Tamil Nadu

North Chennai

83/2013

S.Sri Kumar, rep. by PAO, N.S.Srinivasan, - Complainant(s)

Versus

Sree Kuladevatha Constructions rep. by its Propprietor, - Opp.Party(s)

S.Natarajan

13 Apr 2017

ORDER

                                                            Complaint presented on:  10.04.2013

                                                                Order pronounced on:  13.04.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY THE 13^th DAY OF APRIL 2017

 

C.C.NO.83/2013

 

 

 

S.Srikumar,

Rep by his POA,

N.S.Srinivasan,

#:6/27 “E” Type,

Kaviarasu Kannadasan Nagar,

Chennai – 118.

                                                                                    ….. Complainant

 

..Vs..

1. Sree Kuladevatha Constructions,

By its Proprietor,

#:77 W Block IV Street,

Anna Nagar Chennai – 40.

 

2. M/s. Kumeran Housing Pvt. Ltd.,

By its Managing Director,

#1 VOC II Main Road,

Kodambakkam Chennai – 24.

.....Opposite Parties

Date of complaint                                 : 12.04.2013

Counsel for Complainant                      : S.Natarajan

 

Counsel for 1^st Opposite Party                : Ex- parte (M.Shreedhar & Associates)

                                                               R.Krishnan, M.Maruthu Pandian

 

Counsel for 2^nd Opposite Party                     : Mr.Panneer Kumar

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the Opposite Party to handover the flat, to deduct approximate cost of Rs.3,00,000/- for the unfinished works, to pay a sum of Rs.3,73,968/- for the deficit area and a sum of Rs.14,000/- towards excess collection and also to pay compensation for Deficiency in Service and mental agony with cost of the Complaint  u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The 2^nd Opposite Party is the owner of the property in Survey No.168/B1 of Kilambakkam Village, Urapakam Panchayat, Kattankulathur Panchayat Union, Chengalpet Taluk to an extent of 0.59 cents. Out of the said land the Complainant purchased 365.8 sq. ft as undivided share (UDS) on 26.02.2002. The 1^st Opposite Party is a builder agreed to construct in the above UDS a flat F2 measuring 981 sq. ft plinth area inclusive of common area in the 1st floor, B block of SKC Jeeva Enclave. The total cost of construction agreed was Rs.26,17,960/- and the construction agreement was entered on 22.06.2010. The 1^st Opposite Party agreed

to use good quality material and to complete the construction within a period of one year. The Complainant availed a sum of Rs.23,00,000/- by way of bank loan at Andhra Bank, Chennai – 2. The Complainant paid more than 90% payment and however even after expiry of the said one year period on 07.06.2011, he had not completed. The following defects were found in the construction

1. The kitchen construction was not according to the plan        shown earlier

2. Poor carpentry work on the alignment of doors in both bedrooms

3. Gaps in kitchen windows

4. Cracks in the door and wall frame

5. Cracks at the back of the main entrance door

6. Cracks on the wooden frame of the bedroom doors

7. Gap in the window frame and the concrete wall in the hall

However the 1^st Opposite Party had not constructed 981 sq. ft as agreed and however he had actually constructed only 754 sq. ft with a short of 127.2 sq ft. The Complainant seeks the amount for the deficit construction of 127.2 sq ft x 2,940 per sq ft = Rs.3,73,968/- shall be refunded by the 1^st Opposite Party. The 1^st Opposite Party demanded a sum of Rs.1,00,000/- for car park and other charges towards  service charges, TNEB charges which  were never of part of agreement. There has been inordinate delay in handing over a fully completed flat in all aspects as per the construction agreement which is yet to be done. Therefore the Opposite Parties have committed Deficiency in Service. Hence the Complainant filed this Complaint for a approximate cost of Rs.3,00,000/- for  unfinished work, a sum of Rs.3,73,968/- for the deficit area and compensation for Deficiency in Service and mental agony and excess collected amount of Rs.14,000/- with cost of the Complaint.

2. THE 1^ST OPPOSITE PARTY REMAINED AND SET EX – PARTE. WRITTEN VERSION OF THE 2^ND OPPOSITE PARTY IN BRIEF:

          This Opposite Party is only an agreement holder for selling the undivided share land for a valuable consideration to the Complainant. This Opposite Party only sold the UDS to the customer of the 1^st Opposite Party and there was no joint venture agreement with the 1^st Opposite Party. Therefore the Complainant cannot fasten any liability against the 2^nd Opposite Party. The Complaint is filed against this Opposite Party/vendor for selling UDS has no merits and liable dismissed with cost.

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

4. POINT NO :1 

          The admitted facts are that the 2^nd Opposite Party is the owner of the land at Survey No.168/B1, and 168B/1BIA of Kilambakkam Village Urapakam Panchayat, Kattankulathur Panchayat Union, Chengalpet Taluk  about 59 cents and out of the said land, the Complainant purchased 366.8 sq. ft as undivided share land under  Ex.B2 sale deed and the 1^st Opposite Party agreed to construct the said UDS land with the Complainant for 981sq.ft flat inclusive of common area under Ex.A2 construction agreement dated 26.02.2010.

          5. Throughout the pleadings of the Complaint, the Complainant stated against this 2^nd Opposite Party is that he had purchased only the UDS land from him for valuable consideration and the 2^nd Opposite Party is bound by the terms of the joint venture agreement entered among the Opposite Parties. There is no joint venture agreement filed by the Complainant. Since there is no joint venture agreement entered between the Opposite Parties, the 2^nd Opposite Party only sold the UDS to the Complainant and the Complainant only entered into an agreement with the 1st Opposite Party/builder to construct flat in respect of the UDS,   the 2^nd Opposite Party has not committed any deficiency as alleged in the Complaint and therefore we hold that the 2^nd Opposite Party has not committed any Deficiency in Service.

          6. Ex.A2 is the construction agreement entered between the 1^st Opposite Party and the Complainant and the 1^st Opposite Party agreed to construct 981 sq. ft, F2 flat inclusive of common area in the 1^st floor, B block, SKC Jeeva Enclave for total cost of construction of Rs.26,17,960/-. As per the agreement the 1^st Opposite Party agreed to complete the construction within a year and to hand over the flat. Out of the total cost of construction, the Complainant paid nearly 90% of the amount for a sum of Rs.23,41,000/- through Ex.A6 bank statement. The 1^st Opposite Party was set ex – parte for non filing of written version. Therefore, there is no contra evidence on behalf of the 1^st Opposite Party and hence the payment of Rs.23,41,000/- paid by the Complainant is accepted.

          7. The 1^st Opposite Party agreed to complete the construction  and handover the flat to the Complainant within a period of one year from the date of  entering construction agreement. Ex.A2 is the construction agreement dated 22.06.2010 between the Complainant and the 1^st  Opposite Party. As per clause 15 of the said agreement the 1^st Opposite Party has to  complete the project in  one year. However the 1^st Opposite Party failed to complete the construction and handed over the flat on completion of one year and even till date as contended by the Complainant the flat was not handed over to him. Therefore, the 1^st Opposite Party failed to complete the construction of the flat as per the construction agreement and not handed over the same to the Complainant is deficiency on the part of the 1^st Opposite Party.

8. As per Ex.A2 construction agreement the 1^st Opposite Party  agreed to construct 981 sq. ft and however the Complainant said that the 1^st Opposite Party actually constructed only 754 sq. ft and there is a deficit of 127.2 sq. ft as agreed by him. According to the Complainant the cost of construction is at Rs.2,940/- per sq. ft. On calculation for 127.2 sq. ft the cost comes to Rs.3,73,968/- and for such amount the Complainant is entitled from the 1^st Opposite Party for the deficit area. Having the Complainant agreed to construct 981 sq. ft  and constructed lesser in area against the construction agreement is a defect on the part of the 1^st Opposite Party and therefore failure to construct the 981sq.ft area we hold that the 1^st Opposite Party committed Deficiency in Service.

          9. The Complainant alleged the several deficiencies in the Complaint. The Complainant also took possession of the flat. To support the above deficiencies there was crack, gap in the window and construction was not in accordance with the plan, no supporting evidence filed by the Complainant. The Complainant not even filed the sanctioned plan in this case. Therefore the above said deficiencies have not been proved by the Complainant. Therefore we hold that the 1^st Opposite Party  has not committed any deficiency in respect that there was crack, gap in the window and construction was not in accordance with the plan and however he has committed deficiency in respect of constructing lesser area against agreed area in Ex.A2 construction agreement and also filed to  deliver the flat to the Complainant.

 

09. POINT NO:2

           The Complainant failed to deliver the flat  to the Complainant after completion of the flat. The Complainant claims for the deficit construction area for a sum of Rs.3,73,968/- for such amount, the Complainant is entitled from the 1^st Opposite Party. Further due to such deficiency the Complainant suffered with mental agony is accepted. Therefore it would be appropriate to deliver the flat to the Complainant within two months from the date of this order and also to pay compensation of Rs.50,000/- for mental agony and Deficiency in Service to the Complainant and also to pay a sum of Rs.5,000/- towards litigation expenses. The Complaint in respect of the 2^nd Opposite Party and also other relief is liable to be dismissed.

          In the result the complaint is partly allowed. The 1^st opposite party is ordered to deliver the completed flat   to the Complainant  within two months from the date of this order and also to refund a sum of  Rs.3,73,968/- (Rupees three lakhs seventy three thousand nine hundred and sixty eight only)/- towards the deficit construction area to the Complainant and also to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for mental agony besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. The Complaint in respect of other relief and against the 2^nd Opposite Party is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment. 

 

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 13^th   day of April 2017.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated  15.06.2010                           Power of Attorney

Ex.A2 dated 22.06.2010                            Construction Agreement

Ex.A3 dated 22.06.2010                            Sale Agreement for UDS

Ex.A4 dated 08.05.2012                            Complainant’s e-mail

Ex.A5 dated 08.11.2012                            Complainant’s Notice

Ex.A6 dated NIL                               Statement of Accounts

LIST OF DOCUMENTS FILED BY THE  2^nd   OPPOSITE PARTY :

Ex.B1 dated 22.06.2010                             Sale Agreement for UDS Executed by op2

                                                               in favour of Complainant

 

Ex.B2 dated 22.06.2010                             Sale Deed Doc.No.6122/2010 Executed by

                                                               op2 in favour of Complainant

 

 

MEMBER – II                                                               PRESIDENT