Tamil Nadu

StateCommission

CC/86/2017

Saroja jayaraman - Complainant(s)

Versus

Real value promoters (p) ltd,rep by its authorised signatories & anr - Opp.Party(s)

G.B.Sabaridas-complt

13 Oct 2022

ORDER

Date of filing : 10.04.2017

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:       Hon’ble THIRU. JUSTICE R. SUBBIAH              :    PRESIDENT

                     THIRU. R VENKATESAPERUMAL                     :   MEMBER

 

C.C. No.86/2017

DATED THE 13^th DAY OF OCTOBER 2022

 

Dr. Saroja Jayaraman,

W/o. Late Jayaraman,

No.613, RWD, “Elysium Apartments”,

Malaiappa Mudali Street,

Kelambakkam,

Kanchipuram District.                                                                           .. Complainant

- Versus –

 

 

1.  M/s. Real Value Promoters (P) Ltd.,

Represented by its Authorised Signatories,

Mr. M. Manohar & Mr. K. Srinivasan,

“AMARASRI”, No.455, Anna Salai,

•  

Chennai – 600 018.

 

2.  Mr. V.S. Suresh,

Chairman & Managing Director,

M/s. Real Value Promoters (P) Ltd.,

No.17/1, Poes Road, 2^nd Street,

•  

Chennai – 600 018... Opposite Parties

 

Counsel for the Complainant        :  M/s. G.B. Sabaridas

Counsel for the Opposite parties :  M/s. A. Palaniappan

                       

This complaint came before us for hearing on 13.10.2022 and on hearing the arguments of the counsel for both parties and on perusing the material records, this Commission made the following in the Open Court:-

O R D E R

R.SUBBIAH J., PRESIDENT  (Open Court)

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

1. To refund a sum of Rs.16,63,448/- with interest at the rate of 8% p.a. from 22.03.2013 to 31.03.2017;
2. To pay a sum of Rs.3,00,000/- towards compensation for deficiency in service and unfair trade practice which caused mental agony and stress to the complainant;
3. To pay the cost of the complaint.

 

2.         The gist of the Complaint averments are as follows: 

The case of the complainant is that during her life time, her husband Mr. Jayaraman booked a flat / apartment bearing No.11 C in the 11^th Floor in Block-1of residential complex ‘Neel Kamal’ with a super built-up area of 510 sq. ft. with proportionate undivided share of 163 sq. ft. in the land bearing Survey No.101/1 at Kazhipattur Village, Muttukadu Panchayat, Chengalpet Taluk, Kancheepuram District.  In this regard, an Agreement for Project Promotion and Construction was entered between the opposite parties and complainant on 06.10.2010.  In furtherance to the said Agreement, the complainant had purchased a proportionate land of undivided share of 163 sq. ft. through Sale Deed dt.23.11.2012 vide reg. doc. No.11556/2012 in SRO-Thiruporur from the opposite parties.  The Original document of Sale Deed was retained by the opposite parties.   The complainant was prompt in making payment as and when demand was made by the opposite parties.  The complainant paid a sum of Rs.16,36,448/-, which was 97% of the total cost of the flat and on 28.05.2013, Rs.27,000/- towards Diesel Genset Provision (Generator) and Vitrified Tiles to the opposite parties were paid.  As per the Construction Agreement, the opposite parties ought to have handed over the possession of the flat within 36 months from the date of agreement.   Therefore, the opposite parties should handover the flat on or before 21.03.2013 to the complainant.   But till date, the project is still under construction and incomplete stage with no activity.   The opposite parties were failed to pay the liquidated damages as agreed by them at the rate of 5/- per sq. ft. per month for the delayed delivery of flat to the complainant pursuant to clause-5(ii) of the agreement.  Thus, the opposite parties have deliberately committed deficiency in service by non-delivering the flat as promised and also failed to pay the agreed compensation of Rs.5/- per sq. ft.   Inspite of payment of cost for UDS in the land by the complainant, the opposite parties are illegally holding the original Sale Deed dt. 23.11.2022 in their custody.   The complainant is a Senior citizen aged about 78 years and she lost all hopes for possession and enjoyment of the flat during her life time and she is put to undue hardship, mental agony, depression and loss due to the act of the opposite parties.   Hence on 24.02.2017, the complainant sent a legal notice to the opposite parties but the opposite parties have not chosen to sent any reply.   Hence, alleging deficiency of service on the part of the opposite parties, he has filed the complaint claiming the reliefs stated supra.

 

3.         Resisting the same, counsel appearing for the opposite parties has filed a version stating that they are reputed developer, developing real estate properties including residential, commercial and software parks in the city of Chennai for the past 20 years.  The opposite parties in their written version have stated that the complainant and her husband Mr. Jayaraman booked a flat / apartment bearing No.11 C in the 11^th Floor in Block-1of residential complex ‘Neel Kamal’ with a super built-up area of 510 sq. ft. with proportionate undivided share of 163 sq. ft. in the land bearing Survey No.101/1 at Kazhipattur Village, Muttukadu Panchayat, Chengalpet Taluk, Kancheepuram District.  The total cost of the complainant’s flat is Rs.16,87,060/-.  But at the time of registering the undivided share of 163 sq. ft. of land, the complainant has paid only a sum of Rs.16,36,448/- and there is an outstanding of Rs.50,612/-.  Hence, the opposite parties have promised the complainant that the flat will be handed over to her after the payment of the entire amount of Sale Consideration.  Further, the purchasers ask for more facilities and features which are not part of the earlier agreement and it is the bounden duty of the opposite parties to intimate all the intended purchasers and ask for additional charges if they opt for such facilities.   Inspite of the non-payment of full sale consideration, the complainant’s flat is also completed and the same is also duly intimated to the complainant vide letter dt. 28.10.2015.  Without settling or paying the entire sale consideration, the complainant has no locus standi to claim compensation.   Therefore, there is no deficiency in service on the part of the opposite parties.  Hence, the opposite parties sought for dismissal of the complaint.

4.         In order to prove the case, on the side of the complainant, along with proof affidavit, 7 documents have been filed and marked as Ex.A1 to Ex.A7.   On the side of the opposite parties, proof affidavits have been filed by the opposite parties and 7 documents were marked as Ex.B1 to Ex.B7.

5.         Points for consideration:

1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties as alleged by the complainants?
2. If so, for what relief the complainants are entitled to?

6.         Point No.1:-

Both parties filed their respective written arguments.  Heard the submissions of the counsel for both the parties and have carefully gone through the material available on record.   The main submission of the counsel for the complainant is that she booked a flat / apartment bearing No.11 C in the 11^th Floor in Block-1of residential complex ‘Neel Kamal’ with a super built-up area of 510 sq. ft. with proportionate undivided share of 163 sq. ft. in the land bearing Survey No.101/1 at Kazhipattur Village, Muttukadu Panchayat, Chengalpet Taluk, Kancheepuram District in the project promoted by the opposite parties.   In this regard, an Agreement for Project Promotion and Construction was entered between the opposite parties and complainant on 06.10.2010.   Ex.A1 is the Agreement for Project Promotion and Construction between the opposite parties and the complainant.  In furtherance to the said Agreement, the complainant had purchased proportionate land of undivided share of 163 sq. ft. through Sale Deed dt.23.11.2012 vide Ex.A2 reg. doc. No.11556/2012 in SRO-Thiruporur from the opposite parties.  The Original document of Sale Deed was retained by the opposite parties.   The complainant was prompt in making payment as and when demand made by the opposite parties.  The complainant paid a sum of Rs.16,36,448/- and again paid a sum of Rs.27,000/- on 28.05.2013 towards Diesel Genset Provision (Generator) and Vitrified Tiles to the opposite parties.  Ex.A3 is the letter of the opposite party demanding a sum of Rs.27,000/- for extra work.  As per the Construction Agreement, the opposite parties should handover the possession of the flat within 36 months from the date of agreement.   Therefore, the opposite parties ought to have handed over the flat on or before 21.03.2013 to the complainant.   But till date, the project is still under construction.  The opposite parties failed to pay the liquidated damages as agreed by them at the rate of Rs.5/- per sq. ft. per month for the delayed delivery of flat to the complainant as per clause-5(ii) of the agreement.   It is the case of the complainant that the opposite parties have deliberately committed deficiency in service  by non-delivering the flat as promised and also failed to pay the agreed compensation of Rs.5/- per sq. ft.   The complainant inspite of payment of cost for UDS in the land, the opposite parties are illegally holding the original Sale Deed dt. 23.11.2012 in their custody.  The complainant is a Senior citizen of aged about 78 years and she lost all hopes for possession and enjoyment of the flat during her life time and she is put to undue hardship, mental agony, depression and loss due to the act of the opposite parties.   Hence on 24.02.2017, the complainant sent legal notice as per Ex.A7 to the opposite parties but even after the receipt of legal notice they have not replied.      

 

7.         The opposite parties in their written version have admitted the purchase of the said flat of the complainant from the opposite parties.  At the time of registering the undivided share of 163 sq. ft. of land, the complainant has paid only a sum of Rs.16,36,448/- and there is an outstanding of Rs.50,612/-.  Hence, the opposite parties have promised the complainant that the flat will be handed over to her after the payment of the entire amount of Sale Consideration.  Further, the opposite parties contended that the purchasers ask for more facilities and features which are not part of the earlier agreement and it is the bounden duty of the opposite parties to intimate all the intended purchasers and ask for additional charges if they opt for such facilities.   The opposite parties are sent an intimation Ex.B7, letter dt. 28.10.2015 regarding the handing over possession of the flat to the complainant.   

 

8.         On hearing the submissions made by both parties and on careful consideration of the pleadings and documents, we are of the view the opposite parties are legally obliged to construct and handover the apartment to the complainants as per the agreed schedule found in the agreement.  Therefore failing to comply the terms as clearly found in the agreement after receipt of amount by citing irrelevant reasons clearly amounts to deficiency in service.  Thus we hold that the opposite parties had committed clear deficiency in service and unfair trade practice and we answer point No.2 in favour of the complainant and as against the opposite parties.

 

9.         Point No.2:-

As we have come to the conclusion that the opposite parties have committed deficiency in service and unfair trade practice the complainants should be compensated in terms of money. It is evident from Ex.B7 letter of the opposite parties that the complainant has paid Rs.16,36,448/- towards construction of the flat.  Thus complainants are entitled for refund of the said amount with interest at the rate of 9% p.a. from the date of complaint till realization.  Further, they are also entitled for a compensation of Rs.2,00,000/- for the mental agony and hardship suffered by him.  Cost of Rs.25,000/- is awarded to the complainant.  Thus, we answer point No.2 in favour of the complainant.

In the result, this complaint is partly allowed as follows :-

1. The opposite parties shall refund the sum of Rs.16,63,448/-/- (Rupees Sixteen lakhs sixty three thousand four hundred and forty eight only) with 9% interest from the date of complaint (i.e. 10.04.2017) till realization;
2. Compensation of Rs.2,00,000/- (Rupees Two lakhs only) for the mental agony & hardship;
3. Cost of Rs.25,000/- (Rupees Twenty five thousand only) towards litigation expenses. 

 

 

R  VENKATESAPERUMAL                                                                          R.SUBBIAH

       MEMBER                                                                                              PRESIDENT

 

 

DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

 

Ex.A1	06.10.2010	Copy of Agreement for Project Promotion and Construction between the opposite parties and the complainant
Ex.A2	23.11.2012	Copy of Sale Deed reg doc. No.11556/2012 on UDS in favour of the complainant
Ex.A3	11.05.2013	Copy of letter of the opposite party demanding payment for extra work for of Rs.27,000/-
Ex.A4	27.05.2013	Copy of the complainant’s letter for making payment for extra work of Rs.27,000/-
Ex.A5	28.06.2014	Copy of letter of the opposite party demanding payment regarding 100% stage payment
Ex.A6	01.10.2015	Copy of letter of the opposite party demanding payment regarding 100% stage payment
Ex.A7	24.02.2017	Copy legal notice issued on behalf of the complainant to the opposite parties with postal acknowledgement cards

 

 

DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES

 

		Copy of communication issued by the Member Secretary Mamallapuram Local Planning Authority, Chengalpattu
		Copy of receipt for Rs.1,07,56,000/- issued by the Member Secretary Mamallapuram Local Planning Authority, Chengalpattu
	March 2010	Copy of receipt for Rs.59,500/- issued by the Member Secretary Mamallapuram Local Planning Authority, Chengalpattu
		Copy of demand draft for of Rs.6,45,000/- drawn in favour of the Member Secretary Mamallapuram Local Planning Authority, Chengalpattu
	March 2010	Copy of covering letter issued by the opposite parties along with the National Savings Certificates
		Copy of the receipt issued by the Muttukadu Panchayat for receipt of Rs.8,44,352/- towards the development charges
		Copy of communication sent by the opposite parties to the complainant

 

 

 

 

R VENKATESAPERUMAL                                                                            R.SUBBIAH

       MEMBER                                                                                              PRESIDENT

 

Index :  Yes/ No

 

KIR/SCDRC/Chennai/Orders/October/2022