The Complainant alleged deficiencies against the Opposite Party is that

1. the Opposite Party has not allotted the reserve car park area to the Complainant as per  Ex.A2 builder agreement and
2. the Opposite Party unauthorizedly constructed a seventh flat in the second floor of the terrace in the building against the sanctioned plan permitting to construct only six flats.

9.  The Opposite Party completed the construction of the flat and as per agreement the Opposite Party handed over the F1 flat to the Complainant in the first floor is not in dispute. Further, as per Ex.A2 construction agreement the Opposite Party agreed to allot a reserved car parking area to the Complainant. The Opposite Party specifically pleaded in his written version that he had handed over earmarked car parking area to an extent of 8 X 12 to the Complainant. The Complainant would contend that the reserved car parking area was not handed over to him.  When the Opposite Party handed over earmarked car parking area of  8 X 12 is the reserved car parking area. Further, the Complainant had not denied the written version of the Opposite Party about the car parking area  of 8 x 12 was handed over to him at the time of possession of the flat.  He has not denied the said fact of handing over the car park in his subsequently filed proof affidavit of the Complainant after filing of the written version. Further the Complainant himself stated in his Complaint para 11 that one of the car parking area was allotted to him on the base of agreement.  Therefore, as discussed above the Opposite Party has already handed the car parking area to the Complainant and hence in this respect the Opposite Party has not committed any deficiency.

10. The next contention of the Complainant is that the Opposite Party unauthorizedly constructed the seventh flat in the second floor of terrace against the sanctioned plan permission to construct only six flats. The construction of seventh flat was not specifically denied by the Opposite Party  in his written version and further he would plead in his written version that if at all illegal construction constructed by the Opposite Party the Complainant can lodge Complaint before the concerned authority and cannot agitate the same before this Forum.        Considering the above contentions it may be a fact that the Opposite Party constructed a flat unauthorizedly in the second floor.

11. However, this Forum is bound to see only the deficiency committed by the Opposite Party to the Complainant in respect of the flat purchased by him. In respect of the agreement entered between them, the Opposite Party handed over the flat and car park to the Complainant and the Complainant also is in occupation of the flat. In respect of unauthorized and illegal construction against the sanctioned plan, it is only such authority who gave permission to construct the building alone competent to question the same.  Therefore, the Complainant can very well work out his remedy if any in respect of unauthorized construction before the concerned authority.  In such circumstances, it is held that additional construction of the flat in the second floor by the Opposite Party cannot be considered as deficiency, in so far as this Complainant is concerned. Hence in respect of the unauthorized construction also this Opposite Party has not committed any deficiency. Therefore, from the forgoing discussions we hold that the Opposite Party has not committed any deficiency in service.

12. POINT NO:2

          Since the Opposite Party has not committed any Deficiency in Service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 08^th day of June 2017.

 

MEMBER – II                                                               PRESIDENT

 

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 13.03.2015                   The Complainant given to the Statement

Ex.A2 dated 27.09.2013                   Construction Agreement

Ex.A3 dated 27.09.2013                   Sale Agreement

Ex.A4 dated 03.12.2013                   Sale Deed

Ex.A5 dated 21.05.2013                   Bank of India (Kamanaicken Branch Infavour of

                                                     Dhanalakshmi & Co A/C No.802720100000003)

 

Ex.A6 dated 22.05.2013                   Advance  amount paid infavour of

                                                    M/s.Dhanalakshmi & Co.,

 

Ex.A7 dated 18.12.2013                   The Thoothukudi District Central Co-operative

                                                     Bank Ltd-Draft Infavour of Dhanalakshmi & Co

                                                     A/C.No.802720100000003

 

Ex.A8 dated 19.12.2013                   The Thoothukudi District Central Co-operative

                                                      Bank Ltd-Draft Infavour of Dhanalakshmi & Co

                                                     A/C.No.579901010050151

 

Ex.A9 dated 31.12.2013                   Cheque paid amount details for HDFC Bank in 

                                                    Statement of Accounts (from 01.10.2013 to

                                                    31.08.2014) in reference

 

Ex.A10 dated 19.02.2014                 The Thoothukudi District Central Co-operative

                                                      Bank Ltd-Draft Infavour of Dhanlakshmi & Co

                                                     A/C.No.801720100000003

 

Ex.A11 dated 27.02.2014                 Union Bank of India (Kolathur Branch) infavour

                                                     of Dhanalakshmi & Co.A/c.579901010050151

 

 

 

Ex.A12 dated 21.07.2014                 Cheque paid amount details for TNSC Bank in

                                                    Statement of Accounts (from 13.07.2014 to

                                                    31.07.2014) in reference

 

Ex.A13 dated 04.03.2014                 Memorandum of Deposit of Title Deeds

                                                    Infavour of M/s.United Bank of India (with

                                                    Insurance amount +13,000/-)

 

Ex.A14 dated NIL                             I.D, proof if Complainant (I.D.No.XOE

                                                    1257252)

 

Ex.A15 dated 20.03.2014                 Tamil Nadu Registration Department

                                                    Encumbrance Certificate  details

 

Ex.A16 dated NIL                             Flat and Car parking plan details

 

Ex.A17 dated NIL                             Area Statement (COC) Project Details

 

Ex.A18 dated 14.03.2014                 Deposits of Title Deeds (DD Challan  

                                                    No.206141)

 

Ex.A19 dated 14.03.2014                 Deposits of Title Deeds in Credit bill

                                                    No.2014863

 

Ex.A20 dated NIL                             Unauthorized flat photos in 2^nd floor (S3)

 

Ex.A21 dated NIL                             No way to the car parking areas (photos)

 

Ex.A22 dated 07.03.2014                 Union Bank of India, Kolathur branch

                                                    Infavour of Dhanalakshmi & co.,    

                                                    A/c.No.579901010050151

 

EX.A23  dated NIL                 Electricity Bill

 

Ex.A24 dated NIL                             Chennai Metro water supply bill

 

Ex.A25 dated 04.03.2014                 Certificate Under Section 42 of stamp Act

 

 

 

 

Ex.A26 dated NIL                             Memorandum of Deposits of Title Deeds

                                                  Bank details Amount with bank statement

                                                  details

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

Ex.B1 dated NIL                     Photographs with CD

 

 

 

MEMBER – II                                                               PRESIDENT