Tamil Nadu

South Chennai

37/2005

Mr.Sriram Venkataraman - Complainant(s)

Versus

The General Manager,Hansa Estate,Pvt.Ltd. - Opp.Party(s)

M/S.Baskaran,D.Jawahar

23 Feb 2017

ORDER

                                                                        Date of Filing :   14.12.2004

                                                                        Date of Order :   23.02.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

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

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 37/2005

THURSDAY THIS  23^rd   DAY OF FEBRUARY 2017

Mr. Sriram Venkataraman,

Flat No.A1 & A3 Hansa Nest,

NO.55, Manimegalai Street,

East Tambaram,

Chennai – 59.                                               .. Complainant.

 

                                   ..Vs..

The General Manager,

Hansa Estates Pvt. Ltd.,

Khivraj Estates 4^th Floor,

No.624, Anna Salai,

Chennai – 6.                                                   ..Opposite party.

 

Counsel for the Complainant          :  M/s. S.Baskaran & another

Counsel for the opposite party       :  M/s. N B N Swamy.  

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to submit the original bills and accounts with respect to the E.B security / caution deposit and registration work, and to return bank the original documents  and to fund the excess payment of Rs.42,000/-  and to pay cost of construction of laying spiral stair case of Rs.38,325/- minus the deduction  of Rs.8250/- amounting to Rs.30,075/- and to pay Rs.50,000/- towards mental agony and stress and Rs.10000/- as cost of the complaint and legal expense.

1. The averment of the complaint are brief as follows:

         The complainant booked two flats with the opposite party by paying an initial advance of Rs.50,000/- through cheque on 912193 dt. 18.4.2003 and an another sum of Rs.1,15,050/- through cheque on 912198 dt. 26.5.2003 and subsequent payment on various dates.  The total cost of construction as stated by the opposite party (1493 sq ft.  @ Rs.850/-) which amounted to Rs.12,69,050/- inclusive of the value of undivided share of land with addition of TNEB connection – III Phase charge of Rs.20,500/- stamp duty and registration expenses Rs.75,500/- was paid by the complainant.

2.     The complainant preferred some modification in the existing set up in Flat No.A1 & A3 which was purchased by the complainant from the opposite party, for which the expenses raised by the opposite party as per the bill dt. 29.3.2004 was Rs.1,54,237/- and the other bill dt. 7.7.2004 was Rs.3,160/- which was very much disputes by the complainant as the modification bill raised by the opposite party was not in itemized manner and the amount raised in the bill was found to be  in huge excess when compared with the standard market survey, which was found to be four times in excess as to the bill amount raised by the opposite party.  

3.     The number of letter correspondence and telephonic message was given by the complainant, there was neither a proper reply nor you made an attempt to access to the issue and replies were very vague, that the complainant does not expect such an action from a highly reputed institution and thereby the opposite party has indulged themselves in unfair trade practice, and the complainant has become a victim.    Even after the final settlement and excess payment received by the opposite party with respect to Flat A1  & A3 the opposite party have deliberately and purposefully refrained themselves in handing over all the original documents pertaining to the Flat 7 A3, such as E.B security / caution deposit.  Municipality related bills, the occupation certificate property tax receipts, etc. which really shows their maladministration, mismanagement, inefficiency, and deficiency in their service.

4.     Due to derelictions of duty and deficiency in service on the part of the opposite party, the complainant has suffered loss and injury on account of deprivation, harassment, mental agony and loss of professional practice, for which the opposite party is liable to compensate for the same.  Hence the complaint.

5. Written Version of  opposite party is  in brief as follows:

         In fact the sale deed dated 27^th august 2003, which is registered as document No.4922/2003 in the office of the Sub-Registrar, Tambaram is only for the conveyance of 1,224.45 sq. ft. undivided share of land.  In fact there is no question of the complainant to purchase an undivided share of land to put up construction in the said plot of land measuring 1,493 sq. ft. and accordingly to get the flats constructed, the complainant and his wife entered into an agreement of construction dated 8^th May 2003 with the opposite party.

6.     According to the terms and conditions of the said agreement of construction the complainant had to pay a total sum of Rs.12,69,050/- i.e. Rs.3,21,315/- towards cost of undivided share of land and Rs.9,47,735/- towards the cost of construction and the said amount had to be paid in installments as specified in schedule “D” of the said agreement of  construction.  

7.     On signing the said agreement the complainant paid a sum of Rs.50,000/- to purchase the undivided share.  As against the first installment payment of Rs.2 lakhs which had to be paid on or before 20.5.2003 the complainant  paid a sum of Rs.1,15,050/- on 26.5.2003, as against the payment of Rs.1,94,168/- payable as second installment on or before 20.6.2003 the complainant had paid a sum of Rs.40,000/- on 21.8.2003 as against the third installment of Rs.1,90,357/- payable by the complainant on or before the completion of the basement level (July 2003) the complainant and his wife have paid a sum of Rs.6 lakhs through their financers viz ICICI  Home Finance Company limited on 27.8.2003 and as against the remaining installments they have paid a sum of Rs.4 lakhs through their financier ICICI HFCL on 31.1.2004 and a further sum of Rs.4,97,500/- on 12.5.2004 totaling to a sum of Rs.17,02,550/- that i. Rs.4,33,500/- in excess of the amount mentioned in schedule “D” of the agreement of construction.   The said excess amount is not paid pursuant to the agreement of construction entered into between this opposite party and the complainant and his wife.   The said excess amount is deductible towards TNEB three phase connection amounting to a total sum of Rs.20,500/- and stamp duty and registration expenses for getting the sale deed registered amounting to Rs.75,500/-  Further a sum of Rs.1,54,237/- was deductible towards modifications made as per the requirement of the complainant after the estimate was approved by the complainant, which is outside the scope of agreement of construction entered into and a bill on that behalf was raised on 29.3.2004 and further modification were requested by the complainant and an amount of Rs.3160/- was raised for the said additional modifications.  A total deduction of Rs.61,847/- was passed on to the complainant as a kind gesture inspite of the fact that certain works as required under the agreement was not required to be carried out in view of the modifications required by the complainant and his wife for the construction of their apartment A1 and A3 in Hansa Nest.  The remaining amount of Rs.2,41,950/- was refundable to the complainant and his wife’s account after deducting the interest as applicable for delay in paying the installment amounts.

8.     In fact, if the calculation is taken into consideration there is a difference of Rs.5,000/- only and not more.    As per letters dated 18.5.2003 and 18.10.2003 of the complainant which are not part and parcel of the specifications mentioned in the agreement of construction though the said works were carried out outside the scope of the said agreement of construction.    The estimate for the said modification has been submitted by the complainant to his Financiers i.e. ICICI Housing Finance Limited and they in turn have found the rates mentioned therein as feasible and approved the said estimate and released the loan accordingly.

9.     In fact it is the complainant  who has indulged in unfair means.   The complainant for the purpose of additional loan has submitted the estimate given by the opposite party to the effect that the additional works being done to the flats would be of the estimate given.   The modifications of the work and its estimate as provided by the opposite party is approved and sanctioned by the bank.    When the extra amount sanctioned by the bank has to be refunded, instead of permitting this opposite party to refund the said excess amount granted by the bank to the bank itself, the complainant desires to receive and retain the amount received from the opposite party to make unlawful gains. 

10.    The opposite party agreed to construct a spiral stair case as per the approved plan of CMDA and the said cost of the spiral stair case was included in the total cost of construction.  In response to the said legal notice the opposite party has also replied that he has to refund the sum of Rs.2 lakhs and the excess amount held by them that ie. Rs.42,000/- is liable to be refunded to ICICI bank and not to him.  The complainant has conveniently with ulterior motive and to make unlawful gains, has suppressed the issue of his legal notice dated 19.11.2004 and the reply.  

11.    The original documents such as E.B. security / caution deposit, Municipality related bills, occupation certificate, property tax receipts etc.  Pertaining to the property concerned is entitled to be obtained and received by the association of Flat owners of the said complex and they i.e. the association has already received the said documents.  If is for the complainant to approach the association of which he is a member for any documents, assistance and not from this opposite party.   That a sum of Rs.42,000/- is to be refunded is correct, but it has to be refunded to ICICI bank and not to the complainant along with Rs.2 lakhs received by the complainant.

12.    That all other allegations which are not specifically traversed herein and which are against the interests of the opposite party are hereby denied as false.  Hence this complaint is liable to be dismissed.

13.      In order to prove the averments of the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A8 marked.  Proof affidavit of opposite party filed and Ex.B1 to Ex.B10 marked on the side of the opposite party.  

14.   At this juncture, the point for the consideration before this

        Forum is:  

 

 

1.  Whether there is any deficiency of service on the part of the 

     Opposite party as alleged in the complaint?

 

2. Whether the complainant is entitled to any relief as prayed for?

 

15.  Point No.1

            On perusal of the evidence of the complainant, it is learnt that the total cost of the construction as stated by the opposite party is of Rs.12,69,050/- inclusive of UDS of land and in addition to that the charge for TNEB connection of Rs.20,500/- and stamp duty and registration expense of Rs.75,500/- was paid by the complainant.  It is further learnt that subsequently the opposite party has modified in the existing set up for which the expenses raised as per Ex.A1 & Ex.A2 and the  Sketch map is marked as Ex.A3 and the same was disputed by the complainant.  Since the amount raised in the above said bill was found to be in huge excess  when compared with the standard market survey and therefore number of letter correspondence and telephone messages were given by the complainant to the opposite party neither a  proper reply nor made an attempt to excess to the issue and thereby the opposite party has indulged themselves in unfair trade practice.

16.    Further, it is pertinent to  note that the work for spiral stair case was commenced and due to their own reason, they stopped and failed to proceed further, and the said idea of constructing the spiral stair case was totally dropped.    Though the opposite party received Rs.42,000/- as excess payment and also the opposite party  have deliberately and purposefully refrained themselves in handing over all the original documents pertaining to the Flat A1  & A3, such as E.B security / caution deposit, Municipality related bills, the occupations certificate, property tax receipts, etc.  and thereby the opposite party have committed derelictions of duty and deficiency in service on their part.  Hence the complainant has suffered loss and injury and also mental agony.  The cash voucher of Rs.29,500/- dated 26.9.2003 for construction of spiral stair case is marked as Ex.A4 and the letters sent by the complainant to the opposite party is marked as Ex.A5 and the reply letter Ex.A6, the legal notice and the reply notice are marked as Ex.A7 & Ex.A8 respectively.  

16.    Such being so, on going through the evidence of the opposite party it is stated that outside the scope of the agreement entered with the complainant the excess amount is not paid pursuant to the agreement of the construction the said excess amount deductible towards TNEB three phase connection amounting to a total sum of Rs.20,500/- and the stamp duty and registration expenses of Rs.75,500/- and further a sum of Rs.1,54,237/- was deductible towards modifications made as per the requirement of the complainant, after the estimate was approved by the complainant, which is outside the scope of agreement of construction is Ex.B2.  The letter of the complainant requesting for additional works and letter for the complainant adjusting request for Rs.1,00,000/- for his personal use are marked as Ex.B3  to Ex.B5 respectively.  The bill for modification is marked as Ex.B6 and the     bill for complainant is marked as Ex.B7.   

17.    It is further learnt from the evidence of the opposite party that Ex.B9 was issued to the complainant along with the statement of account for the alleged two flats and enclosed the affidavit to be signed by the complainant and his wife by stating that the opposite party accepted for refund a sum of Rs.42,000/- being the balance due to them and assured to give discount of Rs.8250/- on account of not providing RCC stair case, with regard to provision of Electricity main board in the first floor, they have charged Rs.20,500/- and requested for return the affidavit signed by the complainant and his wife which are marked as Ex.B9 & Ex.B10.

18.    It is further stated by the complainant that  association of the flat owners has already received the documents  viz. E.B security /caution deposit, Municipality related bills, the occupation certificate, property tax payment receipts etc. and thereby the  complainant  hasto approach the association of which he is a member for any document assistance and not for from the opposite party. 

19.    From the foregoing among other facts and evidence adduced on both sides, it is crystal clear that the main allegation made by the complainant is that the opposite party has received an excess amount of Rs.42,000/- and not handing over the original documents pertaining to the flat of the complainant and not providing RCC spiral stair case as per the construction agreement.   In respect of other factors, the complainant has not produced acceptable evidence.  In such circumstances, the refund of excess payment of Rs.42,000/- and the non providing of RCC spiral stair case have been clearly admitted by the opposite party and in this regard Ex.B9 & Ex.B10 accepted and same had been disputed by the complainant.   Furthermore the non returning of the original documents pertaining to the flat project of the opposite party the explanation given by the opposite party cannot be acceptable and also not a valid one.  At the outset, being non furnishing the original document and non providing of the RCC spiral stair case  by the opposite party clearly amounts for deficiency of service and thereby the complainant had certainly suffered mental agony and hardship  and the same has to be compensated.  Thus the deficiency of service of the opposite party has been proved by means of relevant and cogent evidence.  Thus the point-1 is answered accordingly.

20. POINT No.2: -

        As per findings arrived in  point-1, the complainant is entitled to return all the original documents as prayed in the complaint and also entitled to refund a sum of Rs.42,000/- which was collected excess by the opposite party. Furthermore, it is seen that out of estimation cost for construction of spiral stair case of Rs.29500/- a sum of Rs.8,250/- was given as discount the remaining amount of Rs.21,250/- as agreed by the opposite party and for mental agony and hardship suffered by the complainant is also entitled for reasonable compensation and cost.  thus the point No.2 is also answered accordingly.    

In the result, the complaint is allowed in part.   Accordingly the opposite party is directed to return all the original documents which are mentioned in the compliant and to refund the excess amount of Rs.42000/- (Rupees Forty two thousand only)  as agreed and to pay a sum of Rs.21,250/- (Rupees Twenty one thousand and two hundred and fifty only) towards the cost of construction of  laying spiral stair case incurred by the complainant and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for causing mental agony and hardship due to deficiency of service on the part of the opposite party  and to pay a sum of Rs.5000/- (Rupees Five Thousand only) towards cost to the complainant.  Regarding  other reliefs, the complaint is dismissed.

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

         Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  23^rd   day  of  February 2017.  

 

MEMBER-I                       MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 29.3.2004  - Copy of Modification bill.

Ex.A2- 7.7.2004    - Copy of modification bill.

Ex.A3-         -       - Copy of Sketch Map given by the opposite party.

Ex.A4- 26.9.2003  - Copy of cash voucher Rs.29,500/- expenses incurred for

                              Construction of spiral stair case by complainant.

 

Ex.A5- 29.9.2004  - Copy of letter sent by complainant.

Ex.A6- 6.10.2004  - Copy of letter sent by opposite party.

Ex.A7- 19.11.2004- Copy of legal notice.

Ex.A8- 30.11.2004         - Copy of reply notice by opposite party.

Opposite party’s side document: -   .. Nil..

 

Ex.B1- 27.8.2003  - Copy of sale deed.

Ex.B2- 8.5.2003    - Copy of agreement of construction.

Ex.B3- 18.5.2003  - Copy of letter of the complainant for additional works.

Ex.B4- 18.10.2003         - Copy of letter of the complainant for additional works.

Ex.B5- 2.2.2004    - Copy of letter of the complainant for requesting for Rs.1 lac

Ex.B6- 29.3.2004  - Copy of bill for modifications.

Ex.B7- 29.9.2004  - Copy of bill for complainant.

Ex.B8- 19.11.2004         - Copy of legal notice issued by the complainant.

Ex.B9- 16.9.2004  - Copy of letter of opposite party to the complainant.

Ex.B10- 6.10.2004         - Copy of letter of opposite party to the complainant.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.