Tamil Nadu

StateCommission

CC/47/2013

C.R. SASIDHARAN - Complainant(s)

Versus

TEJSHRI REALTORS PVT. LTD., MANAGING DIRECTOR - Opp.Party(s)

B.L. LAVANYA

23 Aug 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                  PRESIDENT

                TMT. S.M.   LATHA  MAHESWARI,                               MEMBER  

 

C.C.No.47/2013

 MONDAY, THE 23^rd DAY OF AUGUST 2021.

 

 

                                                                           Complaint filed on : 20.02.2013

                                                                      Orders Pronounced on: 23.08.2021

 

 

1.   C.R. Sasidharan,

      Flat No.SF1, Block-A

     

2.   T. Subramanyan,

      Flat  No.GF2, Block  A1.

 

3.   S. Karthick,

      Flat No.GF3, Block – A1

 

4.   G. Jeyakumar,

      Flat No.GF4, Block – A1.

 

5.   R. Samuel Soundararajan,

      Flat No.FF1, Block  - A1.

 

6.   S. Stella Jeyakaran,

      Flat No.FF3, Block –A1.

 

7.   S. Gunesekarn,

      Flat  No.FF4, Block – A1.

 

8.   V. Leela Sravanthi,

      Flat No. SF2, Block - A1.

 

9.   K..P. Varadarajan,

      Flat No.SF3, Block A-1.

 

10.  R. Arunkumar,

      Flart No.SF4, Block A-1.

11.  S. Vijaya Raghavan,

       Flart No. SF 2, Block – A

 

12.  S. Sivaramakrishnan,

       Flat No.TF2, Block  - A1

 

13.  B. Senthilnathan,

       Flat No.GF1 , Block – B.

 

14.  D. Mahesh,

       Flart No. GF3, Block – B.

 

15.  S. Vanitha Rani,

       Flat No.GF-4, Block-B.  

 

16.  K.R. Sridhar,

       Flat No.SF2,  Block-B.

 

17.  G. Nithyanandam,

       Flat No.SF3, Block – B.

 

18.  G. Ashok Kumar,

       Flat No.SF4, Block – B.

 

19.  M.K. Narasimhan,

       Flat No.TF2 & TF4, Block B.

       Sree Saikripa Apartments,

       168-171, M.T.H. Road,

       Villivakkam,

       Chennai – 600 049.                                                                       Complainants

 

     

             Vs

 

 

1.    M/s.  Tejshri Relators Pvt. Ltd.,

       Represented by its Managing Director,

       Mr. A. Munikrishnaiah.

 

2.    A.  Munikrishnaiah,

       Managing Director,

       M/s. Tejshri Realtors Pvt. Ltd.,

 

 

3.    P. Mohan, Director

       M/s. Tejshri Realtors Pvt. Ltd.,

       All carrying on business at

       10/2, Sanjeevi Street,

       Arumbakkam,

       Chennai – 600 106.                                                                  Opposite Parties

 

Counsel for the Complainants:    M/s. B.L. Lavanya Shanker  Advocates.

Counsel for the Opposite Parties:   M/s. M/s. G.V. Sundar Anandh & Meena Sundar,

                                                      Advocates.  

             This complaint coming before us for final hearing today, on 12.08.2021 and on hearing the arguments of the counsel for the complainants the opposite parties having been set ex-parte and on perusing the material records, this Commission made the following

ORDER

HON’BLE   THIRU. JUSTICE R. SUBBIAH, PRESIDENT.    

 

                      This joint complaint has been filed by the complainant under section 17,  r/w section 12 of the Consumer Protection Act, 1986 against the opposite parties claiming the following reliefs;-

                     a)    To hand over all original documents in regard to the project that have not yet been handed over to the complainants,

                      b)     To hand over the car allotment plan or other allotment documents,  

                       c)    To remit the sum arrived at by the civil engineer for rectification/ completion of defects and pending works with interest at the rate of 18% per annum from the date of claim.

                      d)   To pay a sum of Rs.9,32,900/-towards the amounts spent to procure sewer and metro water connection together with interest at the rate of 18% per annum from the date of claim till the date of payment.    

                     e)   To pay a sum of Rs.7,51,556/- incurred by the complainants’ towards collecting the sewer in lorries, additional metro water expenses and such other expenditure in meeting the immediate requirements in common works together with interest at the rate of 18% per annum from the date of claim till the date of  payment.  

                      f)    To pay a sum of Rs.62,081/- to be paid as arrears to the electricity board to regularize and procure three phase EB connection in A Block.  

                     g)    To hand over all the original documents pertaining to the lift, provide the safety inspection certificate and contract details with the M/s Golden Lifts and make the lift operational with immediate effect or in alternate pay a sum of Rs.5,00,000/- to the complainants’’ so that they can arrange an AMC with an authorized Lift maintenance professional.

                     h)   To pay a sum of Rs.5,00,000/- as compensation for all the mental agony, pain and suffering inflicted by the opposite parties on the complainants

                    i)  To pay a sum of Rs.5,00,000/- towards compensation for all the deficiency of service committed by the opposite parties for the last 4 years and more  

                    j)  To pay a sum of Rs.5,00,000/- as compensation for unfair trade practice adopted by the opposite parties in the last four years and also

                      k)    To pay a sum of Rs.1,00,000/- towards cost of these proceedings.   

 1.        The gist of the complaint averments are as follows;-  The 1^st opposite party is a construction company and the 2^nd and 3^rd opposite parties are the directors of the 1^st  opposite party.

              i)   The 1^st  complainant entered into a building agreement with the opposite parties on 09.02.2006 for construction of residential flat for an area of 1689 sqft (including common area) on 809 sqft undivided share of lands. The total consideration of each flat is Rs.33,78,000/- and this amount has to be paid at various stages of construction as detailed in the Scheduled D of the agreement. The construction was to be completed by the last week of June 2007 with grace period of 30 days.   

            ii)    The 2^nd complainant entered into a builders agreement with the opposite parties on 30.08.2006 for construction of flat of an area 900 sqft (including common area) on 520 of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.20,25,000/-  which was to be paid at various stages of construction as detailed in Scheduled D of the agreement.  The construction was to be completed by the last week of December 2007 with grace period of 30 days for any unforeseen circumstances hampering the progress of construction.

           iii)   The 3^rd complainant entered into a builders agreement with the opposite parties on 13.04.2006 for construction of residential flat of an area of 1149 Sqft (including common area) on 565 sqft of undivided share of land conveyed to him by the opposite parties on payment of total consideration of Rs.24,12,900/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement.  The construction was to be completed by the last week of June 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construct ion work. 

          iv)    The 4^th complainant entered into a builders agreement with the opposite parties on 14.07.2006 for construction of residential flat area of 1102 sqft (including common area) on 640 sqft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.24,75,000/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of October 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work. 

v)    The 5^th complainant entered into a builders agreement with the opposite parties on 09.03.2006 for construction of a residential flat of an area of 783 sqft (including common area) on 395 sqft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.15,50,000/-  which was to be paid at various stages of construction as detailed in Schedule D of the agreement.  The construction was to be completed by the last week of June 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.

vi)      The 6^th complainant entered into a builders agreement with the opposite parties on 16.03.2006 for construction of a residential flat of an area of 1135 sqft (including common area) on 565 sqft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.23,83,500/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement.  The construction was to be completed by the last week of June 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.  

vii)    The 7^th complainant entered into a builders agreement with the opposite parties on 28.07.2006 for construction of a residential flat of an area of 1102 sqft (including common area) on 640 sqft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.25,34,600/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of October 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.          

viii)    The 8^th complainant entered into a builders agreement with the opposite parties on 05.07.2006 for construction of a residential flat of an area of 896 sqft (including common area) on 520 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.20,16,000/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of September 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.    

 ix)      The 9^th complainant entered into a builders agreement with the opposite parties on 04.05.2006 for construction of a residential flat of an area of 1135 sqft (including common area) on 625 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.26,67,250/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of April 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.   

x)     The 10^th complainant entered into a builders agreement with the opposite parties on 02.07.2006 for construction of a residential flat of an area of 1102 sqft (including common area) on 650 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.25,34,600/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of October 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.    

xi)     The 11^th complainant entered into a builders agreement with the opposite parties on 14.12.2006 for construction of a residential flat of an area of 1701 sq.ft (including common area) on 986 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.53,50,000/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of March 2008 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.    

xii)    The 12^th complainant entered into a builders agreement with the opposite parties on 07.01.2007 for construction of a residential flat of an area of 900 sq.ft (including common area) on 522 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.25,30,000/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of March 2008 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work. 

xiii     The 13^th complainant entered into a builders agreement with the opposite parties on 18.09.2006 for construction of a residential flat of an area of 1029 sq.ft (including common area) on 596 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.24,18,150/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of December 2008 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.  

xiv)   The 14^th complainant entered into a builders agreement with the opposite parties on 03.03.2007 for construction of a residential flat of an area of 833 sq.ft (including common area) on 283 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.21,66,633/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of February 2008 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.

xv)    The 15^th complainant entered into a builders agreement with the opposite parties on 22.09.2006 for construction of a residential flat of an area of 920 sq.ft (including common area) on 534 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.23,59,800/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of December 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.    

xvi)   The 16^th complainant entered into a builders agreement with the opposite parties on 11.09.2006 for construction of a residential flat of an area of 1029 sq.ft (including common area) on 565 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.25,21,050/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of December 2007 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.    

xvii)    The 17^th complainant entered into a builders agreement with the opposite parties on 25.07.2007 for construction of a residential flat of an area of 905 sq.ft (including common area) on 275 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.36,20,000/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of February 2008 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.    

xviii)   The 18^th complainant entered into a builders agreement with the opposite parties on 13.10.2007 for construction of a residential flat of an area of 960 sq.ft (including common area) on 300 sq.ft of undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.38,40,000/- which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of March 2008 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work.   

xix)   The 19^th complainant entered into a builders agreement with the opposite parties on 20.12.2006 for construction of a residential flat of an area of 920 sq.ft (including common area) on 533 sq.ft of two undivided share of land conveyed to him by the opposite parties on payment of a total consideration of Rs.14,25,000/-which was to be paid at various stages of construction as detailed in Schedule D of the agreement. The construction was to be completed by the last week of March 2008 with a grace period of 30 days for any unforeseen circumstances hampering the progress of construction work. 

2.       In each builders agreement, it has been clearly mentioned that if there is any further delay beyond the period of 30 days, the grace period to complete the construction, the opposite parties assured each of the complainants that they will pay them interest at the rate of 18% per annum on the amounts paid by them respectively for construction till the completion of construction of flat and handing over the same to the respective complainants.  Though the complainants had trusted the opposite parties completely and tried to make the payments as per the schedule there was a delay in proceeding with the construction right from the beginning. Though an assurance was given to some of the complainant that the flats would be handed over at various stages in between June 2007 to June 2008, till June 2008, no efforts were made to complete the project.  As per the builders’ agreement if there is any delay on the side of the builders from the date of handing over the possession mentioned in the builders agreement, the complainant is entitled to get interest at the rate of 18% per annum on the amount paid by the complainants for construction till the flat is handed over. Though the complainants waited for sufficient time, the opposite parties did not make any efforts to complete the project.  Further, the opposite parties without providing basic amenities like electrical wiring, sewerage and metro water connection to the flat owners, started to hand over the flats to the complainants for occupation without completing the construction in several aspects.   The followings are the works to be completed or left undone.  

          1.  Removing construction Debris from site.

          2.  Sewerage and Metro water connections.  

          3.  Provision of protective cover for the EB Meter area.

          4.  Proper electrical wiring and marking of meters

          5.  Provision of three phase electric connection in A Block and common area.

          6.  Closure of all sewer chambers after thorough clearing

          7.  Commissioning of lifts

          8.  Marking & allotment of car park in a transparent way

          9.  Provision of tube light fitting in car park

          10. Provision of tube light in all round the complex

          11. Provision of light fittings outside the blocks

          12. Provision of CFL fitting for illumination of staircases

          13. Providing compound wall on the eastern side.

          14. Provision of gate on the Eastern side of the complex properly.

          15. Provision of gate and laying of road on the western side.

          16. Proper installation of main gates including painting and welding

          17. Provision of staircase, providing hand rails for staircases in all blocks.

          18. Laying tiles in common area

          19. Laying of tiles in staircases

          20. Replacing of any damaged tiles

          21. Painting of the building in the exterior

          22. Painting of common area including windows, staircases.  

          23. Painting of compound wall after proper plastering

          24. Erection of pumps for bore-well

          25. Provision of doors with locking arrangement at terrace entry.

          26. Provision of Head room door with locking arrangement

          27. Shed for security at the gate

          28. Preparation of drawings for layout of plumbing lines and electrical wiring

                layout as done.    

          29. Construction of Motor room

          30. Erection of pump for sump with a like connecting the sump & overhead tank

          31. Provision of doors for pump set cubicle

          32. Provision of individual valve control for water line for each flat.

          33. Provision of level indicator in over head ranks and auto shut off.    

          34. Separation for bore-well water & metro water tank  

          35. Drain pipe from flat to drainage chamber in block A1.

          36. Separate drain pipe laying for balcony outlet pipes.

          37. Arresting of leakage of water from drain pipe, floor etc.,. 

          38. Provision of name boards and letter box for individual flats

          39. Provisions of name boards for each block    

3.   Therefore, the complainants formed an Association of Flat Owners and wrote to the opposite parties on 25.09.2008 requesting them to complete the project. The opposite parties also promised to complete the same by letters, dated 19.05.2008, 19.07.2008 and 04.10.2008.  But, they have not kept up their promises.  Hence, meeting was arranged and held between the flat owners and the opposite parties 2 & 3.

4.     In the meeting convened again, the opposite parties agreed to complete the project by 10.01.2009 and hand over the possession to the respective complainants by 15.01.2009.  Though the opposite parties agreed to complete the project in the meeting held between the Flat owners and the opposite parties, they have not chosen to provide metro water and sewerage connections. Again, the meeting was held in the year 2009 with the opposite parties wherein they have expressed that though they had collected a sum of Rs.33,000/- individually from each of the flat owners, due to some financial crisis they could not complete the work since they need more funds from the flat owners for providing metro water and sewerage connection. Since the opposite parties had given some lame excuse for not completing the project,  some complainants were in dilemma and initially as some of the flat owners were reluctant to pay the amount to the opposite parties,  finally funds were mobilized from 8 flat owners and cash from others was collected in total for a sum of Rs.4,62,000/-,  bankers’ cheque was obtained in favour of CMWSSB .  However, the opposite parties did not hand over the banker’s cheque to CMWSSB and when the complainant enquired about the same the opposite parties again asked the complainants to mobilise further sum of Rs.1,50,000/- for miscellaneous expenses for procuring metro water and sewerage connections.  The opposite parties wrote a letter, dated 04.05.2009 to the Associations requesting for cash payment of Rs.25,000/- which was paid to the 3^rd opposite party in person.  In spite of support provided by the complainants,  there was no action from the opposite parties. Hence, the complainants addressed communications, dated 15.05.2009, (2 letters), 18.05.2009, 27.05.2009, 12.06.2009, 21.06.2009 and by e-mail dated 21.08.2009 expressing their displeasure and requesting the opposite parties to follow-up and complete  the pending works including fair and transparent allotment of car park for which there was only one reply from the opposite parties on 19.06.2009.   

5.         Further, the case of the complainant is that in spite of having provided all the financial support, the opposite parties have failed to get the sewerage and metro water connection and since there was no sewerage connections, the complaints had to make their own arrangements to clear the sewerage using tanker lorries and the overflow of the sewerage was creating unhygienic living conditions. Therefore, the complainants had decided to get the sewerage connection themselves by moving Chennai Metro Water Development Authority. The arrangement of constructing underground pits with cement rings and collecting the overflowing sewerage was costing them Rs.15,000/- which was debited to the opposite parties.  However, the opposite parties did not complete the electrical wiring in the project.  On taking charge, the complainants came to know that there was some arrears in electrical charges payable by the opposite parties and the same was remitted by the complainants.  Several works were completed by the owners of the flat themselves by collecting funds. Poor quality of material, poor workmanship in the construction leads to leakage and cracks everywhere. The details of amounts collected by the opposite parties from the complainants and additional amounts collected by the complainants  among themselves and other flat owners to pay the same to CMWSSB for sewer and water connections are as follows;-

1)  The amount paid on 17.06.2010 by the complainants to CMWSSB as infrastructure charges for Sewer Connection Rs.86,500/-,

2)  The amount paid on 01.07.2010 by the complainants to CMWSSB for Sewer Connection Rs.3,52,500/-,

3)  Amount paid on 05.07.2010 by the complainants for Advance Tax CMWSSB for Sewer Connection Rs.1,41,000/- and

4)  the amount paid by complainants to CMWSSB for Metro Water Connection Rs.3,52,900/- and thus a total sum of Rs.9,32,900/- was paid. 

6.        Similarly, additional expenditures incurred for Metro Water Connection and for pipe laying and infrastructure, EB Cable laying, EB meter, Closing leaks., etc., are as follows;-

1)  Additional expenses incurred for the period from 28.05.2010 to 20.06.2012 for Metro Water infrastructure and pipe laying and sump connection, separate meter and EB cabled laying for a sum of Rs.3,05,850/-,

2)  Sewer cleaning by lorry charges for the period from 07.09.2009 to 07.09.2010 for a sum of Rs.2,25,000/-,

3)    Slab for OH tank, Drain Pit Slabs, Cleaning and  closing sewer chambers for the period from 19.06.2010 08.12.2011, a sum of Rs.41,654/-,

4)    Arresting leaks, Cover for Bore, sump, Pump set erecting, B Block OH Tank Leak arresting with FRP Lining for the period  from 31.10.2009 to 08.10.2011 for a sum of Rs.71,345/-, 

5)  Securing Cabin Construction Cost, from 10.01.2011 to 31.01.2011 for Rs.28,489/-,

6)    Lighting for the period from 11.11.2009 to 01.02.2011 for Rs.9188/- and

7)    Handrail Welding, Grill, Fencing, Fabrication and Painting Work incurred for the period from 10.03.2011 to 26.01.2012 Rs.70,030/-,  in total a sum of Rs.7,51,556/- was spent.  

7.     The opposite parties have sold the ground floor and 1^st floor of Block A1 for commercial purposes without providing them a separate water tank or pump-set connection.  Now, as the commercial block is using the water from the residential block, all the residents are being charged with a commercial tariff. Due to this act of the opposite parties, the complainants are being undergoing unnecessary harassment. The followings are the pending works to be completed as on date. 

          1.  Painting of exterior and interior of building and  common area including

              Staircases.  

          2.  Main entrance lights

          3.  Providing compound wall on the eastern side of the complex

          4.  Road Laying

          5.  Laying tiles in common area and replacing the damaged tiles

          6.  Arresting of leakage of water from drain pipe, floor etc.,

          7.  Water leakage in Electrical meter cubicle in “A1 “Block.

          8.  Provision of protective cover for the EB meter area and marking of meters  

          9.  Provision of three phase meter connection in A Block and common area

          10. Bad smell from the sewer to be arrested by suitably providing exhaust line

                in all chambers

          11. Relaying of cement flooring including car park

          12. In “B “Block open area parapet wall in stair case area height to be raised to

              4.5 feet.

          13. Separate drain pipe laying for balcony outlet pipes in “B” Block

          14.  Provision of individual valve control for water line for each flat

          15.  Provision of individual name boards & letter box in each Block

          16.  Completion of pending works in Lifts & making safety arrangements.

          17.  Provision of Separate water and pump connection for commercial block

          18.  Handing over the original contract document entered with the Lift provider,

                 safety inspection certificate and AMC for one year. 

          19.  Handing over of balance documents like car park allotment scheme etc.,  

          20.  Providing the drawings/layout of plumbing lines and electrical wiring   

 8.   The followings are the quotation given by Trinity Marketing Enterprise dated       10.02.2011 and Royal Landmarks dated 07.12.2012 to complete the pending works in the flats.

1)   For A Block, Quotation for cleaning all the walls & filling the cracks, weather shield painting for exterior walls, water proofing the terrace and water rank, applying two coats of white wash for ceiling, primer and two coats of tractor emulsion for interior walls, Rs. 3,39,896-00.

2)     A Block, Quotation for removing existing pipes and installing news UVc Pipe line (South, East, West Side) for Rs.1,65,750-00

          3)   A1 Block, Quotation for cleaning all the walls & Filling the cracks, weather shield painting for exterior walls, water proofing the terrace and water tank, applying two coats of whiter wash for ceiling, primer and two coats of tractor emulsion for interior walls for Rs. 3,53,883-00.

          4)     A1 Block, Quotation for removing existing pipes and installing new UVc Pipe  (North, South, East, West, Duct Area) for Rs.2,83,750-00.

          5)      B Block, Quotation for cleaning all the walls & filling the cracks, weather shield painting for exterior walls, water proofing the terrace and water tank, applying two coat of white wash for ceiling, primer and two coat of tractor emulsion for interior walls.

          6)     B Block. Quotation for removing existing pipes and installing new UVC Pipe line (North, South, East, West, Duct Area) for Rs.2,77,250/-

          7)    Quotation for water proofing the toilet for Rs.12,000/-

          8)  Quotation for Road – Paver Block Laying – Main Gate Passage for Rs.2,80,046.00.

          9)     Quotation for Road – Paver Block laying II Gate Passage for Rs.2,38,918.00 

9.      In addition to the above amounts, to complete the pending works viz., compound wall on the eastern side, lights, EB meter cover, name boards & letter boxes at entrances of each block, separate water and sumps connection for the commercial block etc., would cost of Rs.15,00,000/-. Claiming all the above reliefs, the complaints have filed their joint complaints before this Commission.   

10.      By resisting the complaint, the opposite parties 1 to 3 have filed their joint written version denying all the above allegations made in the complaint by contending inter alia that the 1^st opposite party after successfully completing their project “Sree Saikripa Apartments” at No.168-171, M.T.H. Road, Villivakkam, Chennai, closed down their business and now they are not in existence.  Further, the complaint is not maintainable before this Commission as per the terms and conditions of the buyers’ agreement entered in to between the respective complainants and the opposite parties. All the disputes arising out of the builders agreement shall be referred to arbitration by a single Arbitrator nominated jointly by the parties thereto.  In fact, the entire project was fully completed by the opposite parties to the maximum satisfaction of the complainants as evidenced from the handing over letters signed by the respective Flat Buyers as early as in the year 2008.  After taking over the possession of their respective flats in good condition with completion of all works as per the builders’ agreement and valid acknowledgment given for the same, the complainants have come forward with the false complaint with an ulterior motive to harass the opposite parties and get wrongful enrichment. The complaint was filed on 28.02.2013 only after a lapse of more than five years even after taking over their respective flats in good condition with completion of all works as per the Builders Agreement. The complainants have raised more than 39 claims against the opposite parties and claimed huge sums as compensation on various imaginary and untenable grounds alleging deficiency of service and unfair trade practice against the opposite parties. Only 19 out of 48 Buyers, have approached this Commission after a lapse of five years after having taken over the possession and occupation of their respective flats, which would clearly show that the complaint lacks bono fide.  As per the “escalation clause” mentioned in the terms and conditions, the complainants are liable to pay escalated costs at the rate of Rs.450/- per sq.ft and as such they are liable to pay a total sum of Rs.90,00,000/- to the builders and accordingly the opposite prates raised the claim but the complainants failed and neglected to pay the said amount.  In the handing over letters, duly signed by the respective complainants while they were taking possession of their respective flats, the complainants have stated that the flats were in good condition as per the buyers’ agreement.  Hence, the complainants are not entitled to file this complaint against the opposite parties as they have not made out any case of either deficiency in service or unfair trade practice against the opposite parties and therefore, the opposite parties sought for dismissal of the complaint.    

10.    On the side of the complainants, proof affidavit was filed reiterating the averments made in their complaint and Exhibits A1 to A59 were marked on their side. Whereas on the side of the opposite parties, neither proof affidavit nor document was filed and marked.  A report filed by the Advocate Commissioner is marked as Ex C1.  

11.     Based on the above submissions made by both sides and documents marked, the following points were raised for considerations. 

           1)   Whether the complaint is maintainable before this Commission?   

           2)   Whether the complainants have proved their case of deficiency in service

                 and unfair trade practice on the side of the opposite parties?

           3)   Whether the complainants are entitled to the reliefs as claimed in the

                 complaint?

12.  Point No.1:-   We have considered the submissions made by both sides and perused the entire records.  We find that in the written version, the opposite parties have not taken any specific defence by denying the allegations made in the complaints.  The entire submissions made in the written version are vague and bald averments.   A technical defence was taken by the opposite parties stating that the builders’ agreement has arbitration clause and the complainants ought to have resorted to arbitration proceedings.   This defence is not legally sustainable in view of the following settled legal proposition.  The Hon’ble National Commission, in its decision,  reported in 2013 (2) CPR 756 (NC), in the case of DLF Limited and Others  - Vs -  Mirudul Estate (Pvt.) Ltd., and others has categorically held that the Consumer Fora are not bound to refer the dispute to Arbitral Tribunal in terms of valid arbitration clause in the agreement.  Further, the Hon’ble National Commission has also decided that the “complaint filed by a consumer before the Consumer Forum would be maintainable despite there being an arbitration clause in agreement to refer the dispute to Arbitrator – Consumer Protection Act is a special remedy with objective of  redressal or grievance of affected consumers.  If small consumers are relegated to Alternative Dispute Resolution mechanism of arbitration, remedy provided under CP Act would become illusionary”.   The Hon’ble Supreme Court, in its judgement reported in I (2019) CPJ 5 (SC), in the case of Emaar MGF Land Limited – Vs – Aftab Singh has held that “Complaint under Consumer Protection Act 1986 being special remedy, despite there being an arbitration agreement, proceedings before the Consumer Forum have to go on and further held that “Consumer disputes to be non-arbitrable”.  Therefore, in view of the above decisions of the Hon’ble Apex Court the complaint is maintainable before the Consumer Commission as the complainants are entitled to file their complaint before this Commission. The point is answered accordingly.   

13.        Point Nos. 2 & 3: - During the course of proceedings before this Commission,  an advocate commissioner was appointed who inspected the premises with a qualified civil engineer on 22.03.2014 at 11.30 a.m. and completed the same at 01.30 p.m. in the presence of both parties and their respective counsels and filed a  detailed report noting down the following defects in the construction. 

          1.  There is no compound wall at eastern side (part) of the property.

          2.  The existing property laid concrete road is in bad condition.

          3.  There is no main entrance gate light fitting.

          4.  There is no common entrance area light fitting.

          5.  There is no western side chamber for electrical cables.

          6.  There is no parapet wall brick work, 4½ “thick above overhead tank which

               may leads to hazardous to the cleaning labours.  

          7.  There is no heavy duty chamber cover.

          8.  There is no metro water chamber.

          9.  There is no grill in compound wall near Axis Bank front block.

          10. The height of the western side main gate is not sufficient.

          11. There is no “A1 “Block car parking light fittings.

          12. Part of the open terrace weathering tiles in A, A1 & B Blocks are in damaged

               condition due to the unburnt weathering tiles.

         

          13. There is no staircase hand rail in “A “Block (This work is done by the

                Association not by the builders).

          14.  Outer wall painting work is not done in A, A1 & B Blocks.

          15.  Due to the smoke the ceiling area is in black color. The white washing is not

                 done in this area.  

          16. Toilets leakages are there due to the poor workmanship and materials.

          17. ‘A1 ‘Block car parking grano flooring is not done.

          18. Outer electrical wiring and pending works in main EB panel is not done.   

          19. Lift machine base fixing is not done in the lift room-3 Blocks.

          20. Construction of pump room is not done.

          21. Rain water harvesting is not done.

          22. Providing and fixing of safety grills in staircase is not done and the steps are

              uneven. 

          23. The lifts are in bad condition even light and fan is not available.  The walls of

              the lifts are in bad condition.  

          24. Poor quality tiles are used in the common area & staircase which leads bad

              condition of tiles in these areas.

          25. There is no door locking arrangements at open terrace entrance.

          26. Painting of windows in outside walls is not done

          27. Individual valve control for water line for each flat is not done.

          28. Separate drain pipe laying to connect the balcony outlet pipe is not done.

The opposite parties have also filed their objections to the above report stating that the Commissioner has exceeded the scope of warrant and as such the Commissioner lacks  bonafide.

14.       Similarly, we find that the Commissioner’s report clearly establishes several defects in the construction.  But, the objection filed by the builders does not deal with the defects pointed out by the advocate commissioner whereas, by making general denial, the objections were filed.  Therefore, we are of the considered opinion that the complainants have clearly established their case through documentary evidence that there is deficiency in service on the part of the opposite parties/builders in constructing the flat and handing over the same to the respective complainants. Therefore, on the basis of documentary evidences, we come to the conclusion that the complainants have evidently proved their case that the opposite parties have committed deficiency in service and indulged in unfair trade practice and consequently they are entitled to get the reliefs as claimed in the complaint. The points are answered accordingly.

15.       In the result, the complaint is allowed in toto and the opposite parties 1 to 3 are directed to jointly and severally

                a)     To hand over all original documents in regard to the project that have not yet been handed over to the complainants, 

                b)   To hand over the car allotment plan or other allotment documents 

                 c)  To remit the sum arrived at by the civil engineer for rectification/completion of defects and pending works with interest at the rate of 18% per annum from the date of claim.

                d)     To pay a sum of Rs.9,32,900/-towards the amounts spent to procure sewer and metro water connection together with interest at the rate of 18% per annum from the date of claim till the date of payment.

                e)      To pay a sum of Rs.7,51,556/- incurred by the complainants’ towards collecting the sewer in lorries, additional metro water expenses and such other expenditure in meeting the immediate requirements in common works together with interest at the rate of 18% per annum from the date of claim till the date of  payment.               

            f)    To pay a sum of Rs.62,081/- to be paid as arrears to the electricity board to regularize and procure a three phase EB connection in A Block. 

            g)  To hand over all original document pertaining to the lift, provide the safety inspection certificate and contract details with the M/s Golden Lifts and make the lift operational with immediate effect or in alternate pay a sum of Rs.5,00,000/- to the complainants’’ so that they can arrange an AMC with an authorized Lift maintenance professional.

            h)   To pay a sum of Rs.5,00,000/- as compensation for mental agony, pain and suffering inflicted by the opposite parties on the complainants,

             i)   To pay a sum of Rs.5,00,000/- towards compensation for the deficiency of service committed by the opposite parties for the last 4 years and more 

             j)  To pay a sum of Rs.5,00,000/-as compensation for unfair trade practice adopted by the opposite parties in the last four years and also 

             k)  To pay a sum of Rs.1,00,000/- towards cost of these proceedings.

 

 

 

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                               PRESIDENT

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANTS

 

Ex  A1   09.02.2006  Builders agreement entered into between the 1^st complainant and

                               the 1^st opposite party.

Ex  A2  30.08.2006   Builders agreement entered into between the 2^nd  complainant and

                              the 1^st opposite party.          

Ex  A3  13.04.2006   Builders agreement entered into between the 3^rd  complainant and

                              the 1^st opposite party.

Ex  A4  14.07.2006  Builders agreement entered into between the 4^th complainant and

                              the 1^st opposite party.

Ex  A5  09.03.2006   Builders agreement entered into between the 5^th complainant and

                               the 1^st opposite party.

Ex  A6  16.03.2006    Builders agreement entered into between the 6^th complainant and

                               the 1^st opposite party.

Ex  A7  28.07.2006  Builders agreement entered into between the 7^th complainant and

                             the 1^st opposite party.

Ex  A8  05.07.2006  Builders agreement entered into between the 8^th complainant and

                              the 1^st opposite party.

Ex  A9  04.05.2006   Builders agreement entered into between the 9^th complainant and

                               the 1^st opposite party.

Ex A10 02.07.2006   Builders agreement entered into between the 10^th complainant and

                               the 1^st opposite party.

Ex A11 14.12.2006   Builders agreement entered into between the 11^th complainant and  

                              the 1^st opposite party.

Ex A12 07.01.2007   Builders agreement entered into between the 12^th complainant and

                              the 1^st opposite party.

Ex A13 18.09.2006   Builders agreement entered into between the 13^th complainant and

                              the 1^st opposite party.

Ex A14 01.03.2007   Builders agreement entered into between the 14^th complainant and

                              the 1^st opposite party.

Ex A15 22.09.2006   Builders agreement entered into between the 15^th complainant and

                              the 1^st opposite party.

Ex A16 11.09.2006   Builders agreement entered into between the 16^th complainant and

                              the 1^st opposite party.

Ex A17 25.07.2007   Builders agreement entered into between the 17^th complainant and

                              the 1^st opposite party.

Ex A18 13.10.2007   Builders agreement entered into between the 18^th complainant and

                              the 1^st opposite party.

Ex A19 20.12.2006   Builders agreement entered into between the 19^th complainant and

                              the 1^st opposite party.

Ex A20 20.12.2006   2nd Builders agreement entered into between the 19^th complainant

                              and the 1^st opposite party.

Ex A21 19.05.2008   Communication from opposite parties to the complainants.

Ex A22 19.07.2008   Communication from opposite parties to the complainants.

Ex A23 25.09.2008   Letter from the 1^st complainant on behalf of the association to the

                              opposite parties.

Ex A24 04.10.2008   Communication from opposite parties to the association

Ex A25 08.12.2008   Minutes of the meeting between the flat owners representatives

                              and the opposite parties.

Ex A26 17.04.2009   Communication from the 1^st complainant to the opposite parties  

(Series)                   in regard to payments made by some of the complainants for

                             sewerage connection.   

Ex A27 04.05.2009  Communication from opposite parties to the association demanding

                             payment for Metro Water Sewerage connection.  

Ex A28 15.05.2009  Communication from opposite parties to the association.

Ex A29 19.05.2009  Communication from opposite parties to the association. 

Ex A30 18.05.2009  Communication from Association to the opposite parties in regard

                              to all pending works.

Ex A31 27.05.2009  Communication from Association to opposite parties.

Ex A32 12.06.2008  Communication from Association to the opposite parties about

                             Metro Water sewerage connection and pending works.

Ex A33 19.06.2009  Communication from Association to the opposite parties about

                              Metro Water sewerage connection.

Ex A34 21.06.2009   Communication from Association to the opposite parties.

Ex A35 21.08.2009   E-mail from the Association to the opposite parties. 

Ex A36 11.09.2009   Communication from Association to the opposite parties.

Ex A37 20.09.2009   Internet communication from the Association to its Members.

Ex A38 23.12.2009   Communication from the Association to the opposite parties about

                              pending Civil Works.

Ex A39 16.02.2010   Communication from the opposite parties to the Association.

Ex A40 24.02.2010   Communication from Association to the opposite parties with

                              reference to sewerage work and pending civil works.

Ex A41 25.03.2010   Communication from the Opposite parties to the Association,

                              requesting for payments towards sewerage connection.

Ex A42 25.05.2010   Receipt issued by the opposite parties favouring the association for

                              a sum of Rs.3,53,000/-towards sewage connection.

Ex A43        2010     Demand Draft taken out by the Association to CMWSSB for

(series)                    sewerage  connection.

Ex A44       2012       Electricity Meter card mentioning due by the opposite parties

(Series)

 

Ex A45 27.11.2010  Letter from the Association to the opposite parties intimating

                             dishonour of cheque

Ex A46 18.12.2010  Communication from the opposite parties to the Association

                              intimating pending works

Ex A47  04.01.2011  Communication from Association to the opposite parties

Ex A48  05.01.2011  Communication from the opposite parties to the Association

Ex A49  18.01.2011  Communication from the Association to the opposite parties

                              requesting for payment and complete pending works.

Ex A50                     Post dated cheque and return memo 

(Series)

Ex A51  10.02.2011   Letter addressed by the Association to the Accounts Officer

                               CMWSSB.

Ex A52  04.04.2011   Communication from the Association to the opposite parties &

                                Acknowledgement

Ex A53 31.07.2011     Communication from the Association to the opposite parties &

                                Acknowledgement.

Ex A54  06.08.2011    Communication from the Association to the opposite parties &

                                Acknowledgement.

Ex A55  15.09.2011    Communication from the Association to the opposite parties.

Ex A56  15.09.2011   Communication from the Association to the opposite parties about

                               commissioning of lift  

Ex 57  July 11 to March 11 -  Application submitted with CMWSSB by the complainants

(Series)                                  & receipts issued ink lieu thereof by CMWSSB.

Ex 58  30.03.2010 to 20.06.2012   -Additional Expenses incurred for Metro Water.

(Series)                                        infrastracture and pipe laying and sump connection.

                                                   Separate Meter and EB cable laying.

        14.09.2019 to 07.09.2010 –   Sewer cleaning by lorry charges from

        19.06.2010 to 08.12.2011  -   Slab for OH tank, Drain pit Slabs, Cleaning and

                                                   closing sewer chambers .

        31.10.2009 to 08.10.2011      Arresting leak, Cover for Bore, Sump, Pump set

                                                   errection, B OH Tank leak arresting with FRP lining.

        10.01.2011 to 31.01.2011      Security Cabin construction cost

        11.11.2009 to 01.02.2011      Lighting

        10.03.2011 to 26.01.2012      Handrail welding, Grill, Fencing, Fabrication and

                                                    painting work  

Ex 59  10.02.2011 to 07.12.2012     Quotation by a 3^rd party (Trinity Enterprises

                                                    Marketing Limited) for the works to be done in

                                                    common area /Block 1. Block A & Block B i.e.,

                                                    cleaning & filling cracks / Painting walls,

                                                    waterproofing water tank, Terrace and toilet,

                                                    removing existing pipes with new one, Road laying.  

 LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES

NIL    

 

LIST OF DOCUMENTS MARKED BY THIS COMMISSION

Ex  C1      31.07.2014                   Advocate Commissioner Report along with

                                                  inspection report dated 18.06.2014 submitted by

                                                  a qualified Civil Engineer          

                       

 

 

S.M. LATHA MAHESWARI,                                                                 R. SUBBIAH,

           MEMBER.                                                                                  PRESIDENT. 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/August/2021