Tamil Nadu

South Chennai

273/2010

B.Chakrapani - Complainant(s)

Versus

Ramaniyam Real Estate Pvt Ltd., & other - Opp.Party(s)

V.Yurendrakumar

06 Jun 2016

ORDER

                                                                      Date of Filing :   29.06.2010

                                                                      Date of Order :   06.06.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

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

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

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

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

 

C.C.NO.273/2010

MONDAY THIS  6^TH  DAY OF JUNE 2016

B. Chakrapani,

AK – 50 C2 VII Main Road,

Anna Nagar,

Chennai – 40.                                              ..Complainant

 

                                         ..Vs..

 

1.  Ramaniyam Real Estates Pvt. Ltd.,

By its Managing Director,

V. Jaganathan,

“Sruthi” 21, 2^nd Main Road,

Gandhi Nagar,

Chennai – 20.

 

2. V. Jaganathan,

Managing Director,

M/s. Ramaniyam Real Estate Pvt. Ltd.,

Sruthi, No.21,

2^nd Main Road,

Gandhi Nagar,

Chennai – 20.                                          ..Opposite parties   

 

 

For the Complainant                    :   M/s. Arya Raj.      

For the opposite parties               :   M/s. R.Usha Priya  

 

Complaint under section 12 of the Consumer Protection Act 1986.  The  complaint is filed seeking direction against the opposite parties to hand over the possession of the flat  and also to pay a sum of Rs.5,00,000/- as compensation for the deficiency in service and to pay a sum of Rs.10,00,000/- for mental agony and Rs.2,00,000/- for unfair trade practice and to pay Rs.50,000/- as costs of the complaint.  

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

        The complainant submit that the complainant’s father deceased C. Boopathy was the owner of the flat, in the complaint mentioned premises.    While the said deceased C.Boopathy was alive along with his flat owners in the said premises have entered into a Memorandum of agreement  with the opposite parties which is the private limited company doing construction and building promoter business, dated 09.03.2005 and also  a separate Memorandum of agreement  was entered into between the deceased C.Boopathy and the opposite party company, dated 15.03.2006.  According to the said agreements the opposite parties for development of Dwaragha Colony into a multi stories residential complex in pursuant to the Memorandum of understanding out of the total 54 land owners of Dwaragha colony,  45 of them  who were in interested in joint development of the property entered into joint development agreement.  Accordingly the opposite party obtained approval from the CMDA and from the Corporation of Chennai   dated 29.03.2007.     Further as agreed to develop 75 flats and 45 flats were allotted to the owners and the allotment was made in the specific joint development agreement and was enclosed as schedule B giving details of the present door no, flat no, terrace area, and area for development cost of the flat to be borne by the owners, cost of the terrace and additional cost and total cost borne by the respective owners in the proposed constructions and the owners have also concerted to it.   Accordingly the complainant’s deceased father name  C.Boopathy and the proposed flat  no. and the particulars of payment of additional cost and the monthly rent to be paid and the deposit made to them for the same.  The said deceased  C.Boopathy also executed a registered general Power of Attorney dated 12.07.2006 in favour of one M.Chadru the authorized person of the opposite party company as agreed in the agreement.  The said complainant’s father C.Boopathy  was  deceased subsequent to the date of above said agreement  by executing registered will dated 22.06.2005, in bequeathing the said property to his wife sons and daughter namely B.Rukmani, B. Jayaprakesh, B. Logiah, B. Charakarapani (Complainant herein) and B. Suseela.  The  complainant was also obtained the order of Probate from the Hon’ble High Court,  dated 06.08.2009.     Therefore as per the said agreement, the complainant’s father was proposed to be allotted to be flat No.45E and additional cost  to be paid by him to the opposite party is mentioned as Rs.50,000/-.   Further the complainant submit that the opposite party agreed to pay Rs.5000/- per month to the owner of the flat, from the date taking of vacant possession of the flat till the date of handing over the new construction of the flat and also to pay a sum of Rs.30,000/- as security deposit refundable without interest towards the payment of monthly rent.  

2.     The opposite parties has not completed the construction of the flat and not handed over the same, and monthly rent of Rs.5000/- agreed to be paid by the opposite parties was not paid due to death of the deceased father of the complainant though it was informed  in time, which amounts to deficiency of service on the part of the opposite parties which caused mental agony and hardship to the complainant.   As such the complainant has sought for claiming to pay a sum of   Rs.5,00,000/- as compensation for the deficiency in service and to pay a sum of Rs.10,00,000/- for mental agony and Rs.2,00,000/- for unfair trade practice and to pay Rs.50,000/- as costs of the complaint. 

Written Version of opposite parties are  in briefly as follows:

3.     The opposite parties denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   It is true that the monthly rents are to be paid from  07.07.2007 to  July’2009 which is the date of flat made ready for delivery instead of till the date of delivery of the flat as claimed by the complainant which has not been paid due to non production of necessary Probate orders and legal document and not executing the fresh Power of Attorney by the complainant in respect of the share of UDS of 50% of the land which was agreed in the agreement in favour of the authorized person of the complainant in order to sell the remaining flats constructed by the opposite party to proposed purchaser, since the said power of attorney already executed  by the deceased C.Boopathy was expired on the event of his death.  The complainant has also not paid the remaining balance of the additional construction cost of Rs.50,000/- and the service tax to be paid to the authorities and Rs.12,000/- for maintenance charges for the said flat  to be paid from the date of completion of construction of the flat owners association as agreed in the development agreement.  The complainant being a defaulter in making the above payment to the opposite party alleging the allegations against the  opposite parties.  The opposite parties  further submit  that the complainant having not come forward to make above said payments to the opposite party and to take delivery which was made ready in the month of July 2009, the complaint filed by the complainant is not maintainable   and liable to be dismissed. 

4.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A16 were marked on the side of the complainant.   Proof affidavit of  Opposite parties filed and Ex.B1 to Ex.B19 were marked on the side of the  opposite parties.   

5.      The points that arise for consideration are as follows:-

               1. Whether the opposite party is liable to pay monthly rental

               charges till the date of delivery of possession of flat or till

               the date of completion of construction of flat and ready to

               handover  the possession?

 

2.   Whether the opposite party has committed  Deficiency of service  as alleged  by the complainant in the complaint?

 

3.   Whether the complainant is entitled to the relief                    sought for in the complaint, if so to what extent?

 

 

 

6.      POINTS 1 to 3 :

        Perused the complaint and the proof affidavit filed by the complainant and the documents Ex.A1 to A16 and the written version and proof affidavit and the documents Ex.B1 to B19  filed by the opposite parties and considered the both side case.

7.   There is no dispute, that the complainant’s father deceased C. Boopathy was the owner of the flat, in the complaint mentioned premises.    While the said deceased C.Boopathy was alive along with his flat owners in the said premises have entered into a Memorandum of agreement Ex.B1 with the opposite parties which is the private limited company doing construction and building promoter business, dated 09.03.2005 and also a separate Memorandum of agreement Ex.B2 was entered into between the deceased C.Boopathy and the opposite party company, dated 15.03.2006.  According to the said agreements the opposite parties for development of Dwaragha Colony into a multi stories residential complex in pursuant to the Memorandum of understanding out of the total 54 land owners of Dwaragha colony,  45 of them  who were in interested in joint development of the property entered into joint development agreement.  Accordingly the opposite party obtained approval from the CMDA and from the Corporation of Chennai    dated 29.03.2007.  Further as agreed to develop 75 flats and 45 flats were allotted to the owners and the allotment was made in the specific joint development agreement and was enclosed as schedule B giving details of the present door no, flat no, terrace area, and area for development cost of the flat to be borne by the owners, cost of the terrace and additional cost and total cost borne by the respective owners   in the proposed constructions and the owners have also concerted to it.  Accordingly   the complainant’s deceased father name C.Boopathy and the proposed flat  no. and the particulars of payment of additional cost and the monthly rent to be paid and the deposit made to them for the same  are all mentioned in the said Ex.B2 annexure in serial no. 25.  The said deceased  C.Boopathy also executed a registered general Power of Attorney dated 12.07.2006 in favour of one M.Chadru the authorized person of the opposite party company as agreed in the agreement.

8.     The said complainant’s father C.Boopathy  was  deceased subsequent to the date of above said agreement  by executing registered  will dated 22.06.2005, in bequeathing the said property to his wife sons and daughter namely B.Rukmani, B. Jayaprakesh, B. Logiah, B. Charakarapani (Complainant herein) and B. Suseela.  The  complainant was also obtained the order of Probate from the Hon’ble High Court,  dated 06.08.2009  as a Executor as per the Ex.A1.

 

9.     Therefore as per the said agreement, the complainant’s father was proposed to be allotted to be flat No.45E and additional cost  to be paid by him to the opposite party is mentioned as Rs.50,000/-. Further as per Ex.A2 Memorandum of Agreement in clause-8 it is mentioned, that

“the OWNERS has already executed Powers of Attorney for the purpose of conveying the 50% share of the land in favour of the nominees of the DEVELOPER as per clause above and which the DEVELOPER can make use of depending on the area actually made available of the DEVELOPER”

and as per clause-7 of Ex.A2 agreement the flat owner / the deceased C.Boopathy is agreed to pay additional cost and also to pay service taxes to the opposite party.  It is also pertinent to mention that the opposite party agreed to pay Rs.5000/- per month to the owner of the flat, from the date of taking of vacant possession of the flat till the date of handing over the new construction of the flat and also to pay a sum of Rs.30,000/- as security deposit refundable without interest towards the payment of monthly rent.    

10.    The grievance raised by the complainant in this complaint is that the opposite parties has not completed the construction of the flat and not handed over the same, and monthly rent of Rs.5000/- agreed to be paid by the opposite parties was not paid due to death of the deceased father of the complainant though it was informed in time, which amounts to deficiency of service on the part of the opposite parties which claims relief of delivery of completed construction flat and with compensation. 

11.    Whereas the opposite party has resisted the complaint by saying that there is no deficiency of service on the part of the opposite parties. Further, admitting that  the monthly rents are to be paid from  07.07.2007 to  July’2009 which is the date of flat made ready for delivery instead of till the date of delivery of the flat as claimed by the complainant which has not been paid due to non production of necessary Probate orders and legal document and not executing the fresh Power of Attorney by the complainant in respect of the share of UDS of 50% of the land which was agreed in the agreement in favour of the authorized person of the complainant in order to sell the remaining flats constructed by the opposite party to proposed purchaser, since  the said  power of attorney already executed  by the deceased C.Boopathy was expired on the event of his death.   The complainant has also not paid the remaining balance of the additional construction cost of Rs.50,000/- and the service tax to be paid to the authorities and Rs.12,000/- for maintenance charges for the said flat  to be paid from the date of completion of construction of the flat owners association as agreed in the development agreement Ex.A2.    The complainant being a defaulter in making the above payment to the opposite party alleging the allegations against the  opposite parties and filing this complaint is not maintainable and is liable to be dismissed.  And further contended by the opposite parties that the complainant having not come forward to make above said payments to the opposite party and to take delivery which was made ready in the month of July 2009, the complaint filed by the complainant is not maintainable   and liable to be dismissed.       

12.    Considering the above both side contention the actual dispute between the parties are only with regard to the period for which the rental compensation of Rs.5000/- per month, regarding the payment of service taxes insisted to be paid by the opposite parties and the maintenance charges of Rs.12,000/- asked by the opposite parties to be paid to the flat owners association by the complainant.  Because the complainant also agreed to pay Rs.50,000/- as additional construction cost to the opposite parties as mentioned in the development agreement Ex.A2. 

13.    As per the development agreement Ex.A2 the rental compensation of Rs.5000/- per month is agreed by the opposite party to pay from the date of taking over the vacant possession of the  old flat i.e. dated 07.07.2009  till the date of handing over of the newly constructed proposed flat.  Whereas as per the opposite party’s letter Ex.A8, dated  09.07.2009, it is mentioned and informed to the complainant  that the building is now completed in all aspects and CMDA certificate also was got and the  owners / clients have started taking possession of the flat for occupation.  Further the copy of the construction completion certificate issued by  CMDA, dated 25.06.2009 was also filed as Ex.B7.   Therefore as per the letter of communication between the complainant and opposite parties filed on the side of complainant Ex.A2 to  Ex.A16 were also prove that the request made by the opposite party for production of probate order in respect of the alleged will executed by deceased C.Boopathy and also requesting for execution of fresh Power of Attorney in respect of the 50% of common share in favour of the opposite party company from the complainant which has not been complied by the complainant’s side are proved.  Further as contended by the opposite party due to non compliance of the above requests which is required for the legal purpose which was caused the opposite party for the non-payment of  monthly rental compensation to the complainant is acceptable.  Further even the flat was made ready after construction from the month of July 2009, the complainant have not come  forward to make the additional cost of Rs.50,000/- and the sum of Rs.1,81,000/- towards the service charges to be paid to the authorities as per agreement, despite of their promise that though the appeal prepared in respect of the same is pending, and if the payment of service charges need not be paid to the authorities it will be returned back to the complainant and also the payment of Rs.12,000/- to be paid by the complainant towards the maintenance charges to the association.    For the said non compliance on the part of the  complainant  in making above said  payment and taking delivery of the flat, despite of the request made by the opposite parties is of the fault of the complainant alone.  Therefore as contended by the opposite parties, the opposite parties are liable to pay monthly rental compensation at the rate of Rs.5000/- from July 2007 to  July 2009 only is acceptable as proper.  If such amount is calculated it will be 5000 x 25 =Rs.1,25,000/-.  Therefore we are of the considered view that the opposite parties is liable to pay a sum of Rs.1,25,000/- only to the complainant towards the rental compensation, after deducting a sum of Rs.30,000/- which has been received as  security deposit i.e is Rs.95,000/- only.   Whereas the complainant is  liable to pay a sum of Rs. 1,81,000/- towards service tax, with subject to the condition   as agreed by the opposite parties that if the said amount is not liable to be paid to the authority concerned it will be returned back to complainant by the opposite parties.  The complainant is also liable to pay a sum of Rs.50,000/- as additional construction charges  to the opposite parties.  The maintenance charge of Rs.12,000/- claimed by the opposite parties is to be paid by the complainant to the flat owners association.  The  complainant is also liable to execute the fresh Power of Attorney  for the 50% of the common share of the UDS of the land in favour of the authorized person of the company. 

 

14.    Therefore we are of the considered view that there is no deficiency of service on the part of opposite parties as alleged by the complainant in the complaint, even in respect of the non-payment of monthly compensation due to be paid by the opposite parties to the complainant as discussed above.  Whereas the complainant have been not come forward to make necessary payment to the opposite party and take delivery of the flat as discussed above, hence  claiming compensation against the opposite party is not sustainable.  However in order to resolve the dispute between the parties in the interest of justice, we are of the considered view that on payment of a sum of Rs.1,81,000/- (towards service tax, subject to the condition in the event of the said amount not liable to be paid to the opposite party as per the order in pending appeal in the authorities will be refundable to the complainant), Rs.50,000/- towards additional construction charges  and Rs.12,000/- towards maintenance charges to be payable to the flat owners association totaling Rs.2,43,000/- after deducting the  balance rental compensation due to be paid by the opposite party to the complainant a sum of Rs. 95,000/- i.e (Rs.2,43,000 – 95000/- = 1,48,000/-) and also on giving the  fresh registered Power of Attorney in respect of the 50% of the common UDS share in the property executed by complainant in favour of authorized person of the company as agreed in the Ex.A2 agreement, the opposite parties is to handover the completed construction of the flat to the complainant as mentioned in the Ex.A2.   The parties are directed to bear their own costs.  Accordingly the points  1 to 3 are answered. 

        In the result, this complaint is partly allowed, the opposite parties are jointly and severally directed to handover the completed constructed flat mentioned in  B Schedule  particulars of the annexure in serial No.25 of the Ex.A2 agreement to the complainant on the receipt of the registered deed  of Power of Attorney executed by the legal heirs of  deceased C.Boopathy in respect of the share of the UDS in the 50% of the land, and  on receipt of a sum of Rs.1,48,000/-  from the complainant, (subject to the condition that if the  service tax of Rs.1,81,000/- is not liable to be paid to the authorities,  the said amount of Rs.1,81,000/- should be returned back to the complainant by the opposite parties) and a sum of Rs.12,000/- (Rupees twelve thousand only) towards maintenance charges to be paid to the  said flat owners association.   No costs.

            Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  6^th   day  of  June   2016.

 

 

MEMBER-I                 MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 22.6.2005  - Copy of Will.

Ex.A2- 16.8.2007  - Copy of complainant’s letter.

Ex.A3- 18.8.2009  - Copy of opposite parties reply.

Ex.A4- 23.8.2007  - Copy of legal notice to opposite parties & Chandru.

Ex.A5- 27.8.2007  - Copy of opposite parties reply.

Ex.A6- 9.12.2007  - Copy of complainant’s rejoinder.

Ex.A7- 6.12.2008  - Copy of notice to secretary of association.

Ex.A8- 9.7.2009    - Copy of opposite parties letter.

Ex.A9- 14.7.2009  - Copy of opposite parties letter.

Ex.A10- 25.7.2009         - Copy of complainant’s letter.

Ex.A11- 22.10.2009- Copy of legal notice.

Ex.A12- 26.10.2009- Copy of opposite parties reply.

Ex.A13- 19.12.2009- Copy of complainants’ letter.

Ex.A14- 20.2.2010  - Copy of legal notice.

Ex.A15- 25.2.2010  - Copy of opposite parties reply.

Ex.A16- 16.3.2010         - Copy of complainant’s rejoinder.

 

 

Opposite parties’ Exhibits:-         

 

Ex.B1- 9.3.2005     - Copy of Memorandum of understanding.

Ex.B2- 15.3.2006   - Copy of agreement.

Ex.B3- 30.3.2007   - Copy of Development agreement.

Ex.B4- 14.12.2007 – Copy of letter.

Ex.B5-   -              - Copy of Extract from Town Survey land register.

Ex.B6- 12.3.2009     - Copy of Receipt.

Ex.B7- 25.6.2009     - Copy of completion certificate.

Ex.B8- 2.7.2009       - Copy of Handing over agreement.

Ex.B9- 9.7.2009       - Copy of Letter by 1^st opposite party. 

Ex.B10-10.7.2009     - Copy of letter by 1^st opposite party

Ex.B11-10.7.2009     - Copy of letter by 1^st opposite party.

Ex.B12- 20.8.2009    - Copy of receipt.

Ex.B13- 20.8.2009    - Copy of Handing over agreement.

Ex.B14- 28.8.2009    - Copy of letter.

Ex.B15- 28.8.2009    - Copy of receipt.

Ex.B16- 29.8.2009    - Copy of handing over agreement.

Ex.B17- 1.9.2009      - Copy of receipt.

Ex.B18- 29.10.2009   - Copy of letter by 1^st opposite party.

Ex.B19- 23.12.2009  - Copy of order passed by the Commissioner of service tax.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.