Date of Complaint Filed : 06.10.2020

                                          Date of Reservation      : 06.02.2023

                                          Date of Order               : 27.02.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                 :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,          : MEMBER II

CONSUMER COMPLAINT No.74 /2020

MONDAY, THE 27^th DAY OF FEBRUARY 2023

1.Mrs.S.Bindhu,

   W/o Mr. Sathish,

   No.6, Vannar Pathai,

   Kodambakkam,

   Chennal 600 024.

2.Mrs. C. Saraswathi Ammal,

   W/o Mr K. Gopalakrishnan,

   No. 10/43, Kamarajar 3^rd Street,

   Srinivasa Nagar, Padi,

   Chennai-50.                                                                                                                                     ... Complainants                

..Vs..

M/s. RK Foundations,

(Civil Engineers & Flat Promoters),

Represented by its Proprietor,

Mr. N. Ramakrishnan, Son of Mr. S. Nagappan,

No. 33/15, Nehru Street, Srinivasa Nagar,

Padi, Chennai-600 050.

Also at

Mr.N.Ramakrishnan, Son of Mr. S. Nagappan,

Proprietor,

M/s.R.K.Foundations (Civil Engineers & Flat Promoters),

4/25, Sathiyavathi Nagar, 3^rd Street,

Padi, Chennai 600 050.                                                                                                                       ...  Opposite Party

******

Counsel for the Complainant          : M/s. G.G.Pillai

Counsel for the Opposite Party       : Exparte

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party to refund the balance of consideration /Free money Rs.5,00,000/- due to the Complainants under the Agreement and to pay Rs.46,900/- towards cost of 20 Sq.feet UDS of land sold in excess by the Opposite Party as Power of Attorney and to pay Rs.60,000/-towards balance of rent repayable by the Opposite Party for 6 months @ Rs.10,000/ pm which was promised and due to the Complainant under the scheme and to pay Rs.5,00,000/- penalty and expenses to get regularization of illegal construction of Flat at Second Floor and to pay Rs.1,00,000/- towards cost and expenses to carry out the remaining works at the Flats in Ground and Second Floors, to pay Rs.50,000/- towards Compensation to the Complainant for the mental agony, pain, harassment, hardship, wrongful loss caused to the Complainants along with cost.

2.     The averments of Complaint in brief are as follows:-

The complainant submitted that a Joint Development Agreement was entered between the 1^st Complainant and her husband the Complainant parents as land owners and the Opposite Party as a builder on 26.8.2016. While signing the agreement, the Opposite Party represented that he is a qualified Civil Engineer and a reputed builder for more than 25 years experience and up to date knowledge of statutory enactments relating to joint developments and construction having good record of quality construction of many apartments in the locality without any complaint. When his first proposal was rejected, he again and again approached by promising to pay rent at Rs.10,000/-pm for them till handing over two finished flats duly approved payment of Rs.8,00,000/- as Free money towards the scheme and to handover the finished Flats within 12 months period. The Opposite Party agreed to construct four flats all duly approved, as one at Ground Floor measuring 725 Sq.ft and one at Second Floor measuring 750 Sq.ft for the Owners and two flats at the First Floor consisting  of 700 Sq.ft each to the Builder, together with one car parking to each Flats and proportionate Undivided Share of Land, in the premises situated at No. 10/43, Kamarajar 3d street, Padi, Chennai -50 measuring an extent of 1489 ¼ Sq.Ft, comprised in Survey No. 122/1 of Mogappair Village, Ambathur Taluk, absolutely owned by the first Complainant jointly with her husband since 1981. The Opposite Party paid Rs. 3,00,000/- to the Complainants and promised to pay the balance Rs.5,00,000/- at the time of completion of Ground Floor Flat towards free money under the scheme. On agreeing to hand over Finished flats in 12 months taken over possession of premises in Sept.2016 and failed to finish till today. He paid rent only till July 2018 in contrary to his promise to pay rent till handing over the Flats duly finished in all respect. On believing his promises and representations only the premises was handed over to him. The Complainants agreed to execute Power of Attorney in favour of the Opposite Party for developing their property and to do only acts in connection with it. They retained alienation power with them and promised to execute necessary sale deeds directly in respect of the proportionate undivided  share of land in respect of Builder's Flats on handing over their Flats.  The Opposite Party, subsequently executed and registered a deed of cancellation of General Power of Attorney in respect of the unsold portion of Undivided share of land measuring 394 sq.ft vide Doc. No.4378/2018 dated 30.8.2018, registered at the SRO Konnur. The Opposite Party given copy of Deed of Cancellation of Power of Attorney, Agreement and Approved Plan only on 15^th  July 2020. On perusal of these documents the Complainants realized the fraud committed by the Opposite Party by doing the following acts and omissions.

a). The Opposite Party included the power to sell 76.5% ie 1139 ¼  Sq.feet undivided share of subject land in the Deed of General Power of attorney silently in violation of their agreement and sold 20 Sq.ft more UDS in the land. Hence he is liable to pay the cost of such excess land sold.

b). The Flat at the Second Floor meant for the First Complainant is constructed with out approval from CMDA/Corporation and hence it is illegal, liable to be demolished by the authority if not regularized. This is a silent omission on the part of the Opposite Party and hence he is liable to pay penalty and expenses to the First Complainant to regularize the same.

c). The Opposite Party agreed to complete construction in all respect latest by 20.3.2018 and to pay rent @ Rs.10,000/- pm till complete the Flats in all respect. He failed to do so and stopped payment of rent from July 2018. Hence he is liable to pay the arrears of rent for six months.

 The Opposite Party invested the Complainant's money in other project and earning good profit. Hence this Complaint is entitled their legitimate dues with interest, cost, expenses and compensation for his failure to complete the pending works in their Flats including water connection, fixing sunshade, weather proof tiling at the terrace, water sump, Motor etc. and to get due regularization of the illegal construction at the second floor and to  return the original documents. The Opposite Party failed to perform his part of performance as agreed and adopted adamant attitude and threaten the Complainants with illegal consequences. The Complainants caused a legal notice on 17.7.2020 on receipt of certain documents. The Opposite Party on receipt of legal notice met the Second Complainant and admitted their claim, assured to comply the notice in a month. As he failed to do as promised in spite of availing sufficient opportunities a reminder notice also sent on 21.9.2020. Since he ignored all the efforts taken by the Complainants and neglected to do his part as promised, there is no scope that he will finish the remaining work and pay the legal dues without legal proceedings. Hence this complaint.

3. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as  Ex.A-1 to Ex.A-7. The Opposite Party did not appear before this Commission even after sufficient notice was served on them, hence called absent and set exparte.

Points for Consideration:-

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

The 2^nd Complainant and her husband had entered into Joint Venture Agreement with the Opposite Party on 26.08.2014 for construction of the flats in the premises situate at No.10/43, Kamarajar 3^rd Street, Padi, Chennai-50 measuring an extent of 1489 sq.ft comprised in S.No.122/1, Mogappair Village, Ambattur Taluk, owned by them, whereby the Opposite Party had agreed to construct 2 flats one at Ground Floor measuring 725 sq.ft and one at 2^nd Floor measuring 750 sq.ft for the owners and 2 flats at 1^st floor measuring 700 sq.ft to the Builder, together with one car park to each flats and proportionate undivided share of land in the said premises.

        It was specifically  agreed by the Opposite Party to construct a flat at the 2^nd Floor towards the share of owners as per the Joint Venture Agreement, Ex-A-1, however as per Ex.A-3, the approval  Building plan issued by Greater Corporation of Chennai shows approval for ground and first floor only. The flat constructed and handed over to the Complainant on the second floor in unapproved and is in violation of the sanctioned plan.

        As regards the claim of Rs.5,00,000/- from the Opposite Party the Complainant brought our attention to clause 3 of the Joint Venture Agreement which states that the Opposite Party had agreed to pay free money amount of Rs.8,00,000/- to the owner and that the contention of the Complainant is that out of Rs.8,00,000/- a sum of Rs.3,00,000/- only was paid to them and balance of Rs.5,00,000/- to be paid by the Complainant. The Complainant had failed to substantiate their claim of Rs.5,00,000/- from the Opposite Party and the payment of Rs.3,00,000/- made by the Opposite Party to the Complainant. Hence their claim of Rs.5,00,000/- cannot be granted.

        In so far as the 2^nd relief to pay Rs.46,900/- towards cost of excess UDS sold by the  Opposite Party, the Complainant had reported Compliance of their demand by execution of cancellation of Power of Attorney and that possession of excess UDS was also delivered to the Complainant. Hence granting the 2^nd relief does not arise.

        Regarding the rent of Rs.60,000/- payable by the Opposite Party for 6 months from July 2018 to January 2019 @ Rs.10,000/- p.m, the contention of the Complainant that the Opposite Party had agreed to complete construction of flats in 12 months from the date of approval and that they had only agreed to pay rent till handing over of the flats which  they paid up to July 2018 @ Rs.10,000/- p.m to the Complainant and the balance of Rs.6,00,000/- remaining unpaid cannot be accepted in the absence of express Agreement in writing by the Opposite Party .

        As regards the regularization of the flat at 2^nd floor, it was specifically  agreed by the Opposite Party to construct a flat at the 2^nd Floor towards the share of owners as per the Joint Venture Agreement, Ex-A-1, however as per Ex.A-3, the approval  Building plan issued by Greater Corporation of Chennai shows approval for ground and first floor only. The flat constructed and handed over to the Complainant on the second floor in unapproved and is in violation of the sanctioned plan. The Complainant had to face the consequences of such unauthorized construction put up by the Opposite Party. The Opposite Party is duty bound to get approval for the 2^nd floor also as per the Agreement entered between them and the owners. The failure to get approval for the flat constructed on the 2^nd floor towards the shares of the owners amounts to deficiency in service, which is to be compensated.

        The Complainant contended that the Opposite Party had paid Rs.1,00,000/- towards cost and expenses carried out for the remaining works at the flats in ground and second floor during the pendency of the case and hence granting of 5^th relief does not arise.

        As regards the 6^th, 7^th and 8^th reliefs sought for by the Complainant, from the aforesaid discussions we had held that the Opposite Party had committed deficiency in service, hence the Opposite Party is liable to pay Rs.2,00,000/- as compensation for deficiency in service and mental agony caused to the Complainant and Rs.5,000/- towards cost of the litigation.

Point Nos.2 and 3:

As discussed and decided Point No.1 against the Opposite Party, the Opposite Party is liable to pay a sum of Rs.2,00,000/- as compensation for deficiency in service and mental agony caused to the Complainant and to pay a sum of Rs.5,000/- towards cost of litigation to the Complainant. Accordingly Point Nos. 2 and 3 are answered.

In the result, the complaint is allowed in part. The Opposite Party is directed to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) as compensation for deficiency in service and mental agony caused to the Complainant and to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation to the Complainant, within 8 weeks  from the date of receipt of the order, failing which the above said amount of Rs.2,00,000/- shall carry interest @9% p.a from the date of the  date of receipt of this order till the date of realization.                                                                                                                                                                                                                                                                                                                                                                                                                 

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 27^th of February 2023.

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

List of documents filed on the side of the Complainant:-

List of documents filed on the side of the Opposite Party:-

                                                                        NIL

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT