Tamil Nadu

South Chennai

CC/34/2015

N.Venkatesan - Complainant(s)

Versus

Samasimara Realtors Pvt ltd., - Opp.Party(s)

Party in Person

10 Dec 2018

ORDER

                                                                        Date of Filing  : 07.01.2015

                                                                          Date of Order : 10.12.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP., : MEMBER-II

 

C.C. No.34/2015

DATED THIS MONDAY THE 10^TH DAY OF DECEMBER 2018

                                 

N. Venkatesan,

S/o. (Late) Sri. V.V. Narayanan,

Flat No.11 F, Ramaniyam – Auroville,

No.1/584, 200 Feet Road,

Thoraipakkam,

Chennai  - 600 097.                                                      .. Complainant.                                                         ..Versus..

 

1. Somasimara Realtors Pvt. Ltd.,

Represented by its Director /Builder

V. Jagannathan,

No.17/35, 2^nd Main Road,

Gandhi Nagar,

Adyar,

Chennai – 600 020.

 

2. Chennai Metropolitan Development Authority,

Represented by the Secretary, CMDA,

No.1, Gandhi Irwin Road,

Egmore,

Chennai – 600 008.                                                 ..  Opposite parties.

          

Counsel for complainant           :  Party in person

Counsel for 1^st opposite party  :  Ms. R. Usha Priya

Counsel for 2^nd opposite party :  Exparte

 

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to fix responsibility for the delay in delivery of the apartment, to pay monetary compensation for rent in T. Nagar from July 2012 to September 2012 for a sum of Rs.51,000/-, service apartment in T. Nagar from October 2012 to January 2012 for a sum of Rs.90,000/-, to pay rent at Besant Nagar from February 2013 to May 2013 for a sum of Rs.1,00,000/-, to pay Income Tax rebate that could not be availed for AY 2013-2014 Rs.38,477/-, to pay Rs.25,000/- for unsustainable claim for additional area and to pay a sum of Rs.3,00,000/- towards compensation for mental agony with cost of Rs.3,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that the 1^st opposite party has committed deficiency in service on four counts that is, delay in delivery of possession, wrongly collected huge amount at the time of handing over possession improper and incomplete construction with poor quality.  The complainant further submits that as per the Joint Development Agreement dated:15.01.2010 between the land owners and 1^st opposite party assured the complainant that the works will be completed on or before November 2011.   Believing the said facts, the complainant paid huge amount of Rs.20,00,000/- by way of instalments between August 2010 and January 2011.   But the 1^st opposite party entered into a Construction Agreement only on 15.04.2011.  The opposite party even after the receipt of the huge amount of Rs.20,00,000/- quite early on the assurance of the execution of a construction agreement entered into the agreement only on 15.04.2011.   The 1^st opposite party assured to deliver the possession of building during December 2011 as originally advertised.   But the application submitted for completion certificate to CMDA was only on 24.9.2012 and the property was delivered and the complainant took possession of the property dated:06.06.2013.  The complainant submits that on the presentation of delivering possession of the property, the complainant had vacated the rented building.  Since the opposite parties has not handed over the possession of the new built house, the complainant was constrained to accommodate other rental building and paid huge amount towards rent.   The complainant states that the opposite parties collected unjustified huge amount of Rs.5,40,000/- towards final payment and for additional saleable area of Rs.25,000/- and a sum of Rs.1,00,000/- towards provision of electricity metro water and sewage connection against the actual amount of Rs.7,400/- etc for which, the complainant paid huge amount of interest of Rs.47,000/-.  The act of the opposite parties caused great mental agony.  Hence the complaint is filed.

2.      The brief averments in the written version filed by the 1^st opposite party is as follows:

      The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.    The 1^st opposite party states that he entered into a Joint Development Agreement on 15.01.2010 with various land owners.  The complainant entered into an Agreement for Construction of flat together with sale of undivided share of land on 15.04.2011.  The 1^st opposite party agreed to construct and hand over the possession of flat within 18 months from the date of agreement.   It is also agreed by both parties that a grace period of 3 months can be granted to the 1^st opposite party.  The 1^st opposite party states that the building was completed in all aspects except the Electricity Board Service connection etc which was provided by Government authorities only on production of the Completion Certificate from CMDA.  The 1^st opposite party applied for completion certificate for CMDA well within the period of Agreement.   The delay caused by the Government agencies and officials resulting the delay in handing over the possession of the property.  The 1^st opposite party states that on the presumption of taking delivery of possession of the property the complainant vacated the building and to accommodate different rental buildings.  The 1^st opposite party states that the payment towards electrical connection, water and sewerage connection are fixed and reasonable and it is equal to all.  The provision of EB connection, water and sewerage connection requires several service charges also.  The 1^st opposite party states that a sum of Rs.25,000/- has been collected towards additional  saleable area of 10 sq. ft. at the rate of Rs.2,500/-.  Therefore, there is no deficiency in service on the part of the 1^st opposite party and the complaint has to be dismissed.

3.     In spite of receipt of the notice, the 2^nd opposite party has not chosen to appear before this Forum and hence the 2^nd opposite party was set Exparte for non appearance.

4.    To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A22 are marked.  Proof affidavit of the 1^st opposite party is filed and documents Ex.B1 to Ex.B4 are marked on the side of the 1^st opposite party. 

5.      The points for consideration is:-

1. Whether the complainant is entitled to a compensation of Rs.6,07,477/- towards deficiency in service as prayed for?
2. Whether the complainant is entitled for 18% interest in the advance amount of Rs.92,600/- paid towards Metro Water and Sewage connection services as prayed for with cost?

6.      On point:-

The 2^nd opposite party remained Exparte.  Both parties filed their respective written arguments.  Heard the complainant and the 1^st opposite party’s Counsel also.  Perused the records namely the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that the 1^st opposite party committed deficiency in service on four counts that is, delay in delivery of possession, wrongly collected huge amount at the time of handing over possession, improper and incomplete construction with poor quality of materials.  The complainant further pleaded and contended that as per Ex.A1, Joint Development Agreement dated:15.01.2010 between the land owners and 1^st opposite party assured the complainant that the works will be completed on or before November 2011.   Believing the said facts, the complainant paid huge amount of Rs.20,00,000/- as per Ex.A5 by way of instalments between August 2010 and January 2011.  But the 1^st opposite party entered into a Construction Agreement only on 15.04.2011 as per Ex.A6.  The opposite party even after the receipt of the huge amount of Rs.20,00,000/- quite early on the assurance of the execution of a construction agreement entered into the agreement only on 15.04.2011 which amounts to unfair trade practice.  Further the contention of the complainant is that as per Ex.A6, Construction Agreement clause 8 which reads as follows:

8. The Party of the First Part hereby undertakes to complete the construction  of the Schedule E Property and hand it over to the Party of the Second Part within 18 months from the date of signing this agreement.  In the event of any delay, then the Party of the First Part shall be given a grace period of three months for completion of construction”.

7.     The 1^st opposite party assured to deliver the possession of building during December 2011 as originally advertised.   But the application submitted for completion certificate to CMDA was only on 24.9.2012 as per Ex.A4 and the property was delivered and the complainant took possession of the property as per Ex.A13 dated:06.06.2013 proves that there is a delay in handing over the possession of the property because the fully constructed building should be handed over to the complainant within the period of 18 months and availing a grace period of 3 months from the date of agreement i.e. 15.04.2011.  Further the contention of the complainant is that on the presentation of delivering possession of the property, the complainant had vacated the rented building.  Since the opposite parties has not handedover the possession of the new built house, the complainant was constrained to accommodate other rental building and paid huge amount towards rent.  But the complainant has not produced any proper rental receipt to prove the rent amount except the bank statement.  Ex.A10, Statement of Accounts and Ex.A14, the income tax statement which is for October 2012 to March 2013 is absolutely silent with regard to the rent with the absence of rental agreement.  

8.     Further the contention of the complainant is that the opposite parties collected unjustified huge amount of Rs.5,40,000/- towards final payment as per Ex.A5, additional saleable area caused payment of Rs.25,000/- as per Ex.A11 and a sum of Rs.1,00,000/- towards provision of electricity metro water and sewage connection against the actual amount of Rs.7,400/- as per Ex.A16 etc for which, the complainant paid huge amount of interest of Rs.47,000/-.  Hence, the complainant is claiming a sum of Rs.51,000/- towards rent, Rs.90,000/- towards service to the rental building Rs.38,477/- towards Income Tax rebate and additional cost area of Rs.25,000/-.  But on a careful perusal of records, the complainant has not produced any rental agreement to accommodate such buildings.  Equally, the complainant has not produced the rental receipts for rent amount and service.   It is also seen that the IT rebate claimed by the complainant on the ground of deficiency in service of the 1^st opposite party cannot be acceptable.  The complainant has not produced any document to prove that he has not availed additional area of 10 sq. ft. at the rate of Rs.2,500/-.  But it is very clear that there is a delay in handing over the possession of the ready built house.  The complainant is claiming a sum of Rs.7/- per sq. ft. per month after deducting 18 months grace period of 3 months for the period of delay along with compensation.

9.     The contention of the 1^st opposite party is that admittedly, the 1^st opposite party entered into a Joint Development Agreement on 15.01.2010 with various land owners.  The complainant entered into an Agreement for Construction of flat together with sale of undivided share of land on 15.04.2011.  The 1^st opposite party agreed to construct and hand over the possession of flat within 18 months from the date of agreement.  It is also agreed by both parties that a grace period of 3 months can be granted to the 1^st opposite party.  Further the contention of the 1^st opposite party is that the building was completed in all aspects except the Electricity Board Service connection etc which was provided by Government authorities only on production of the Completion Certificate from CMDA.   The 1^st opposite party applied for completion certificate for CMDA well within the period of Agreement.   The delay caused by the Government agencies and officials resulting the delay in handing over the possession of the property.  But on a careful perusal of Construction Agreement, Ex.A6, the 1^st opposite party shall handover the possession of the property after fully constructed i.e. after obtaining completion certificate from CMDA.  Thereby, the possession was handed over to the complainant on 06.06.2013  after a delay of four months.  Further the contention of the 1^st opposite party is that on the presumption of taking delivery of possession of the property the complainant vacated the building caused great inconvenience resulting to accommodate different rental buildings cannot be considered because the complainant has not filed any document prove such as rental agreement for the alleged relevant period with payment of receipt of rent.  The claim towards rent amount and service charges are imaginary. 

10.    Further the contention of the 1^st opposite party is that the payment towards electrical connection, water and sewerage connection are fixed and reasonable and it is equal to all.  The provision of EB connection, water and sewerage connection requires several service charges also.  The allegation of collection of excess amount towards such provision of electrical connection, water and sewerage connection against the fixed rate between the complainant and the 1^st opposite party is false and not proved.   Further the contention of the 1^st opposite party that a sum of Rs.25,000/- has been collected towards additional  saleable area of 10 sq. ft. at the rate of Rs.2,500/- is not denied.  The complainant  is bound to pay the said amount towards the additional saleable area.   Considering the facts and circumstances of the case the 1^st opposite party shall pay a sum of Rs.41,076/- towards delay in handing over possession of the property with a compensation of Rs.25,000/- towards mental agony and cost of Rs.5,000/-.  The complaint as against the 2^nd opposite party is hereby dismissed.

  In the result, this complaint is allowed in part.   The 1^st opposite party is directed to pay a sum of Rs.41,076/- (Rupees Forty one thousand and seventy six only) being delay in handing over possession of the property and to pay a sum of Rs.25,000/- (Rupees Twenty five thousand only) towards compensation of damages for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.   The complaint as against the 2^nd opposite party is hereby dismissed.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 10^th day of December 2018. 

 

MEMBER-I                               MEMBER-II                     PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	15.01.2010	Copy of Abstract of JDA
Ex.A2		Copy of screenshot of website showing delivery date of March 2012
Ex.A3		Copy of screenshot of website showing delivery date of June 2012
Ex.A4	24.09.2012   12.03.2013 01.04.2013 26.04.2013	a) Copy of first application of 1st opposite party to the CMDA for CC b) Copy of CMDA’s response c) Copy of second application for CC and d) Copy of Completion Certificate from the CMDA
Ex.A5	06.06.2013	Copy of Payment history
Ex.A6	15.04.2011	Copy of Construction Agreement
Ex.A7	08.09.2012	Copy of email intimating vacation of rented apartment of PS Street
Ex.A8	18.08.2015	a) Copy of Affidavit of Ms. A. Aarthi, house owner b) Copy of ID of Ms. Aarthi
Ex.A9	June 2012 to Oct 2012	Copy of SBI account statement, endorsed by the Bank, showing regular payment of rent
Ex.A10	Oct 2012 to Mar 2013	Copy of SBI account showing typical payment of rent for Serviced apartment on Chinnaya Street
Ex.A11	11.05.2013	Copy of mail to the 1st opposite party dated:11.05.2013 seeking clarification
Ex.A12	14.05.2013	Copy of mail from the 1st opposite party regarding CC and payment of compensation for delay
Ex.A13	06.06.2013	Copy of Handing over agreement Car park allocation letter
Ex.A14		a) Income tax statement for AY 13-14 (Form V) b) Statement of EMI  for HCA from HDFC for FY 2012-13
Ex.A15	15.05.2013	Copy of final claim of the 1st opposite party, email dated:15.05.2013 and attachments to the mail
Ex.A16		Copy of TANGEDCO payment abstract showing payment of Rs.7,400/- to avail service
Ex.A17	08.09.2015	Copy of picture of inside of main door of apartment (no tower bolts or safety chain provided)
Ex.A18	25.09.2015	Copy of picture of eastern and western gates
Ex.A19	26.09.2015	Copy of picture of cobbled driveway at lobby
Ex.A20	01.10.2013	Copy of email dated:01.10.2013 highlighting residual issues to be attended to by the builder, the 1st opposite party
Ex.A21	29.12.2014	Copy of picture of flooded floors
Ex.A22	26.09.2015	Copy of picture of lightning arrestor conductor joints, typical

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS:-

Ex.B1	24.09.2012	Copy of application for Completion Certificate
Ex.B2	12.03.2013	Copy of letter by CMDA
Ex.B3	01.04.2013	Copy of application for Completion Certificate
Ex.B4	26.04.2013	Copy of Completion Certificate

 

 

MEMBER-I                           MEMBER-II                     PRESIDENT