Tamil Nadu

South Chennai

CC/194/2016

Vijith Isaac - Complainant(s)

Versus

S.Srinivasan, Senior Manager Costomer Service Marg Proprities Ltd - Opp.Party(s)

K.V.James

28 Feb 2017

ORDER

                                                                        Date of Filing :   15.06.2016

                                                                        Date of Order :   28.02.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd 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.194/2016

TUESDAY THIS  28^th   DAY OF FEBRUARY  2017

 

Mr. Vijith Isaac,

S/o. Late Issac

MIG Block, 31/1,

New TNHB, Nethaji Nagar,

Thirumullaivoyal,

Chennai 600 062.                                         .. Complainant.                                                                                                                                                                                                                

                        ..Vs..

Mr. Srinivasan S,

Senior Manager Customer Service,

Marg Properties Ltd.,

Reg. Office 4/318,

Rajiv Gandhi Salai,

Kottivakkomm,

Chennai 600 041.

 

2. Mr. S.Ramakrishnan,

Marg Properties Ltd.,

Reg. Office 4/318, Rajiv Gandhi Salai,

Kottivakkomm,

Chennai 600 041.

 

3. Mr. G. Vezhevendan,

Marg Properties Ltd.,

Reg. Office 4/318, Rajiv Gandhi Salai,

Kottivakkomm,

Chennai 600 041.                                           ..Opposite parties.

 

Counsel for the Complainant       :  M/s.  K.V.James

Counsel for the opposite parties  :  Exparte.

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to  return with interest  and also pay a lump sum amount of Rs.20,00,000/- as compensation for his mental agony, stress, and strain and also to pay cost of the complaint.

1.  The averment of the complaint are brief as follows:

The complainant has entered a sale agreement and construction agreement with the opposite parties for booking a flat under their project name Brindavan in the joint name of the complainant and his mother.   The total sales consideration of Rs.23,63.898/- out of which the complainant has paid to the opposite party for a sum of Rs.9,85,540/-  to fulfill the complainant’s dream to own a house for him.

2.     As per the records available with the complainant which is sent to him by the opposite party on 30^th December 2013 he has paid all the installments sent by the opposite parties till date and only just Rs.2,43,210/- short of 50% of the entire consideration amount to be paid to the opposite parties by the complainant.  The said fact has been acknowledged by the opposite parties in their payment request letter and asking the complainant to pay the above said amount before 4^th January 2014.   As per the construction agreement signed between him and the opposite parties, the completion and delivery for possession is scheduled for December 2013 with a maximum grace period of four months.    When the complainant visited the said project in November 2013 along with his mother to his utter dismay and shock the complainant has found that not a single brick is laid for the flat booked by him.  

3.     In fact within the time of construction would have gone to the level of 3^rd slab.   The negligent act of the opposite parties against the complainant  made him to loss his interest in the project and the matter was informed to the opposite parties over phone and through emails expressing his displeasure, and expressed the complainant non readiness to make any  further payment on the project and settle the issue by paying back the amount paid with all interests and damages.   The opposite parties are not in a position also to give an assurance of when the construction would be completed and deliver to the complainant.  Therefore, the complainant has served  a legal notice to the opposite party and the same is acknowledged by the opposite parties but the opposite parties have not come forward to comply the demands of the complainant.  The negligent and irresponsible act of the opposite parties amounts to deficiency in service which caused injury, damage, loss and also mental agony to the complainant.  Hence  this complaint is filed.

4.     In spite of notice sent to the opposite parties and sufficient time is given, the opposite parties have not chosen to appear before this forum and thereby they were set exparte.

5.    In order to prove the case of the complainant, the complainant has filed as his evidence  and Ex.A1 to Ex.A13 are marked on his side.

 

6.   At this juncture, the point for the consideration before this

        Forum is:  

 

1.   Whether this complaint is not maintainable before this forum under

                 the  pecuniary  jurisdiction as alleged by the  opposite parties. ?

 

2.    Whether the complainant is entitled to any relief as prayed for?

7.     Written arguments filed on the side of the complainant and also adduced oral arguments.

8.     Though the opposite parties are set exparte, this forum wants to decide this complaint on merits.

9. POINT NO.1:

          As per averments of the complainant as well as the evidence adduced on the side of the complainant  it is learnt that the sale agreement and construction agreement were entered  into between the complainant and the opposite parties for purchase of flat under the project name Brindavan through Ex.A1 & Ex.A2 for total sale consideration of Rs.23,63,898/-.  It is further seen that the complainant had paid to the opposite party a sum of rs.9,85,540/- on different dates as per stage vice in the construction which are marked as Ex.A3 to Ex.A8 and further stated by the complainant that as per Ex.A9 & Ex.A10 the complainant has paid all the installments sent by the opposite parties as on 30.12.2013  to till date and only just  Rs.2,43,210/- short of 50% of the entire consideration amount to be paid to the opposite parties and the said fact has been acknowledged by the opposite parties and to pay the said amount before 4^th January 2014.  

10.    On further perusal of the evidence, it is seen that when the complainant visited the said project in November 2013 along with his mother to his utter dismay and shock the complainant has found that not a single brick is laid for the flat booked by him  and in total violation of the sale & construction agreement mutually agreed with the opposite parties.   Further within the time the construction would have gone to the level of 3^rd slab and therefore the complainant expressed non readiness to make any further payment on the project and settle the issue by paying back the amount paid with all interests and damages.   But the opposite parties have not given a satisfactory explanation for the delay in construction of the flats and deliver it in time.   Therefore,  the complainant issued a email communication Ex.A11 and legal notice Ex.A12 to the opposite parties and the same was acknowledged by the opposite party which is marked as Ex.A13.  In  spite of receipt of notice, the opposite parties have not come forward to comply the demands  and therefore the complainant has constrained to file this complaint before this forum.

 

11.    At this juncture, on careful going through the averments of the complaint as well as the evidence it is crystal clear that the complainant on his own admission has paid the opposite parties Rs.9,85,540/- out of total sale consideration of Rs.23,63,898/-. Such being so, from the complaint as well as proof affidavit in para -10 to return all the monies paid to the opposite parties with interest  at the rate of 12% and to pay a sum of Rs.20,00,000/- towards compensation in total and with cost.  If it is so, though the complainant has conveniently not specifically mentioned the above said sum of Rs.9,85,540/- in the prayer column in para-9 but at the same time he has categorically admitted in the complaint that he has paid amount of Rs.9,85,540/- to the opposite parties.  In such circumstances the relief asked by the complainant comes to Rs.29,85,540/- in total and also the specific prayer by the complainant to return all the monies paid by him to the opposite parties is in questionable one.

 

12.    In the light of the above facts and circumstances and the prayer column by the complainant to the tune of Rs.20,00,000/- is beyond the jurisdiction is quite clear and therefore this forum  has no pecuniary jurisdiction to entertain this complaint.   Hence this forum has come to the conclusion to return the complaint with direction to file before appropriate authority.  Thus point No.1 is answered accordingly.

 

13.    POINT No.2

        As per decision arrived in point No.1 this complaint filed by the complainant is ordered to be returned with direction to file before appropriate authority within a month from the date of this order.  This point No.2 is also answered accordingly. 

 

In the result, the complaint is returned to the complainant with direction to file before appropriate authority within a month from the date of this order.   No cost.

                   Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  28^th    day  of  February  2017.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 3.4.2012    - Copy of Sale agreement.

Ex.A2- 3.4.2012    - Copy of Construction agreement.

Ex.A3- 12.3.2012  - Copy of payment receipt Rs.3,41,589/-

Ex.A4- 17.8.2012  - Copy of payment receipt Rs.1,47,815/-

Ex.A5- 8.8.2013    - Copy of payment receipt Rs.1,25,000/-

Ex.A6- 8.8.2013    - Copy of payment receipt Rs.1,23,068/-

Ex.A7- 7.1.2013    - Copy of payment receipt Rs.2,00,000/-

Ex.A8- 7.1.2013    - Copy of payment receipt Rs.48,068/-

Ex.A9- 9.8.2013    - Copy of payment request letter.

Ex.A10-20.12.2013        - Copy of payment request letter.

Ex.A11- 28.1.2016         - Copy of email from the opposite parties.

Ex.,A12- 20.4.2016- Copy of legal notice.

Ex.A13- 28.5.2016  - Copy of Ack. of legal notice.

Opposite parties’ side document: -

  .. Nil..

 

MEMBER-I                        MEMBER-II                              PRESIDENT.