Tamil Nadu

North Chennai

CC/136/2015

T.N.Jothi Mani - Complainant(s)

Versus

Tamil Nadu Housing Board - Opp.Party(s)

Party in Persion

21 Dec 2016

ORDER

                                                             Complaint presented on:  17.08.2015

                                                                Order pronounced on:  21.12.2016

 

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

 

WEDNESDAY THE 21^st  DAY OF DECEMBER  2016

 

C.C.NO.136/2015

 

 

    T.J.Ravi Kumar

S/o. T.N.Jyothi Mani,

49/1194, Jeevan Bima Nagar,

Anna Nagar West Extension,

Chennai – 600 101.

                                                                                        ..... Complainant

 

..Vs..

 

The Manager (Sales & Service)

Tamil Nadu Housing Board,

J.J.Nagar Division,

Thirumangalam,

Chennai – 600 101.

	...Opposite Party

Date of complaint                                  : 04.09.2015

Counsel for Complainant                      : T.N.Jyothi Mani(Power of Attorney)

Counsel for Opposite party                      :Mr.V.Yuvakumar

 

 

 

 

O R D E R

 

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

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Opposite Party called for applications in the prescribed forms for submission to them with a booking amount 5% of the cost of the flat before 28.09.2011 for allotment of 104 higher income group self financing flats with stilt + four floors with a plinth area varying sq.metre which costs varying from Rs. 33.06 to 41.28 lakhs to be constructed near Dunlop Factory, Ambattur development scheme III. The Complainant submitted an application with a demand draft for Rs.1,87,000/- dated 28.09.2011 towards 5% cost of the flat. The Opposite Party sent a letter dated 11.11.2011 informing that the Complainant to participate in the lots to be conducted on 17.11.2011 at 11.00 a.m at Thanthai Periyar Community Hall, Anna Nagar, and Chennai -101. The Complainant participated in the lot and he came out successful and in the lot flat No.H4/76, in the 3^rd floor measuring a plinth area of 93.3 sq.m which costs approximately 35 lakhs . The Complainant was informed that the allotment letter for his flat would be sent in a week’s time. However there was no communications from the Opposite Party. Only after 37 months the Complainant received a letter dated 26.12.2014 that the Opposite Party  has decided to construct only 92 flats instead 104 flats and the estimated costs works out to Rs.48.1 lacs to 59.64 lacs depending on the area sought by the Complainant and requiring him to give his consent for the revised costs within 7 days. The Complainant replied in his letter dated 06.01.2015 that he already opted and a flat was already allotted to him and requested to construct the same with same cost and handed over to him. However the Opposite Party wrote 00.01.2015 letter that only 92 flat will be constructed and preference will be given to him in the revised scheme, if he gives consent. The Complainant replied in his letter dated 02.02.2015 for the preferential allotment of the flat as he already gave consent and agreed to pay the extra cost if any on account of the   revised plinth area at the sq.ft rates quoted earlier in their leaflet. Again the Opposite Party wrote letter dated 17.06.2015 that it is not possible to determine the costs quoted earlier in 2011 and sought his final approval for the revised costs. The Complainant sent another reply on 22.06.2015 that the Opposite Party kept quiet for the last 4 years without intimating the allotment or refunded the amount paid by him and now ask for enhanced rates for the reasons best known to them. The Opposite Party is alone responsible for the delay and he is not justified to determine the cost of the flat with new rate, without adhering to 2011 rate. The Opposite Party on 24.07.2015 informed that lots were conducted and his application was not taken into consideration, since he has not expressed his willingness in the lot for allotment of flat. Having the Opposite Party kept quiet for last four years and also revised the scheme, he has committed Deficiency in Service and hence the Complainant filed this Complaint for compensation for delay in construction of flat and for mental agony with cost of litigation.

2. WRITTEN VERSION OF THE OPPOSITE PARTY  IN BRIEF:

          The Opposite Party admits that the Complainant had applied for a HIG flat in the Ambattur Development Scheme along with 5% costs i.e Rs.1,87,000/- by way of demand draft. A lot was conducted on 17.11.2011 after due intimation to the Complainant and the Complainant was selected for allotment of HIG flat No.H4/26, 3^rd floor at Ambattur Scheme.  Further he was informed that the specification of the materials to be used in the construction will be displayed in the notice board and within 21 days from the date of receipt of provisional allotment letter he has to pay another 5% of the cost of the flat and the allotment letter will be sent to him in a week time. In the mean time M/s. Jain Housing and Construction Limited has filed a case against the Opposite Party in OS No.574/2011 and in I.A.No.1932/2011 at District Munsif at Ambattur praying for providing access road leading to M/s. Jain Housing in Survey No.292/1 and 293/3 an extent of 3.10 acre and the said Court granted interim injection against the Opposite Party.  Hence the above approved scheme could not be implemented in the year 2011 and in view of the same provisional allotment order has not been sent to the Complainant. M/s. Jain Housing Limited submitted application to the CMDA to provide access to their land through the Opposite Party land.  The access road portion has been handed over to CMDA through Gift sale deed. Thereafter a revised plan has been preferred for construction of 92 HIG flats, instead of 104 flats with provision of 5 meter width along the side of access road for M/s Jain Housing Limited. Thereafter, M/s.Jain Housing Limited withdrew the suit and application. The revised scheme was approved by the board resolution No.4.06 dated 15.12.2014 with revised sq.ft and total cost/flat. The revised rate and scheme intimated to the Complainant and general public requesting his willingness to the revised costs for the allotment in 92 HIG flat. Due to litigation and CMDA instruction the schemes has been revised. The Opposite Party sent many letters to the Complainant for his willingness to accept the revised costs but he had not given his consent. Hence excluding the Complainant a lot was conducted on 06.07.2015 as preferential allotment at revised cost for the 92 flats. Hence this Opposite Party has not committed any Deficiency in Service and prays to dismiss the Complaint with costs.

3.POINTS FOR CONSIDERATION:

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

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

4.POINT : 1

          The admitted facts are that the Opposite Party called for advertisement through Ex.A1 to develop a  Ambattur Development Scheme for allotment of 104 HIG self financing flats with stilt + 4 floors with varying area and varying costs and the Complainant submitted Ex.B1 application along with  Ex.A2  demand draft for a sum of Rs.1,87,000/- in favour of the Opposite Party towards 5%  of the cost of the flat and on receipt of the same Ex.A2 acknowledgement was issued to the Complainant and thereafter the Opposite Party sent Ex.A3 letter to the Complainant  intimating him that a lot will be conducted on 17.11.2011 at 11.00 a.m at Thanthai Periyar Community Hall, Annna Nagar, Chennai -101 and  accordingly the Complainant participated in the lot and he came out successful by allotting flat No.H4/76  in the 3rd floor measuring a plinth area 93.3 sq.m which costs Rs.35 lacs approximately and the Complainant was informed by the Opposite Party that he would get a allotment letter  within a week time.

          5. The Complainant argued that after drawal of the lot and after 3 years  only the Complainant received Ex.A4 letter dated 26.12.2014 from the Opposite Party requiring his consent for the revised  rate in the revised scheme to give preferential allotment to him and till such time there was no communication from the Opposite Party that is why he had not sent the allotment letter to the allottee   and further the actual cost per sq. ft comes to Rs.409 as per Ex.B3 and where as the Opposite Party revised the rate at Rs.3,300/- per sq .ft as per guideline value and having the Complainant came out successful in the lot  conducted by the   Opposite Party  and flat was also allotted to him even in the year 2011 itself and a sum of Rs.1,87,000/- was received from him and thereafter the Opposite Party had not taken any steps to construct the flat is deficiency on his part and further the land cost of  3.1 acre allotted to M/s.Jain Housing Ltd. have been also included in the cost of the 92 flats and that is why the rate  has became higher and in that respect also the Opposite Party have committed Deficiency in Service.

          6. The Opposite Party replied that after drawing the lot and before sending the provisional  allotment letter to the allottees, M/s Jain Housing Limited filed a suit in OS No.574/2011 at District Munisf, Ambattur and obtained an interim injection against this Opposite Party and that is why the allotment letter was not sent to the Complainant and could not commence the project in the year 2011 itself and after intervention of CMDA  with a provision of 5 metre  width area was gifted to the CMDA to use  access road for M/s Jain Housing area and thereafter resolution was passed as per Ex.B3 by the Opposite Party board  for construction of 92 flats with revised rates and area and thereafter sent communication to the Complainant as well as others requiring them to give their consent and however the Complainant did not give his consent  and hence on 06.07.2015 a lot was conducted as preferential allotment and as such this Opposite Party have not committed any Deficiency in Service and prays to dismiss the Complaint with costs.        

          7. The Complainant was allotted a flat No.H4/76 in the 3^rd floor measuring a plinth area 90.3 sq meter which costs Rs.35,00,000/- approximately  in the lot conducted on 17.11.2011 at 11.a.m . The Opposite Party informed that he will get a provisional allotment letter within a week. However the Complainant did not get any letters from the Opposite Party for nearly 3 years either for provisional allotment or in respect of any other further prospects of the said scheme. Only after 3 years, the Opposite Party sent Ex.A4 letter requiring the consent of the Complainant for the revised rate in the revised scheme of 92 flats. According to the Opposite party after getting approval of the board for the construction of the 104 flat as per the CMDA norms and after allotment of the flats through lot, M/s Jain Housing Limited filed OS.No.774/2011 at District Munsiff,  Ambattur and obtained  interim injection and in view of that, the Opposite Party could not proceed the  project in the year 2011 itself. If it is so, the Opposite Party could have informed the above said fact immediately even during the year 2011 itself to the Complainant and other allottees for their inability to proceed with the above scheme. But the Opposite Party failed to do so.  Infact, the Complainant was only informed in the  year 2014 regarding the revised rate and scheme and sought for the consent of the Complainant.

8. At this point of time, it is pertinent to note that in order to provide access to   M/s Jain Housing Limited through the Opposite Party projects to an extent of 5 meter width in their project as per the instruction given by the CMDA, the Opposite Party executed a gift deed for the said width to the total extent   3.1 acres to the CMDA. The above attitude clearly shows that the Opposite Party has shown very much interest to facilitate a private builder M/s Jain Housing Limited to have such a larger extent of land as access for the sole benefit of the private builder by dispensing the public project nearly for three years and thereby pave way for the enhancement of the cost price of the flat in the revised scheme, the Opposite Party gave the gift deed that too without informing the said developments to its allottees in time, that they could not proceed the project for construction   of 104 flats as per Ex.A1 .

9. It is further noticed that only in the year 2014, Ex.B3 resolution dated 15.12.2014 was passed by the Opposite Party board for construction of 92 flats by means of revised scheme, though the Complainant  deposited a sum of Rs.1,87,000/- through Ex.B2 Demand Draft along with Ex.B1 application and the Opposite Party also issued Ex.A2 receipt for receipt for such amount from the Complainant even in the year 2011. It is a fact that the Complainant has not given the consent for the revised scheme and the Opposite Party also not included his name in the drawl of lot for the revised scheme. When the fact stood like this, the Opposite Party could have very well atleast refunded the deposit amount of Rs.1,87,000/- to the Complainant. While so, the Opposite Party merely stated in Ex.B5 dated 20.01.2015 that if the Complainant did not give consent steps will be taken to refund the amount deposited by him.  However, even though revised lot was conducted, no communication was sent by the Opposite Party to the Complainant with regard to the refund of the amount or refunded the amount by way of cheque or Demand Draft to him as per Ex.B5. Therefore from the above discussions it is crystal clear that the Opposite Party even after allotting the flat to the Complainant did not send any provisional allotment letter within a week as assured by him. The Opposite Party was kept quiet for more than 3 years without any communication   to the Complainant about the said fact why the provisional allotment letter was not sent to the Complainant has not been explained properly. Moreover the Opposite Party has not come forward atleast to refund the deposit amount with reasonable rate of interest to the Complainant within the reasonable time.

10. In the light of the above facts, circumstances and  the observations made above, we conclude that there is a Deficiency of Service on the part of the Opposite Party and thereby it is held that the Opposite Party committed Deficiency in Service in providing service to the Complainant.

 

 

11. POINT NO:2

          The Complainant sought relief of compensation for the delay in construction, mental agony and unethical practice of the Opposite Party. The Complainant has not prayed in the prayer column that he is in need of the flat from the Opposite Party. The Opposite Party is very much interested in executing gift sale deed to facilitate a private builder M/s Jain Housing Limited to enjoy their land through the  Opposite Party land for using access in order to develop his business and the Opposite Party rather to stick on his earlier project to construct 104 flat, he gifted the land 3.1 acre to the CMDA is highly deplorable and deviated from the welfare of the public at large and the object of the scheme. Therefore in such circumstances it goes without saying that for the deficiency committed by the Opposite Party, it would be appropriate to award a heavy compensation to the Complainant would meet ends of justice and accordingly we order the Opposite Party to pay a sum of Rs.2,00,000/- as compensation to the Complainant for the sufferings of mental agony due to the  deficiency committed by the Opposite Party. Apart from that,  the Complainant is entitled for the  refund of the deposit amount of Rs.1,87,000/-  with 9% interest  per annum from the date of deposit  i.e from 28.09.2011 to till the date of this order and with cost of Rs.5,000/- towards litigation expenses.

In the result the Complaint is partly allowed. The Opposite party is ordered to refund a sum of Rs.1,87,000/- (Rupees  one lacs eighty seven thousand only) towards deposit amount to the Complainant   with 9% interest  from the date of deposit 28.09.2011 till the date of this order  and also to pay a sum of Rs. 2,00,000/- (Rupees two lacs only) towards compensation for mental agony besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. Regarding other reliefs the Complaint 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 21^st day of December 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 28.09.2011	Flat sales application advertisement, Terms & conditions for allotment
Ex.A2 dated 28.09.2011	Receipt No.1208444 for Rs.1,87,000/- issued by the Opposite Party
Ex.A3 dated 11.11.2011	Opposite Party’s letter regarding conduct of lots
Ex.A4 dated 26.12.2014	Opposite Party’s letter regarding revised area & cost
Ex.A5 dated 06.01.2015	Complainant’s reply to the Opposite Party’s letter dated  26.12.2014
Ex.A6 dated 00.01.2015	Opposite Party’s letter  to the Complainant’s letter dated 06.01.2015
Ex.A7 dated 02.02.2015	Complainant’s reply to the Opposite Party’s letter dated 30.01.2015
Ex.A8 dated 17.06.2015	Opposite Party’s letter to the Complainant’s letter dated 02.02.2015
Ex.A9 dated 22.06.2015	Complainant’s reply to the Opposite Party’s letter dated 17.06.2015
Ex.A10 dated 30.06.2015	Opposite Party’s letter to the Complainant’s letter dated 23.06.2015
Ex.A11 dated 02.07.2015	Complainant’s reply to the Opposite Party’s letter dated 30.06.2015
Ex.A12 dated 24.07.2015	Opposite Party’s letter dated 24.07.2015 to the Complainant’s letter dated 02.07.2015
LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:   Ex.B1 dated 28.09.2011                Application bearing No.1208444 with                                                        annexure of conditions   Ex.B2 dated 30.09.2011                Demand Draft for Rs.1,87,000/- Ex.B3 dated 15.12.2014                Board Resolution No.4.06   Ex.B4 dated 26.12.2014                Letter sent by Opposite Party                                                        to Complainant   Ex.B5 dated 20.01.2015                Letter sent  by Opposite Party to                                                        Complainant   Ex.B6 dated 17.06.2015                Letter sent by Opposite Party to                                                        Complainant   Ex.B7 dated 30.06.2015                Letter sent by Opposite Party to                                                        Complainant        MEMBER – II                                                               PRESIDENT