Complaint taken on file: 27.06.2017

Order delivered on: 04.11.2022

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ARIYALUR

PRESENT: Dr.V.RamarajM.L, Ph.D: President

Mr.N.BaluB.A, B.L: Member – I

Mrs.V.LavanyaB.A, B.L: Member – II

Consumer Complaint (RBT) No. 98/2022

Friday, the Fourth day of November, 2022

Anthony Arokiathan, President,

Sai Surya Owners Association, Palikaranai,

Kamakoti Nagar, 3^rd Main Road,

Paalikaranai, Chennai- 600 010.                    …                     Complainant

-Vs-

1.Real Value Promoters (P) Ltd,

Regd. Office at Ambojini,

17-1, Poes Road, 2^nd Street,

Teynampet, Chennai – 600 008.

Rep. by its C &M.DV.S.Suresh

Also at

Amarasri, 455, Anna Salai,

Teynampet, Chennai – 600 018

2.V.S.Saravanan, S/o. V.B.Subramanian,

Director, Real Value Promoters (P) Ltd,

Ambojini,17-1, Poes Road, 2^nd Street,

Teynampet, Chennai – 600 008

3.V.S. Suresh, S/o. V.B.Subramanian,

Director, Real Value Promoters (P) Ltd,

Ambojini, 17-1, Poes Road, 2^nd Street,

Teynampet, Chennai – 600 008                      …                 Opposite Parties

Counsel for the Complainant: M/s.Indumathi Ravi

Counsel for the Opposite Party: Mr.A.Palaniappan

The complainant has filed this case as against the opposite party claiming a refund of Rs.4,55,292/-being the balance amount of the corpus fund collected by the opposite party, a sum of Rs.4,40,659/- being the E.B charges paid by the complainant from December, 2012 to January, 2013, an amount of Rs.8,850/- towards maintenance, Rs.25,000/- towards corpus fund, Rs.3,00,389/- the amount collected as corpus fund and Rs.50,000/- towards the expenses on roof tiles besides seeking an order to refund the entire amount collected in the name of service tax from January, 2009 to July, 2010, to rectify the defects in the apartment, to provide internal connection to sewage pit from the front side of the building, to hand over the mother documents of the apartment and a compensation of Rs.5.,00,000/- and the cost.

ORDER

Pronounced by Mr.N.Balu: Member-I

Adopted by Dr.V.Ramaraj: President and Mrs.V.Lavanya: Member-II  

The facts of the complaint in brief:

1. The complainant is the president of an association namely “Sai Surya Owners Association, Pallikaranai” registered on 11.03.2013 under Societies Act. All the 62 flat owners of the Sai Surya Apartment are members in the association. The complainant files this complainant in representative capacity on behalf of the 62 flat owners. The Sai Surya Apartment was constructed by the opposite parties from December, 2007 to March, 2014, the 62 flat owners purchased their flats one by one from 2007 to 2014 for various prices according to the prevailing market rate.

2. Each and every flat owner has to pay a sum of Rs.25,000/- in the name of corpus fund at the registration of their flat. This corpus fund should be repaid by the builder (opposite parties) to the registered flat owners association which will be used as future capital expenditure. The opposite parties being the builder have collected a sum of Rs.15,50,000/- from the flat owners in the name of corpus fund. According to a calculation given by the 1^st opposite party, they have spent Rs.11,03,558/- till January, 2013 for the maintenance of the Apartment. One flat owner namely EaswaranRamamoorthy (Flat No.3D West) has been charged Rs.8,850/- extra apart from the usual Rs.25,000/-.

3. The opposite parties should refund a sum ofRs.4,55,292/- which was collected as corpus fund and remains unspent. Rs.8,95,951/- has to be refunded by the opposite parties by way of interest for the corpus fund collected from the flat owners from February, 2013 to February, 2017.the complainant has paid an amount of Rs.7,523/- to the E.B.The maintenance charge for the 6 flats delivered after January, 2013 amounts to Rs.3,00,189/- which includes an interest of Rs.1,82,704/- calculated @ 18% P.A from April, 2014 to February, 2017. This amount should also be refunded by the opposite parties. In total, the opposite parties have to refund a sum of Rs.12,03,663/-.

4. The complainant requested the 1^st opposite party on several occasions to refund this amount ofRs.12,03,663/- which can be used for the betterment of the apartment. But the 1st opposite party kept on seeking time on flimsy grounds. Hence, the opposite parties have committed unfair trade practice by collecting corpus fund in the guise of refunding it to the association and avoiding to refund it telling flimsy reasons. Moreover, the walls of the apartment started to develop cracks within a year. Heavy rain in December, 2015 caused severe leakage and other problems to the flat dwellers. General Manager namely Kolappan had assured to rectify any crack developed within 2 years. When this issue was taken to the 1^st opposite party, he never initiated any step to repair the cracks.

5. The floods in Chennai in December, 2015 caused heavy seepage inside the flats. This time also the 1^st opposite party did not bother to rectify the defects. The cracks on the walls are not due to the wear and tear of the building but due to the lapses at the time of construction of the building. The complainant himself took up the initiative, replaced the tiles at a cost of Rs.50,000/-. This amount should also be refunded by the opposite parties. The drainage connection to corporation sewage line was wrongly designed which led to the drainage water flow through the backside of the apartment. As the corporation staff instructed to relay the sewage line and connect it to the front side of the apartment, the 1^st opposite party with the Project Engineer namely Subramaniam and the site Engineer namely Justin inspected the spot, promised to do the needful but totally neglected.

6. The mother documents of plot nos. 476 to 499 were not handed over to the Registered Association since March, 2013. In spite of several reminders, the opposite parties do not bother to hand over the documents. The opposite parties have collected service tax from January, 2009 to July, 2010 which was not paid to the Government. This amount of Rs.30,00,000/- should also be refunded to the complainant. Hence the complainant caused a Legal Notice on 10.06.2016 asking the opposite parties to refund the above amounts with compensation and to do the necessary repair works and to hand over the remaining mother documents. Notice was received by the opposite parties on 16.06.2016. the opposite parties did not bother to give any reply.

7. Hence the complainant prays to award a sum of Rs.4,55,292/- towards corpus fund, Rs.4,40,659/- towards interest for the corpus fund (from Feb,2013 to Feb,2017), Rs.7.523/- the E.B charges paid for December, 2012 and January, 2013,

Rs.3,00,189/- towards corpus fund which includes interest, Rs.50,000/- towards laying the roof tiles, the service tax collected from the flat owners from January, 2009 to July,2010, to rectify the defects in the apartment, to provide internal connection to the sewage line, to hand over the mother documents of certain flats of the apartment, a compensation of Rs.5,00,000/- and the cost of this litigation and also to direct one EaswaranRamamoorthy, the flat owner of Flat No.3D to refund a sum of Rs.8,850/- towards maintenance clubbed with the corpus fund of Rs.25,000/- in total Rs.33,850/-.

The facts of Written version in brief:

8. The opposite parties have filed their written version but have not filed any proof affidavit any document on their side. In their version the state that the complaint has to be rejected at the outset. An Association cannot file any consumer complaint. This complainant has not got the permission of the commission under section 12 (c) of the C.P Act, 1986. As per the ruling of the National Commission in “Ambrish Kumar Shukla and 21 others -Vs- Ferrous Infrastructure Pvt Ltd” reported in Vol I 2017 CPJ page number 1, an Association cannot file consumer complaint on behalf of others. The complainant has filed this complaint proclaiming himself as the president of an association claiming a total sum of Rs.47,87,513/- from the opposite parties alleging some deficiency in the services of the opposite parties.

9. The opposite parties constructed the flats of Sai Surya Apartment and handed over them to the respective flat owners from 2007 to 2014. The complainant association as claimed by the complainant himself was formed and registered on 11.03.2013. Then the maintenance of the apartment was handed to the association by the opposite parties on 13.04.2013. the complaint was filed on 28.03.2017 nearly after 4 years. The complaint suffers from the point of limitation.The complainant has not mentioned as to how many members are there in the association and on behalf of how many members, he has filed the complaint. The complainant’s allegation that one flat owner namely EaswaranRamamoorthy was charged Rs.8,850/- extra in addition to the Rs.25,000/- of corpus fund is true because he occupied his flat in February, 2012 immediately after the completion of the apartment whereas other flat owners occupied at a later stage. Hence, the payment of EaswaranRamamoorthy is not on par with others.

10. The corpus fund was utilized for the maintenance of the apartment by the opposite parties until the formation of the association. All accounts were handed over to the office bearers of the association on 13.04.2013. a total sum of Rs.15,00,000/- was collected towards corpus fund out of which Rs.12,25,543/- was spent for the maintenance of the apartment and the balance amount of Rs.2,74,457/- remained with the opposite parties. This was informed to the complainant and other office bearers as early as in February, 2015. The complainant was not ready to receive the same but has claimed a sum of Rs.8,95,951/- with interest from February, 2013 without any logic or any calculation. The complainant has not filed any proof to show that he paid the E.B bill of Rs.7,523/-. The complainant has not stated as to where and in which of the 2 blocks of the apartment, the cracks developed and has filed no proof to show that he spent Rs.50,000/- to carry out the repair works.

11. At the time of constructing the apartment, the Chennai Metropolitan Corporation did not provide any drainage provision and hence, a common sewage treatment plant for all the 62 flats was installed on the backside of the apartment. The sewage treatment will start to function once the tank attains 50% of its capacity and until then it will remain as a septic tank only. Without knowing these facts, the complainant has stated that the drainage line was wrongly connected to the backside. As the Chennai Corporation has provided drainage facility, it would be prompt to connect the drainage line to the Corporation drainage line in the front side of the apartment. The mother documents of individual flat owners can be handed over to the association only if the flat owners give no objection letter.

12. The opposite party has paid the service tax to the Government. Once a contract is signed with the purchaser, it is the obligation of the builder to pay service tax to the Government. The complainant claims to refund the service tax collected from 2012. The complainant has taken 5 years to raise this issue which is ridiculous and is barred by limitation too. The opposite parties are very prompt in paying service tax to the Government. The opposite parties have filed an Appeal in Appeal No. 723/2010 along with a stay petition before the Custom, Excise and Service tax Tribunal, South Zone Bench. As the bench ordered the opposite parties. They have deposited a sum of one crore rupees there towards 50% of the service tax claim. Hence, the amounts collected from the flat purchasers towards service tax was immediately paid to the Government. Despite this fact, the opposite parties have paid the above one crore rupees in Tribunal to challenge the imposing of service tax. The opposite party has stopped collecting service as per the stage of construction of the flat from the flat purchasers after their Appeal was numbered in the Tribunal.

13. The complaint suffers from the point of limitation. He has no locus standi to file this complaint on behalf of others. The complainant has suppressed material facts like the installation sewage installation plant, has claimed amounts without any logic and calculation and any proof in his complaint and hence he has not approached this commission with clean hands. The complainant has filed this complaint to gain money unlawfully from the opposite parties in the guise of representative of 62 flat owners. Hence, the complaint has to be dismissed.

14. Points to be considered:

1).  Whether the complainant was properly authorized to file this complaint? Does the complaint suffer from the point of limitation?Whether the complaint is maintainable?

2).    Whether the complainant has proved any deficiency or unfair trade practice in the services of the opposite parties? If yes, what are the reliefs the complainant is entitled to?

Point No.1:

15. The complainant has filed this complaint on behalf of the 62 flat owners in the capacity of president of the flat owners’ association. He has filed the Registration certificate (Ex. A-2) as the proof which contains only one page showing only the name of the association. The complainant has filed the Board resolution as Ex. A-20 but has not mentioned anything about the content of this document in the proof affidavit. Ex.A-20 is a resolution passed by the members of an association but it contains no signature of the members but only the signatures of the President and Secretary alone. Hence this commission concludes that this document is not reliable. Ex. A-21 contains the by-laws of the association, it contains in its last page the names of the office bearers and 4 committee members. The names of the members of the association do not find place in any of the documents submitted along with proof affidavit. The complainant has neither filed any Power of attorney deed nor authorization letter from the 62 flat owners on behalf of whom he has filed this complaint.

16. Thecomplainant has not filed the proof affidavit but one V.Venkatanarayananresident of flat No.4C has filed the proof affidavit and has stated that he is the president of the association. No reason has been stated in the proof affidavit as to why this person files proof affidavit instead of the complainant. If the association members had elected this person in the place of the complainant, it should have been properly informed to this commission and prior permission of this commission should have obtained before filing the proof affidavit. But the complainant has not obtained such permission. In the absence of evidence of the complainant, the entire complaint stands unproved.

Point No:2

17. The complainant claims money from the opposite parties under various heads such  as  a sum of Rs.4,55,292/- towards corpus fund, Rs.4,40,659/- towards interest for the corpus fund (from Feb,2013 to Feb,2017), Rs.7.523/- the E.B charges paid for December, 2012 and January, 2013, Rs.3,00,189/- towards corpus fund which includes interest, Rs.50,000/- towards laying the roof tiles, the service tax collected from the flat owners from January, 2009 to July,2010, to rectify the defects in the apartment, to provide internal connection to the sewage line, to hand over the mother documents of certain flats of the apartment, a compensation of Rs.5,00,000/- and the cost of this litigation and also to direct one EaswaranRamamoorthy, the flat owner of Flat No.3D to refund a sum of Rs.8,850/- towards maintenance clubbed with the corpus fund of Rs.25,000/- amounting to Rs.33,850/-. In total, the complainant has claimed a sum of Rs.47,87,513/-.

18. The complainant has filed the construction agreement between a flat owner and the opposite parties (Ex. A-1), the Registration Certificate of Sai Surya Apartment (Ex. A-2), some letters and E-Mail communications between the complainant and the 1^st opposite partyto prove this case. He has not taken anyserious step to prove his allegations against the opposite parties. The complainant demands the opposite parties to refund money under various heads, asks for direction to opposite parties to hand over some parent documents and further seeks direction to the opposite parties to change the sewage line from the backside of the apartment and re-lay the same in the front side of the apartment. In fact, most of the demands of the complainant are beyond the jurisdiction of this commission. The complainant should file a civil suit before the concerned civil court for these reliefs.  The complainant has not proved his case with necessary evidence. Hence, the complainant is not entitled to get any relief from the opposite party.

19. The supreme court has held in “Anjum Hussain Park Pvt Ltd -Vs- Intellicity Business Park Pvt Ltd and others” (Civil Appeal No.1676/2019 against NCDRC order in C.C No.2241/2018) has held that the interests of the persons on behalf of whom the claim is filed should be common. In other words, the grievance or the redressal sought for should be common among all the persons. But here in this complaint, the complainant seeks various redressals for various persons. He seeks an order to rectify the defects in some flats of the apartment, to provide internal connection to the sewage line, to hand over the mother documents of some flats of the apartment to the complainant (without the approval of the concerned flat owners). Above all, the complainant has strangely prayed in paragraph 19, clause (d) of the complaint to direct one EaswaranRamamoorthy, flat owner of Flat No.3D who is not an opposite party in this complaint to refund a sum of Rs.8,850/- towards maintenance clubbed with the corpus fund of Rs.25,000/- in total Rs.33,850/-.

20. This commission concludes that the complainant has not proved his case with necessary evidence against the opposite parties. Hence, it is concluded that the complainant is not entitled to get any relief as prayed in the complaint.

As a result, this commission passes the following ORDER:

The complainant has not proved his case with necessary evidence. The complaint is dismissed. No cost. The parties have to bear their costs.

This Order was dictated by me to the steno, today the fourth day of October, 2022, was taken notes in short-hand and then typed in computer and corrected by him and was pronounced by us in the open court today.

Member-I                                                  Member-II                                   President

Witness examined by complainant: V.Venkatnarayanan (On behalf of complainant)

No witness was examined on the side of the opposite parties

List of Documents marked by the complainant:

No document was marked by the opposite parties.

President

Member-I

Member-II