Date of filing : 28.12.2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE Hon’ble THIRU. JUSTICE R. SUBBIAH :: PRESIDENT
Thiru.R.VENKATESA PERUMAL :: MEMBER
CC. No. 19/2016
DATED THIS THE 9TH DAY OF MAY 2023
1.Shrihari Sridharan,
2.Sarada Gopalakrishnan,
No.1, Kavignar Puduvai Sivam street,
Venkata Nagar,
Pondicherry – 605 011 ..Complainants
Vs
S.B.Krishnan,
Proprietor,
Lakshmi Krishnan Construction Company,
No.C-270A Jaganathan Salai,
Periyar Nagar,
Chennai 600 082 ..Opposite party
Counsel for the complainants : M/s V.Balaji
Counsel for the opposite party : M/s N.S Nageshwaran
This complaint having come up for final hearing before us on 10.4.2023. and hearing both sides arguments and upon perusing the material records submitted by bothsides and this Commission made the following:-
ORDER
Thiru. R VENKATESAPERUMAL, MEMBER
The present complaint was filed by the complainants praying to direct the opposite party to refund the amount of Rs.60,00,000/- along with 24% interest, Rs.15,00,000/- towards compensation, Rs.5,00,000/- for mental agony and Rs.50,000/- towards cost of the complaint.
1. The case of the complainants is that believing the assurances given by the opposite party on quality house building he has agreed to purchase a flat having No. F3, in the first floor in the project Gloriosa Apartments No.49, Mohanapuri 3rd street, Brindavan Nagar, Adambakkam Chennai – 88. For the purchase of the said flat the complainants entered into a construction agreement with opposite party on 4.12.2013, which has to be put up in a plot measuring an area of about 6,900sq.ft with stilt, two wheeler and car park including proportionate common area along with undivided share of land of 1400 sq.ft. for a total cost of 1,27,00,000/- inclusive of the cost of UDS for Rs.56,00,000/- and building construction cost of Rs.71,00,000/-. The opposite party had agreed to deliver a fully constructed flat within six months time from booking of the flat. It was further agreed that handing over possession of the flat was within 15 days after completion on receipt of the entire payment.
2. It is further the case of the complainant that she had paid Rs.60,00,000/- as mentioned in the construction agreement. Though enough time had passed from the date of signing the agreement there has been no progress in the site till date. She had been contacting the opposite parties office to find out the reason for the delay in the construction but there had been only evasive reply from their end. The opposite party failed to register UDS till date. As the construction had become stand still as on date, he had cancelled the booking by letter dated 18.9.2015 and sought repayment of Rs.60,00.000/-, the said letter was returned with postal endorsement “unclaimed”. The act of opposite party in not commencing the project effectively and failure to refund the booking and other costs paid by the complainant would amount to deficiency of service which needs to be duly compensated, for the mental agony and pain undergone by the complainant. Hence the complainant has filed the present complaint for the following reliefs. To direct the opposite party to refund the amount of Rs.60,00,000/- along with 24% interest, Rs.15,00,000/- towards compensation, Rs.5,00,000/- for mental agony and Rs.50,000/- towards cost of the complaint.
3. The case of the complainant was resisted by the opposite party by filing version stating that the complainant entered into a construction agreement on 4.12.2013 for purchase of fully constructed flat viz.,F3, in the 1st floor, Glorissa Apartments in Adambakkam, Chennai. The total area consists of 6900/- sq.ft with stilt, two wheeler and car parking inclusive of proportionate common area and undivided share of 1400 sq.ft.. The time of construction is 6 months from date of agreement. The cost of 1400 sq.ft UDS is Rs.56,00,000/- and the building construction cost is Rs.71,00,000/- and the total cost of consideration is Rs.1,27,00,000/-. The complainants cancelled the agreement on 18.9.2015, stating that there is no progress in the construction. But actually the flat in question was constructed even before due date. But the complainant has not complied with the clause I of the construction agreement but paid only Rs.60,00,000/- which has been set off towards the UDS value of Rs.56,00,000/- and there after no payment was made by the complainants towards construction. Therefore the opposite party was constrained to borrow from 3rd party sources at exhorbitant rate of interest to complete the construction of the entire complex. The opposite party further submitted that when opposite party has completed and fulfilled his part of construction agreement, the default is only on the part of the complainants and as such the deficiency is only on the part of complainant. The complainant has to pay the balance amount of Rs.67,00,000/-, apart from amount for the additional works which were completed by the opposite party as per request of the complainant. Thus the opposite party sought for the dismissal of the complaint.
4. In order to prove the case, the complainant, along with proof affidavit, has filed 4 documents and the same have been marked as Ex.A1 to A.4. In order to prove the case, the opposite party, along with proof affidavit, has filed 7 documents and the same have been marked as Ex.B1 to B.7.
5. We have heard the learned counsel appearing on both sides and perused the documents.
6. Points for Consideration:
Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties as alleged by the complainants? if so for what relief the complainants is entitled to?
7. POINT: -
The complainant entered into a construction agreement on 4.12.2013 for purchase of fully constructed flat F3, in the 1st floor, Glorissa Apartments in Adambakkam, Chennai. The total area of the land consists of 6900/- sq.ft with stilt, two wheeler and car parking inclusive of proportionate common area and undivided share of 1400 sq.ft. The time of construction is 6 months from date of agreement. The cost of 1400 sq.ft UDS is Rs.56,00,000/- and the building construction cost is Rs.71,00,000/- and the total cost of consideration is Rs.1,27,00,000/-. The complainants cancelled the agreement on 18.9.2015, stating that there is no progress in the construction. But actually the case of the opposite party is that the flat in question was constructed even before due date. The complainants has not complied with the clause I of the construction agreement but paid only Rs.60,00,000/- which has been set off towards the UDS value of Rs.56,00,000/- and there after no payment was made by the complainants towards construction. As per the opposite party, the complainants has to pay the balance amount of Rs.67,00,000/- apart from amount for the additional work which was completed by the opposite party as per the request of the complainant. Therefore the opposite party was constrained to borrow from 3rd party sources at exorbitant rate of interest to complete the construction of the entire complex. When the opposite party has completed and fulfilled his part of construction agreement, the default is only on the part of the complainant.
8. Though the opposite party is claiming that the flat in question was constructed before due date they were constrained to borrow from 3rd party sources at exorbitant rate of interest to complete the construction of the entire complex, no tangible evidence was produced to prove the said contention made by the opposite party to prove the same.
9. Hence, we are of the opinion that the opposite party have committed deficiency in service by delaying the construction. Hence the complainants should be compensated. It is evident that the complainants had paid Rs.60,00,000/- to the opposite party. Since we have come to the conclusion, there is a deficiency of service we have ordered to refund Rs. 60,00,000/- with 9% interest from the date of complaint, and Rs.10,000/- as litigation expenses.
In the result,
- The complaint is allowed in part.
- The opposite party is directed to refund a sum of Rs.60,00,000/- along with interest at the rate of 9% p.a from the date of this complaint, and Rs.10,000/- as litigation expenses.
- On receipt of the amounts awarded, the complainant shall execute the reconveyance deed in respect of the UDS in the land at the cost of the opposite party.
R VENKATESAPERUMAL R SUBBIAH
MEMBER PRESIDENT
DOCUMENTS FILED ON THE SIDE OF COMPLAINANT :
Ex.A.1 copy of agreement dated 15.6.2013
Ex.A.2 copy of affidavit dated 17.12.2013
Ex.A.3 copy of judgment in CC.No. 135/3014
Ex.A.4 copy of Series of Photographs
DOCUMENTS FILED ON THE SIDE OF OPPOSITE PARTY :
Ex.B.1 copy of sale deed dated 29.11.2013
Ex.B.2 copy of construction Agreement dated 4.12.2013
Ex.B.3 copy of property Tax dated 23.9.2016
Ex.B.4 copy of E.B.Card
Ex.B.5 copy of latest photos of buildings
Ex.B.6 copy of patta in favour of opposite party
Ex.B.7 copy of Encumbrance certificate in series
R VENKATESAPERUMAL R SUBBIAH
MEMBER PRESIDENT
