Tamil Nadu
South Chennai
461/2010
Vidya Nagarajan - Complainant(s)
Versus
Ramaniyam Real Estates (p) Ltd,Managing Director - Opp.Party(s)
S.Devika
10 Jan 2017
ORDER
Date of Filing : 16.09.2015
Date of Order : 05.01.2017
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3
PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M. : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.461/2010
TUESDAY THIS 10TH DAY OF JANUARY 2017
1. Vidya Nagarajan,
Flat No.9D, Block No.2,
Door No.72/I.L.B. Road,
Sanjivini Apartments,
Thiruvanmiyur,
Chennai – 41.
2. B. Viswakumar,
2062, Sobha Primrose Apartment,
Sardarj Road,
Outer Ring Road,
Belellabur,
Bangalore 560 103. ..Complainants
..Vs..
Ramaniyam Real Estates (P) Ltd.,
Rep. by it’s Managing Director,
V. Jaganathan,
21st 2nd Main Road,
Gandhi Nagar,
Adyar, Chenai – 20. ..Opposite party
For the Complainants : M/s. S.Devika & T.Mohan
For the opposite party : Exparte.
ORDER
THIRUMATHI.K.AMALA, :: MEMBER-I
This complaint is filed by the complainant against the opposite party to rectify the defects, to provide the amenities and to hand over the parent title documents etc. and to convey the deficit undivided share in the property i.e. 78.49 sq. ft to the 1st complainant and 70.65 sq ft for 2nd complainant and to pay a sum of Rs.93,129/- and Rs.76,200/- to the 1st and 2nd complainants towards liquidated damages and to return the sum of Rs.1,12,408/- and Rs.56,407/- collected towards service tax and to demolish and remove the unauthorized construction and to handover the purchase bill, etc. and to pay a sum of Rs.5,00,000/- towards compensation and Rs.5,00,000/- as damages for loss and suffering and Rs.50,000/- as cost.
1. The averment of the complaint are brief as follows:
The complainants entered into an agreement with the opposite party for construction of flats at Tiruvanmiyur, Chennai impressed by the brouchers for promotion of 126 flats with attractive feature and amenities including well equipped gymnasium, play area for children with amenities like with swing, seasaw and other play equipments, intercom facility, separate entrance for domestic and security staff, move theater, TT room, recreation club, intercom facilities between flats and security, in door association room with provision for indoor games and a generater of adequate capacity connecting common lighting, lifts, motor pump, and few light and fan points inside every flat. The deeds of sale in respect of the undivided share in the said property of the complainants were registered on 8.11.2006 and 24.11.2006. The complainants also entered into an agreement for purchase of undivided share on the understanding that the share so described was based on a proportionate division between the owners of the flats depending upon the area of their respective flats. The complainants paid the entire consideration as per the agreement. The salient features of the agreement included to construct a flat proportionate to the undivided co –owner ship in schedule A property of the agreement, to complete the flat and hand it over to the complainant within 18 months from the date of obtaining approval from the Chennai Metropolitian Development Authority and three months grace period was provided to pay liquidated damages to the complainants at the rate of Rs.6/- per sq. ft. p.m. for the delay, the flat owner was entitled to use and enjoy the premises only as a residential building and could not carry on any trade or business.
2. The opposite party also agreed to provide common amenities and facilities such as : -
a) A common board near the entrance to the building for incoming telephone line with provision for concealed wiring from this board to points in each flat to the living room and bedrooms.
b) Intercom facility between flats and security.
c) Paved and suitably landscaped common area.
d) Two lifts of reputed make in each block.
e) Children play area with amenities like swing, see-saw, slide and other play equipment.
f) An indoor association room with provision for indoor games.
g) Gymnasium with basic equipment.
f) Table tennis and billiards room with equipment and toilet facilities.
3. The opposite party also entered into similar agreement with other purchaser for sale of 126 flats. The opposite party had obtained permission from CMDA to construct basement, ground floor plus five floor in block No.1 for residential cum commercial purpose (Departmental Store) and stilt plus 11 floors in block No.2 for residential building for total number 126 dwelling units. The opposite party commenced the construction on 15.9.2005 and completed the construction and handed over the possession on 4.10.2008 for the 1st complainant and on 20.9.2008 for the 2nd complainant. The CMDA had granted sanction on 21.2.2006. According to the construction agreement the opposite party ought to have handed over the possession within the period specified in the agreement. But they failed to complete the construction within the said period and handed over possession after considerable delay. The opposite party is therefore liable to pay compensation as per clause -17 of the construction agreement calculated at the rate of Rs.6/- per sq. ft to each of the complainant as follows:
Parties to the agreement | Delay in handing over possession | Compensation payable |
First Complainant | 11months x Rs.6 x 1411sq ft. | Rs.93,126/- |
Second complainant | 10 months x Rs.6 x 1270 sq.ft | Rs.76,200/- |
4. Further the complainants were shocked to learn that the opposite party had failed to transfer the proportionate undivided share in the property to them and the other flat owners. They conveyed only the total of 55891.821 sq. ft out of total extent of 65400 sq. ft. (27.25 grounds) to the flats owners. 9508.18 sq. ft. (3.96 grounds) of the property mentioned in schedule–A has not yet been conveyed to the flat owners. The deficit in UDS conveyed is as follows:
Complainants | UDS conveyed | Deficit |
First | 461.397 sq ft. | 78.49 |
Second | 415.29 sq. ft. | 70.65. |
The opposite party also failed to provide all the amenities promised in Brochure.
- The construction of the compound wall is yet to be completed.
- The construction of the elevation art work at the entrance and the gate as promised is yet to be completed.
c) Structural drawings for electrical connections have not been handed over to the association.
d) Details of sewage and service tax have not been provided though the complainants have paid the same.
- The play area allocated is of a smaller area.
f) The play area for children is not yet complete and is unsafe for use.
g) No amenities like a swing see-saw, slide and other play equipment have been provided.
h) No intercom facility has been provided and the common board serves no useful purpose in the absence of an intercom facility.
i) The lifts provided do not contain an auto rescue device and therefore unsafe.
j) The lift is also of poor quality and there have been instances of injuries caused by sudden closing of the door.
k) The indoor association room does not contain any indoor games.
l) The construction of the toilet on the terrace is yet to be finished.
m) The equipment provided at the gymnasium is of sub standard quality and appears to be used and second hand equipment.
n) The common area has not been landscaped.
o) Carpet has not been provided in the movie theatre room.
p) There is no security door provision for entry of domestic staff.
q) The parent title documents have not been handed over to the flat owners association till date, despite of repeated requests for the same.
5. When the complainants demanded the opposite party for the deficit in the undivided share they attempted to rely upon the minutes of the meeting dated 30.11.2008 vide letter dated 11.8.2009 wherein the members are alleged to have acknowledged ownership of a portion of a land marked as the priest house and basement in the block belonging to the commercial area. The association clarified and categorically asserted in their response dated 25.8.2009 that such a drawing with the signatures of innocent buyers at the time of occupation was not binding. The opposite party vide letter dated 23.1.2010 addressed to the association stated that they still retained the single largest ownership in the project. When the association called upon vide letter dated 1.2.2010 calling upon the opposite party to prove the such a claim they failed to do so. The complainants were forced to sign the document waiving their rights to make any claim over the property which was not given to them, which has been obtained through coercion and fraud and not binding on them, for which the 1st complainant also sent emails dated 15.10.2008 and 14.11.2008.
6. The flat owners also formed an association whereas the opposite party also floated an association for the purpose of carrying out the maintenance of the building for which the flat owners agreed to pay a sum of Rs.1.50 p. per sq.ft. p.a. towards maintenance and the opposite party failed to carry out the maintenance work and the resident were subjected to hardship and suffering, proper accounts have also not been given by them for the expenses incurred and also handed over only the incomplete statement. The opposite party is liable to give proper accounts for the amount paid by them towards maintenance and they retained substantial amounts paid by them, even after the flat owners formed an association and as such they are liable to return the said amounts illegally retained by them. The opposite party also collected various amounts from the complainants towards service tax, and sewerage tax and no proof was furnished by them for payment. The opposite party also failed to provide adequate security for section the lifts were maintained in poor condition.
7. The opposite party also failed to provide the amenities promised in the brochure which is incomplete construction of the compound wall, incomplete evaluation art work at the entrances of the gate, structural drawing for electrical connection not handed over, details of service tax not provided, smaller area for play area is provided, incomplete play area for children no amenities’ for play equipments, no intercom facility lifts were unsafe and poor quality, no indoor games, construction of toilet on the terrace in complete, equipment provided in the gey of substandard quality, corporate has not been provided in the movie theater room, no security door provision for entry of domestic staff, the parent title deeds have not been handed over till date,
8. The opposite party also failed to comply with the fire safety regulation and the fire safety planned approved by the CMDA there were several deviation. In addition to the above deficiency the complainant also noticed defects in each of the flats such as Tiles were not laid properly, substandard electrical wiring, no teak wood door frame, poor quality in wood work, painting work, both room fittings reqiuremnet replacement, cracks in the walls which shows that sub-standard materials were used in construction.
9. The complainants also addressed several emails on 9.8.2009 stating the deficiency for which the opposite party also addressed to them that they would rectify their lapses. The opposite party also commenced un-authorized construction of 1800 sq. ft. portion of the premises in front of block 2 and block 3. Hence the complainant informed the statutory authority for which stop work notice dated 7.8.2009 was issued by CMDA to the opposite party. But the opposite party not demolished the unauthorized construction until date. The opposite party also permitted the restaurant at the ground floor of block 1 which was hindrance to the flat owners.
10. The opposite party also committed unfair trade practices by luring the complainants to buy the property, failed to transfer the undivided share as per the agreement, failing to complete the construction within the stipulated period, failed to pay the damages for the delay, constructing unauthorized building, failed to provide common amenities, failed to handover the parent title documents, unauthorized use of premises of car park, restaurant and gymnasium, failed to render proper account for amount paid towards service tax. Therefore the opposite party had committed deficiency in rendering services and as such the complainants are entitled for compensation towards the same. Hence the complaint is filed.
11. Inspite of receipt of notice the opposite party did not appear before this forum and therefore the opposite party was set exparte.
12. Though the opposite party remained expate this Forum wants to dispose this compliant fully on merits with available materials before this forum.
13. In such circumstances, in order to prove the allegation made in the complaint the proof affidavit is filed by the 1st complainant as evidence, and also Ex.A1 to Ex.42 are marked.
14. At this juncture the point for consideration before this Forum is:
1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?.
- To what other reliefs, the complainants are entitled for?
15. POINT No. :1
It is evidenced through Ex.A1 that the 1st complainant entered into an agreement of construction and it is also evidenced through Ex.A6 the 2nd complainant entered into an agreement of construction. Ex.A3 & A8 also reveals that the complainants entered into a deed of sale with the opposite party.
16. The facts of the case reveals that impressed by the brochure issued by the opposite party with attractive features and amenities the complainant entered into the above construction agreements and sale deed. The grievance of the complainants is that as per clause-7 of the construction agreement the opposite party ought to have handed over the possession of the flat within 18 months from the date of obtaining approval from CMDA with grace period of three months failing which the opposite party shall pay liquidated damages at the rate of Rs.6/ per sq. ft. for the delayed period. Whereas the opposite party commenced construction on 15.9.2005 and completed the construction and delivered possession only on 4.10.2008, after a prolonged delay. But the opposite party failed to pay the liquidated damages as per agreement even after demand. The complainants also raised grievance that the opposite party had not conveyed the undivided share as per the agreement and there was deficit conveyance of 78.49 sq. ft. to the 1st complainant and 70.65 sq ft to the 2nd complainant. The amenities specified in the agreement were also not provided to them, and the opposite party also commenced unauthorized construction in the undivided portion of the premises, there were also defects in the construction of the flats but all the above deficiency and defects were not rectified by the opposite party, but simply denied their grievances stating that they have no right to make any claim against the opposite party since the complainants had signed a document at the time of possession which according to the complainant was obtained by fraud and threat. Hence the complainants attribute allegations against the opposite party for deficiency in service and claim compensation for deficiency in service, to rectify the defects, to handover the parent title documents, to convey the deficit undivided share in the property, to pay the liquidated damages for delay in handing over the possession, to return the amount paid towards service tax, to demolish the unauthorized construction, to handover the purchase bill for the products purchased for common amenities and to pay compensation.
17. It is found that pending proceedings the complainants filed a Memo stating that they have given up as not pressed the claim mentioned in prayers a, e, g, i, and h. Therefore as per the Memo the complainants had given up the compensation claimed to rectify the defects in the construction and the claim over the amenities promised in the construction agreement, the amount claimed towards service tax, to demolish the unauthorized construction, to handover the purchase bill for the products purchased for common amenities and to pay compensation.
18. It reveals from the evidence of the complainants that the opposite party commenced the construction on 15.9.2005 and completed the construction and handed over the possession only on 4.10.2008 to the 1st complainant and on 20.9.2008 to the 2nd complainant after due delay. Hence the grievance of the complainants that the possession of the flats were delivered after delay of 11 months to the 1st complainant and 10 months to the 2nd complainant is admissible on perusing the clause-7 of the construction agreement i.e. Ex.A1 and Ex.A6 since the CMDA had granted sanction on 21.2.2006. As such it is seen that as per agreement the 1st complainant is entitled for liquidated damages of Rs.93,126/- and the 2nd complainant of Rs.76,200/- respectively from the opposite party for the said delay in handing over the possession.
19. The complainants also contended that the opposite party had conveyed undivided share of 461.397 sq. ft to the 1st complainant, and deficit of 78.49 sq. ft. Similarly they had conveyed 415.29 sq ft. to the 2nd complainant and deficit of 70.65 sq ft. in which the opposite party had raised unauthorized construction. Though the complainants had evidenced in the proof affidavit about the deficit UDS and submitted calculation of UDS the said evidence is not sufficient enough to prove the same. Moreover such issue involves voluminous evidence which can be decided only by the civil court and cannot be decided by this forum. As such the complainants are not entitled to claim the deficit UDS as prayed for before this forum.
20. Further the complainants also raised allegations that the opposite party had not issued the parent title deeds even after demand through letter, but the opposite party simply replied that they can only peruse the document. In respect of this issue generally the builders are duty bound to furnish the parent title deed to the flat owners. In this case since the opposite party is a builder running a large project in construction of 126 flats in the complainant’s block and several other flats in other blocks the complainants right to claim the original parent title deed to one single flat owner is not sustainable. However the opposite party ought to have furnished the certified copy of the parent title deed of the property to the complainants at the earliest point of time. Therefore it is clear that the opposite party had failed to deliver the certified copy of the parent title deed till date. Hence in view of the above facts the contention of the complainants that the opposite party committed deficiency in service is acceptable. Hence the opposite party is liable to issue certified copy of the parent title deed to the complainants at their cost.
21. However the allegations attributed against the opposite party that they failed to produce the statement of accounts with respect of amounts paid towards maintenance of the flat is not sustainable since the complainant themselves did not furnish any documentary evidence with regard to details of payment of maintenance and also agreement entered between them towards maintenance. The complainants themselves admitted the receipt of statement of account from the opposite party in regard to this issue while so in the absence of the above said documents claiming audited accounts from the opposite party is not sustainable and not maintainable before this forum. Moreover it involves enormous evidence which can be tried only Civil Court. As such the complainants are not entitled for claiming auditor accounts from the opposite party. Further the CMDA plan is also filed by the complainants themselves. As such they cannot claimed the said document from the opposite party.
22. Further the complainants attributed allegation against the opposite party that unauthorized construction were made in the undivided share allotted to them and seeking direction to demolish the unauthorized construction. The complainants contended that though the CMDA had issued stop work notice to the opposite party as per Ex.A12 the opposite party continued construction. Whereas on perusing Ex.A14 it reveals that the complainants themselves had contended that the opposite party had informed that the CMDA has given them to keep part of the unauthorized building for car parking for Ramaniyam purpose. Apart from that the issue with respect of demolition and unauthorized construction only Civil suit has to be filed. Hence the complainants are not entitled to seek this relief before this forum.
23. Whereas the opposite parties had not chosen to appear before this forum to rebut the contentions of the complainant and given any contra evidence but remained exparte. Therefore this forum can draw adverse inference.
24. Therefore considering the facts and circumstances of the case this forum, is of the view that the opposite party caused delay in handing over possession and as such the 1st complainant is entitled to a sum of Rs.93,126/- and 2nd complainant is entitled to a sum of Rs.76,200/- for liquidated damages for delay in handing over possession along with interest at the rate of 9.5.% p.a. from the date of filing of this complaint i.e. 16.9.2010 to till the date of this order i.e. 10.1.2017 and the opposite party is liable to furnish the certified copy of the parent title deed. The opposite party ought to have furnished the certified copy of the parent title deed and paid the liquidated damages for the delay in delivery of possession at the earliest point of time as per the agreement to the complainants. Whereas they failed to do so till date.
25. With respect of other reliefs claimed by the complainants, they may approach the Civil Court for the same cause of action.
26. Considering the facts and circumstances it is clear that the opposite party had committed deficiency in service and due to the above stated acts of the opposite party the complainants suffered mental agony and much hardship is also acceptable. Therefore the 1st and 2nd complainants are also entitled for compensation of Rs.50,000/- each towards mental agony. Regarding the other reliefs this complaint is dismissed. Thus the points 1 & 2 are answered accordingly.
In the result, the complaint is allowed in part. Accordingly, the opposite party is directed to furnish the certified copy of the parent title deed only and to pay a sum of Rs.93,126/- (Rupees Ninety three thousand one hundred and twenty six only) to the 1st complainant and Rs.76,200/- (Rupees Seventy six thousand and two hundred only) to the 2nd complainant respectively towards liquidated damages for delay in handing over possession along with interest at the rate of 9.5% p.a. from the date of filing of this complaint i.e 16.9.2010 to till the date of this order (10.1.2017) and also to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) to each complainants towards compensation for causing mental agony and hardship due to the deficiency of service on the part of opposite party along with cost of Rs.5000/- (Rupees Five thousand only) to the complainants. Regarding other reliefs this complaint is dismissed.
The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.
Dictated by the Member-I to the Assistant, taken down, transcribed and computerized by her, corrected by the Member-I and pronounced by us in the open Forum on this the 10th day of January 2017.
MEMBER-I MEMBER-II PRESIDENT
Complainant’s side documents:
Ex.A1- 8.3.2006 - Copy of construction agreement.
Ex.A2- 8.3.2006 - Copy of agreement for sale
Ex.A3- 8.11.2006 - Copy of Deed of Sale
Ex.A4- 30.1.2006 - Copy Final statement of accounts and the statements of
receipts.
Ex.A5- 3.10.2005 - Copy of letter for allotment of plot from the opposite party
to second complainant.
Ex.A6- 7.2.2006 - Copy of construction agreement.
Ex.A7- 7.2.2006 - Copy of agreement of sale.
Ex.A8- 24.11.2006 - Copy of Deed of Sale.
Ex.A9- 20.9.2008 - Copy of Key handing over from the opposite party to the
Complainant.
Ex.A10- - - Copy of Brochure.
Ex.A11- 30.5.2009 - Copy of letter from the opposite party to all the flat owners
Along with completion certificate issued by CMDA.
Ex.A12- 7.8.2009 - Copy of stop work notice issued by CMDA to the opposite
Party.
Ex.A13- 29.12.2009- Copy of letter from Sanjivini Welfare association to CMDA.
Ex.A14- 9.1.2010 - Copy of letter from Sanjivini Welfare association to CMDA.
Ex.A15- 17.1.2010 - Copy of letter from Sanjivini Welfare Association to CMDA.
Ex.A16- 21.1.2010 - Copy of letter from Sanjivini Welfare Association to CMDA.
Ex.A17- 23.1.2010 - Copy of reply from opposite party to Sanjivini Welfare
Association.
Ex.A18- 1.2.2010 - Copy of letter from Sanjivini Welfare Association to
opposite party calling upon them to establish proof of
ownership within the complex.
Ex.A19- 15.3.2010 - Copy of letter from Sanjivini Welfare Association to CMDA
Requesting action against the opposite party.
Ex.A20- - - Copy of the telegram sent by Sanjivini Welfare association.
To CMDA.
Ex.A21- 15.10.2008 - Copy of Email from the 1st complainant
Ex.A22- 28.4.2008 - Copy of property tax notice issued by Corporation of
Chennai.
Ex.A23- 28.4.2008 - Copy of property tax notice issued by Corporation of
Chennai.
Ex.A24- 9.6.2009 - Copy of email from Sanjivini Welfare Association to
opposite party.
Ex.A25- 9.6.2009 - Copy of email from Sanjivini Welfare Association to
opposite party.
Ex.A26- 9.6.2009 - Copy of email from Sanjivini Welfare Association to
opposite party.
Ex.A27- 9.6.2009 - Copy of email from Sanjivini Welfare Association to
opposite party.
Ex.A28- 7.7.2009 - Copy of certificate of registration issued to Sanjivini
Welfare association.
Ex.A29- 10.8.2009 - Copy of email from Sanjivini Welfare association to
Opposite party.
Ex.A30- 10.8.2009 - Copy of email from opposite party to Sanjivini Welfare
association.
Ex.A31- 10.8.2009 - Copy of email from Sanjivini Welfare Association to
opposite party.
Ex.A32- 11.8.2009 - Copy of email from opposite party to Sanjivini Welfare
Association.
Ex.A33- 26.8.2009 - Copy of email from opposite party to Sanjivini Welfare
Association.
Ex.A34- 27.8.2009 - Copy of email from Sanjivini Welfare Association to
Opposite party.
Ex.A35- 28.8.2009 - Copy of email from Sanjivini Welfare Association to
Opposite party.
Ex.A36- 31.8.2009 - Copy of email from opposite party to Sanjivini Welfare
Association.
Ex.A37- 1.3.2010 - Copy of email from Sanjivini Welfare association to
Mr. Kannan.
Ex.A38- 14.3.2010 - Copy of letter from Sanjivini Welfare Association to CMDA.
Ex.A39- 5.8.2010 - Copy of letter from Sanjivini Welfare Association to CMDA.
Ex.A40- - - Copy of photos.
Ex.A41- 26.5.2006 – Copy of CMDA sanctioned plan.
Ex.A42- - - Copy of UDS Statement.
Opposite party’s side documents: .. Nil.
MEMBER-I MEMBER-II PRESIDENT
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