Tamil Nadu

South Chennai

CC/137/2014

N.Prabakaran - Complainant(s)

Versus

Rajeshwari Infrastructure Ltd., - Opp.Party(s)

Party in person

11 Jun 2019

ORDER

                                                                        Date of Filing  : 17.01.2014

                                                                          Date of Order : 11.06.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

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

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.137/2014

DATED THIS TUESDAY THE 11^TH DAY OF JUNE 2019

                                 

N. Prabakaran,

S/o. Mr. C.M. Natarajan,

No.12/14, Srinivasa Street,

Kadapery,

Tambaram West,

Chennai – 600 045.                                                        .. Complainant.                                              

                                                                                               ..Versus..

1.  The Managing Director,

M/s. Rajeswari Infrastructure Ltd.,

No.18/23, 2^nd Cross Street,

East CIT Nagar,

Nandanam,

Chennai – 600 035.

 

2. The Manager,

M/s. Rajeswari Infrastructure Ltd.,

No.18/23, 2^nd Cross Street,

East CIT Nagar,

Nandanam,

Chennai – 600 035.                                                 ..  Opposite parties.

 

For the complainant                                : Party in person

Counsel for the opposite parties 1 & 2  : M/s. Ravindranath Singh &

                                                                   others

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.1,00,000/- towards compensation for mental agony with subsequent interest at the rate of 18% p.a. and cost to the complainant.

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

The complainant submits that on seeing the advertisement of the opposite parties, entered into a Builders Agreement dated:25.05.2010 for purchasing a flat in IBIS fields Flat No.C1F1 for a sum of Rs.22,50,000/- excluding extra charges for registration, additional civil construction charges, service tax etc.   As per the Builders’ Agreement, the possession shall be delivered within 12 months that is on or before 25.05.2013.   But the opposite parties delivered possession only on 15.03.2014.  Thereby, there is a delay of more than 10 months in handing over the possession of the flat to the complainant.  The complainant is claiming a sum of Rs.12,000/- per month towards rental amount.   The complainant submits that the opposite parties have used low quality of wood for construction and some materials used for loft also very bad.  The complainant has rectified the defects by expending a sum of Rs.9,000/-.  The complainant submits that the opposite parties wantonly and deliberately delayed the construction and delivered the possession of the apartment and claimed huge amount for a sum of Rs.50,000/- for delayed payment, a sum of Rs.34,468/- towards extra work, Rs.70,621/- towards Service Tax, a sum of Rs.7,400/- towards deposit for electricity board. Totally a sum of Rs.24,13,489/- and  the complainant has paid a sum of Rs.20,25,900/- on the subsequent dates including payment of Rs.34,468/- towards extra work.  The complainant submits that the claim of Rs.50,000/- toward delayed payment by the opposite party.    The act of the opposite parties 1 & 2 amounts to deficiency in service and unfair trade practice which caused great mental agony.   Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite parties 1 & 2 is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.    The opposite parties state that the complainant was entered into a Builder Agreement on 25.05.2012 to purchase a flat C1F1 in IBIS measuring 369 sq. ft. undivided share with 667 sq. ft. flat for a sum of Rs.22,51,000/-.  The complainant is a chronic defaulter in payment.  Due to shortage of materials, and scarcity of labour the construction was delayed.  As per the clause 15 of the Builder’s Agreement, the opposite parties cannot have every right to charge interest for delayed payments.  The opposite parties state that the delay in construction and handing over possession is neither wilful nor wantonly done.   After due effort, the building was duly constructed and handed over the possession to the complainant in a good condition.  The complainant has not raised any objection regarding the nature of construction and materials used.  The allegation that the low quality wood and poor quality of loft is used in the construction is imaginary and cannot be accepted.  As per the construction agreement immediately after taking possession of the apartment within 7 days objection should be made related to defect in construction, quality of materials used shall be intimated to the opposite parties and the complainant has not stated anything about the nature of construction to the opposite parties.  At the request of the complainant, the opposite parties have constructed extra work to the tune of Rs.34,468/- which was paid by the complainant.  The opposite parties state that the claim amount of Rs.12,000/- towards rental amount due to delay in handing over the apartment is unsustainable and is against the Construction Agreement.   The opposite parties state that the value of the flat is of Rs.22,51,000/-. The complainant has paid a only a sum of Rs.19,91,432/-.  The complainant has not paid a sum of Rs.2,59,568/-.  The complainant has to pay service tax and EB deposit also as per the Builders’ Agreement, for the delayed payment, the complainant has to pay sum of Rs.50,000/-.  Therefore there is no deficiency in service on the part of the opposite parties and the complaint has to be dismissed.

3.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A11 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 to Ex.B5 are marked on the side of the opposite parties 1 & 2.

4.      The points for consideration is:-

1. Whether the complainant is entitled to reimburse a sum of Rs.9,000/- towards rectifying the defects by way of good quality of wood and loft construction and a sum of Rs.12,000/- per month towards rental amount paid by the complainant due to the delay in handing over possession or alternatively to pay the total amount of paid for the flat of Rs.22,84,468/- along with interest, Rs.50,000/- towards registration charges as prayed for?
2. Whether the complainant is entitled to the compensation of Rs.5,00,000/- towards mental agony negligence, financial loss and cost of Rs.25,000/- as prayed for?

5.      On point:-

The opposite parties have not filed any written argument and not turned up to advance any oral argument also. The complainant filed his written argument and advanced his oral argument.  Perused the records namely; the complaint, written version, proof affidavits and documents.   The complainant has pleaded and contended that on seeing the advertisement of the opposite parties entered into a Builders Agreement dated:25.05.2010 for purchasing a flat in IBIS fields Flat No.C1F1 for a sum of Rs.22,50,000/- excluding extra charges for registration, additional civil construction charges, service tax etc.  Ex.A3 is the copy of Builders’ Agreement between the complainant and the opposite parties.  As per the Builders’ Agreement, the possession shall be delivered within 12 months that is on or before 25.05.2013.   But the opposite parties delivered possession only on 15.03.2014.  Thereby, there is a delay of more than 10 months in handing over the possession of the flat to the complainant.  The complainant is claiming a sum of Rs.12,000/- per month towards rental amount.   But on a careful perusal of Builders’ Agreement, Ex.A3, there is no such stipulated conditions.  Hence, the complainant is not entitled to claim any amount towards rent for delay in handing over possession.   

6.     Further the contention of the complainant is that the opposite parties have used low quality of wood for construction and some materials used for loft also very bad.  The complainant has rectified the defects by expending a sum of Rs.9,000/-. But the complainant has miserably failed to prove such expenditure by way of filing relevant documentary evidence. The complainant also has not taken any steps to prove for the defective construction as alleged.   Further the contention of the complainant is that the opposite parties wantonly and deliberately delayed the construction and delivered the possession of the apartment and claimed huge amount for a sum of Rs.50,000/- for delayed payment, a sum of Rs.34,468/- towards extra work, Rs.70,621/- towards Service Tax, a sum of Rs.7,400/- towards deposit for electricity board. Totally a sum of Rs.24,13,489/-.  On the other hand, the complainant has paid a sum of Rs.20,25,900/- on the following dates including payment of Rs.34,468/- towards extra work.  Further the contention of the complainant is that the claim of Rs.50,000/- toward delayed payment by the opposite party; is not acceptable because, without any delay the complainant has paid a sum of Rs.19,91,432/- a balance amount of Rs.2,59,568/- alone is due.  The complainant has to pay service tax, and Electricity Board deposit proves that the complainant is a defaulter. The law is well settled that the defaulter cannot entertain any consumer complaint.

7.     The contention of the opposite parties is that the complainant was entered into a Builder Agreement on 25.05.2012 to purchase a flat C1F1 in IBIS measuring 369 sq. ft. undivided share with 667 sq. ft. flat for a sum of Rs.22,51,000/-.  The complainant is a chronic defaulter in payment.  Due to shortage of materials, and scarcity of labour the construction was delayed.  As per the clause 15 of the Builder’s Agreement, the opposite parties cannot have every right to charge interest for delayed payments.  Further the contention of the opposite parties is that the delay in construction and handing over possession is neither wilful nor wanton.  After due effort, the building was duly constructed and handed over possession to the complainant in a good condition. The complainant has not raised any objection regarding the nature of construction and materials used.  The allegation that the low quality wood and poor quality of loft is used in the construction is imaginary and cannot be accepted.  As per the construction agreement immediately after taking possession of the apartment within 7 days any objection should be made related to defective construction, quality of materials used shall be intimated to the opposite parties.  In this case, the complainant has not whispered anything about the nature of construction.  On the other hand, at the request of the complainant, the opposite parties have constructed extra work to the tune of Rs.34,468/- which was paid by the complainant.   

8.     Further the contention of the opposite parties is that the claim amount of Rs.15,000/- towards rental amount due to delay in handing over the apartment is unsustainable and is against the Construction Agreement.   Further the contention of the opposite parties is that admittedly, the value of the flat is of Rs.22,50,000/-. The complainant has paid a only a sum of Rs.19,91,432/- as per Ex.A4 to Ex.A9.  The complainant has not paid a sum of Rs.2,59,568/-.  The complainant has to pay service tax and EB deposit also as per the Builders’ Agreement, for the delayed payment, the complainant has to pay sum of Rs.50,000/-.  But on a careful perusal of records, the opposite party has not been specifically pleaded and proved the delay and interest towards for the delay.  On the other hand, the complainant has paid Rs.19,91,432/- without any substantial delay, with a balance of Rs.2,59,568/-. Considering the facts and circumstances of the case, this Forum is of the considered view that this complaint has to be dismissed.

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

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 11^th day of June 2019. 

 

MEMBER                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	18.12.2013	Copy of formal notice provided to builder before filing the complaint
Ex.A2	20.12.2013	Copy of notice to the builder acknowledgement due
Ex.A3	25.05.2012	Copy of Builders Agreement between the complainant and opposite parties
Ex.A4	09.05.2012	Copy of bill No.2499
Ex.A5	19.05.2012	Copy of bill No.2504
Ex.A6	19.05.2012	Copy of bill No.2505
Ex.A7	14.07.2012	Copy of bill No.2525
Ex.A8	20.03.2013	Copy of bill No.2657
Ex.A9	15.11.2013	Copy of bill No.2791
Ex.A10	08.07.2013	Copy of Additional work bill invoice
Ex.A11	13.01.2014	Copy of authorization letter by the complainant

 

OPPOSITE PARTIES 1 & 2 SIDE DOCUMENTS:-

Ex.B1	25.05.2012	Copy of the Builder’s Agreement
Ex.B2	12.07.2012	Copy of the email sent to the complainant by the opposite parties
Ex.B3	29.05.2013	Copy of the email sent to the complainant by the opposite parties
Ex.B4	08.07.2013	Copy of Invoice estimation
Ex.B5	28.05.2012	Copy of the measurement with regard to loft measurement copy given by the complainant

 

 

 

MEMBER                                                                                PRESIDENT