Tamil Nadu

North Chennai

228/2014

M.Rajendran - Complainant(s)

Versus

Srikrishna Builders - Opp.Party(s)

G.Sivashankaran, G.Akila

27 Jul 2017

ORDER

 

                                                            Complaint presented on:  21.11.2014

                                                                 Order pronounced on: 27.07.2017

 

 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

                    THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER – I

THURSDAY  THE 27^th   DAY OF JULY 2017

C.C.NO.228/2014

 

Mr.M.Rajendran,

Residing at D-24,

Mathura Garden, No-15,

P.H.Road, Maduravoyal,

Chennai – 600 095

                                                                                 ….. Complainant

 

..Vs..

1.Shri Krishna Builders,

No.148/2 (86) Jani Jhan Khan Road,

Royapettah, Chennai 600 014,

Presently at

No-15, P.H. Road, Maduravoyal,

Chennai – 600 095.

 

2. Mr.Nanda Kumar,

Managing Partner of Shri Krishna Builders,

No.148/2 (86) Jani Jhan Khan Road,

Royapettah, Chennai – 600 014,

Presently at

No-15, P.H.Road, Maduravoyal,

Chennai – 600 095.

.....Opposite Parties

Date of complaint                                    : 05.12.2014

Counsel for Complainant                         : M/s.G.Sivashankaran & G.Akila

Counsel for   Opposite Parties                    : K.Bhasker & N.Balamuralikrishnan

 

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 Parties to allot a convenient car park to him and also to pay compensation for delay in delivering the flat and for the suffering of mental agony with cost of the Complain. U/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant agreed to purchase a flat in the Opposite Parties project in the second floor, Flat No.D – 24, D-Block at Madura Garden New No.15/Old No.491 Poonamallee High Road, Maduravoyal, Chennai – 600 095 with a covered car park in Annexure II  Clause 1 (C) of the agreement for sale and construction.   The Opposite Parties agree to deliver the flat within 18 to 22 months from the date of agreement. However, the Opposite Parties have not completed the construction within the stipulated period. They have completed the construction and handed over the flat on 06.02.2013 belated by after two years from the date of agreement.

          2. The Opposite Parties very well know that the Complainant is using Innova Car. The car park provided by the Opposite Parties is not sufficient to park his Innova Car. He finds difficult to park his car in the allotted car park. Because of the aforesaid deficiencies committed by the Opposite Parties in not providing adequate car park and delay in handling over the possession of the flat, the Complainant forced to stay in outskirts of Chennai.  The Complainant also contacted the Opposite Parties and also wrote a letter on 05.09.2012 to allot a convenient car park and the same was negligently omitted by the Opposite Parties.  Hence the Complainant issued a legal notice and thereafter filed this Complaint to direct the Opposite Parties to allot a convenient car park to him and also to pay compensation for delay in delivering the flat and for the suffering of mental agony with cost of the Complaint.

3. WRITTEN VERSION OF THE  OPPOSITE PARTIES IN BRIEF:

          The Complainant has no jurisdiction to file this Complaint before this Forum as the property situated outside the jurisdiction of the Forum and on the sole ground the Complaint is liable to be dismissed.

          4. The Complainant entered with a construction agreement on 20.04.2008. The Opposite Party never assured covered car park linked with any particular car brand as claimed by the Complainant. However, the Opposite Parties are unaware of what car brand the Complainant was having at the time of booking of the flat. The present car parking space allotted to the Complainant as per booking seniority and it is good enough to park any brand of car.

          5. As per terms of the construction agreement the flat was handed over to the Complainant immediately on payment of the last payment as per schedule. Hence there is no question of delay in handing over the flat arises at all. Therefore the Opposite Parties have not committed any deficiency in service and prays to dismiss the Complaint with costs.

6. 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?

7. POINT NO :1 

          It is an admitted facts are that the Opposite Parties developed a project in the name of Madura Garden Flats at New No.15/Old No.491 Poonamallee High Road, Maduravoyal, Chennai – 600 095 and in the said project the Complainant agreed to purchase a flat No.24 in the second floor of the building in Block D measuring about 1397 sq ft. mentioned in schedule  ‘C’ property of Ex.A2 construction agreement entered between the Complainant and the Opposite Parties  and after completion of construction the Opposite Parties handed over the possession of the  flat to the Complainant on 06.02.2013 under Ex.A7 letter.

          8. The Opposite Parties raised the first objection that this Forum has no jurisdiction to entertain the Complaint that the project was carried out by them only at Maduravoyal which is outside the jurisdiction of the Forum and the Complainant also purchased the flat in question only in that project and therefore on this score alone the Complaint is liable to be dismissed.

          9. No doubt the project was carried out by the Opposite Parties at Maduravoyal outside the jurisdiction of the Forum. However at that time of entering the construction agreement Ex.A2, the same was executed at Royapettah, Chennai 14 were the Opposite Parties having their office at that time and entered the agreement. The said Royapettah is very well lies within the jurisdiction of the Forum. Therefore the part of cause of action arose at the time of entering the construction agreement is within the jurisdiction of this Forum and hence this Forum has jurisdiction to entertain and try this Complaint and consequently we reject the objection  raised  by the Opposite Parties in this regard.

          10. The Complainant alleged deficiencies against the Opposite Parties are that

1. as the Opposite Parties have to deliver the flat within 18 to 22 months from the date of agreement and however they handed over possession of the flat with keys only on 06.02.2013 with a delay of two years from the date of agreement  and
2. The Opposite Parties agreed to provide covered car park to park  Innova Car and however the car park provided is inadequate and unsafe

and therefore the Opposite Parties failed provide as above and hence the Complainant is entitled for the relief sought by him in the Complaint.

          11. Admittedly Ex.A2 agreement for sale and construction was entered between the Complainant and the Opposite Parties on 20.04.2008. As per the said agreement clause 8, the builder undertakes to construct the premises and to deliver the flat within 18 to 22 months. The Opposite Parties ought to have complete the construction and to deliver the possession to the Complainant by 20.02.2010 in 22 months. However, the completion certificate Ex.B2 was issued by CMDA to the 2^nd Opposite Party and other authorities is on 02.03.2010.  Even though the completion certificate was issued in the year 2010 itself the Opposite Parties delivered possession only by  06.02.2013 with a delay more than 2 years as contended by the Complainant.

          12. The Opposite Parties submitted in their written arguments that “as per the terms of the construction agreement the flat was hand over to the Complainant immediately on payment of the last schedule and hence the question of delay in handing over the flat does not arise at all”.  The payments made by the Complainant with dates have not been filed by the Opposite Parties.  To prove the last payment no proof filed by them and further there is no evidence that when the last payment was made by the Complainant. Therefore we conclude that the payments have been made by the Complainant as agreed and there was no delay was caused by the Complainant. However, on the other hand even though the Opposite Parties have obtained the completion certificate in the year 2010 itself, they have not hand over the possession immediately and with more than 2 years delay they have delivered the flat to the Complainant proves that the Opposite Parties have committed deficiency in handing over the flat to the Complainant with a delay of more than 2 years.

          13. According to the Complainant the Opposite Parties very well aware that at the time of entering construction agreement, he own Innova Car and to park that car he sought sufficient space of covered car park area and however the car park allotted is not sufficient to park his Innova Car and hence he was forced to reside outside the city of the outskirts. As per Ex.A2 construction agreement the allottee is entitled to park the car at the place marked by the builders.  Further the car park area in measurements to be allotted to the Complainant was not mentioned in Ex.A2 construction agreement. However, the Complainant sent Ex.A6 letter to the Opposite Parties that the allotted car park is not sufficient and convenient and another car park may be allotted to him.  There is no specific agreement what was the space with regard to the car park in measurement has to be allotted to the Complainant. In the absence any such specific agreement in respect of allotment of car park area, as per clause 30 of the agreement, the car park allotted to the allottee/Complainant has to be accepted by him. In view of the above circumstances we hold that in respect of the allotment of car park to the Complainant, the Opposite Parties have not committed any deficiency in service. However, it is held that the Opposite Parties have committed deficiency in service, in respect of handing over the possession of the flat to the Complainant with a delay of more than 2 years.

14. POINT NO:2

          The Opposite Parties have received the completion certificate in the year 2010 itself and delivered the flat to the Complainant after 2 years later and thereby committed deficiency in service and caused mental agony to the Complainant is accepted. Therefore, it would be appropriate to order a sum of Rs.1,00,000/- towards compensation for deficiency in service and mental agony  to the Complainant would be the appropriate relief and also to pay a sum of Rs.5,000/- towards litigation expenses. The other relief sought in the Complaint is liable to be dismissed.

          In the result the Complaint is partly allowed. The Opposite Parties 1 & 2 jointly or severally are ordered to pay a sum of Rs. 1,00,000/- (Rupees one lakh only) towards compensation for deficiency in service and mental agony and also to pay  a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses. The Complaint in respect of the other relief 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 27th   day of July 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated NIL                     Brochure

Ex.A2 dated 20.04.2008                   Agreement for sale and construction

Ex.A3 dated 20.04.2008                   Tripartite Agreement

Ex.A4 dated 21.05.2008                   Sale Deed

Ex.A5 dated NIL                     Few Service tax receipts

Ex.A6 dated 05.09.2012                   Letter from the Complaint’s to the 2^nd Opposite

                                                   Party

 

Ex.A7 dated 06.02.2013                   Letter of confirmation of receipt of possession

                                                   with keys

 

Ex.A8 dated 19.05.2014                   Legal Notice

 

Ex.A9 dated 20.06.2014                   Reply

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

Ex.B1 dated 16.02.2007                   Approved Building Plan

 

Ex.B2 dated 02.03.2010                   Completion certificate

 

 

                                     

MEMBER – I                                                                PRESIDENT