Tamil Nadu

South Chennai

CC/65/2017

S.V.Subramanian - Complainant(s)

Versus

The Managing Director, VGN Developer Pvt Ltd - Opp.Party(s)

P.Vijaykumar

26 Aug 2022

ORDER

Date of Complaint Filed : 11.01.2017

Date of Reservation      : 29.07.2022

Date of Order               : 26.08.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,   : MEMBER II

 

CONSUMER COMPLAINT No. 65/2017

FRIDAY, THE 26^th DAY OF AUGUST 2022

S.V. Subramanian,

S/o. Vajiravelu,

No.514, Arihant Majestic Tower,

J.N.Salai, Koyambedu,

Chennai – 600 007.                                                                                                                                                            ... Complainant         

 

..Vs..

The Managing Director,

VGN Developer Pvt Ltd.,

15, Wallace Garden 2^nd Street,

Nungambakkam,

Chennai – 600 006.                                                                                                                                                         ...  Opposite Party

 

******

Counsel for the Complainant      :M/s. P.Vijayakumar

Counsel for the Opposite Party   : M/s. K. Harishankar

 

        On perusal of records and after hearing the oral arguments of the Counsel for Complainant and the Counsel for Opposite Party, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to pay an amount of Rs.3,00,000/- with 18% to the Complainant for delay in completion of allotment of flat and direct the Opposite Party to pay a sum of Rs.2,00,000/- towards mental torture and agony suffered by the Complainant and to direct the Opposite Party to pay a sum of Rs.20,000/- towards cost of the complaint.

2.     The averments of Complaint in brief are as follows:-

The Complainant had approached the Opposite Party for purchase of Residential Flat in the “VGN Brixton” project situated at Irungattukottai, near Poonamallee. Whereas, the Complainant has made an Agreement with VGN Developer for construction of an Apartment in a Project named 'VGN BRIXTON' executed at Chennai on 16.09.2011, with a super built area measuring 1125 sq.ft or thereabout and agreed to construct the same, which is very well highlighted in the schedule 'C' of the  Construction Agreement. The Opposite Party had agreed and accepted the cost of construction at Rs. 28,17,852/-  inclusive of all the amenities as a total consideration towards the allotment of said apartment. The Complainant has performed all the conditions of the Agreement, particularly he has made full payment of total sale consideration within the time limit as mentioned in the above Construction Agreement. Whereas, the Opposite Party as a Developer, had undertaken that the construction will be completed by December 2012 with an additional grace period of six months. The Opposite Party has consciously failed to deliver the possession and handing over the key of such apartment. As per the Construction Agreement dated 16.09.2011, the allotment of portion to the Complainant should be given either in the month of December 2012 or as extended period which will be at the end of June 2013. However Opposite Party did not hand over the possession of Complainant's flat. On the failure, the Complainant has made a letter of requisition to the Opposite Party on 15.10.2014, and sought for compensation for the delay. The Opposite Party did not reply or respond, as a result, the applicant suffered monetarily as well as mentally. The Opposite Party sent a letter on 14.10.2013 to the Complainant promising the Complainant to hand over the flat by April 2014. Thereafter, the Opposite Party has stopped all the communications, even though the Complainant made several requests, they did not turn down to and in favour of the Complainant. Finally, the Complainant sent a Lawyer's notice on 25.04.2016 requesting possession with due compensation for the inordinate delay and the mental agony caused, apart from loss of Interest/accrual of rent. As per the Construction Agreement agreed to pay the compensation at the rate of 18% p.a. for the pending construction work as liquidated damages, since all the payments were made by the applicant in time. Whereas, inspite of several requests made by the Complainant by sending various letters, remainders all the efforts made finally ended in vain, few reply by Opposite Party were not satisfactory as per the Complainant's demand. The Complainant has no other option except to proceed with this Complaint before this Hon'ble Forum for correct remedy. Due to the delay and improper service and deficiency on part of Opposite Party, the Complainants are suffering mental torture and agony by sending several letters, visiting in person in various occasions in his elderly age and had suffered financial loss by the acts of the Opposite Party herein. Hence the complaint. 3.   Written Version filed by the Opposite Party in brief are as follows:-          The Opposite Party submitted that as per clause 76 of the Agreement For Development And Construction this Complainant has to invoke arbitration for resolving his disputes, if any. Hence, this complaint is not maintainable before this Hon'ble Forum and is liable to be dismissed in-limini on this ground alone. The Complainant had booked a residential flat for built up area measuring 1125 Sq.ft. bearing Block No.B20, Fourth Floor, Apartment No.IV-J of the proposed building complex called 'VGN BRIXTON' and has also entered into an Agreement on 16.09.2011. There had been several delays in making the payments at different stages and payment was not made as specified and agreed upon in the Agreement for Development and Construction. As per Clause 13 of the Construction Agreement the Allottee can claim any compensation subject to the condition that "The ALLOTTEE have made all payments on time and does not have any arrears of any amount and not in default of any terms and conditions of the Agreement." It is pertinent to state that the Complainant had defaulted in payment of the dues and wherein this Opposite Party as goodwill gesture waived the interest payable on the delay payment. Whereas the Complainant who had violated the agreed terms to pay the due without any delay has defaulted the payment and his claim for compensation is untenable. It is also to be noted that clause 13 is to be read along with clause 12 of the Construction Agreement. Thus it is brought to the notice of this Hon'ble Forum that nearly for two years i.e. 2011 to 2013 river sand was unavailable and extremely scarce. The Government and the media were continuously publishing notices and news regarding the high demand of sand during that period. Immediately, accompanied with this scarcity, the Lorries had also gone on strike during the same period. There was also acute power shortage and this had crippled all industrial activity including construction activities. The news related to unavailability of river sand for construction purpose and strike of workmen relating the same were continuously telecasted in media and published in most newspapers. It is also pertinent to state that this Opposite Party had also intimated to this Complainant about the reason for the delay.  For the convenience and welfare of the 800 families the Opposite Party has gifted a piece of land to TANGEDCO for establishing power sub-station and sufficient steps are being efficiently taken by the Opposite Party. The Complainants have hastily made complaints against the Opposite Party without even enquiring properly or noticing that all the necessary efforts are being put by the Opposite Party for the complete use of the 800 flats. Only after the power station is set-up by the concerned authorities' proper supply of electricity will be available for all the residents. The Opposite Party has provided for bore well facilities. All the 800 Allotees were satisfied with the service of the Opposite Party, including this Complainant. It was only after all these services were provided to the satisfaction of the Complainant, he had come forward and signed the letter dated 14.10.2014. There are no merits in the contention of the Complainants and the Complainant is liable to be dismissed as vexatious. Hence prayed to dismiss the complaint. 4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-16  were marked. The Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the Opposite Parties, documents Ex.B-1 to Ex.B-2, were marked.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

 

Point No.1:-

Upon careful perusal of records it is evident from Ex.A-16 that the Complainant had entered in to an Agreement for Development and Construction dated 11.09.2011  with the Opposite Party for construction of an Apartment in the project named “VGN BRIXTON” with super built up area measuring 1125 Sq.ft in Block No.B20, 4^th Floor in Apartment No.IV -j with triple bed room  morefully described in Schedule-C of the Construction Agreement. As per Ex.A-1, the Allotment letter issued by the Opposite Party, found in page No.2, the total cost of the Apartment inclusive of all the amenities was Rs.28,17,852.00 payable by the Complainant in stage wise to the Opposite Party. The Complainant had made the following payments

Sl.No	Cash/Cheque/DD No. Date, Name of Banker	Amount Paid / Payment receipt in Rs.
1.	SBI, 24.08.2011 Cash	73,000/-
2.	SBI, Cheque No.848279, dt.24.08.2011	2,00,000/-
3.	ICICI, 23.09.2011, Cheque No.009141	2,00,000/-
4.	ICICI, 23.09.2011, Cheque No.009140	1,81,930/-
5.	SBI, 22.09.2011, Cheque No.979359	9,79,259/-
6.	19.11.2011, HDFC, Cheque No.002406	1,08,930/-
7.	13.12.2011, HDFC, Cheque No.005745	2,73,000/-
8.	SBI, 06.06.2012, Cheque No.138380	5,54,802/-
9.	ICICI, 01.07.2013, DD No.047657	80,000/-
10.	HDFC 06.07.2013, DD.No.002417	1,10,000/-
11.	ICICI, DD. No.024579, dt.18.02.2013	1,50,185/-

 

The above payments made by the Complainant is not denied by the Opposite Party. However the Opposite Party had calculated that a sum of Rs.50,521/- towards the interest of the delayed payments is payable by the Complainant.

As per of Clause 12 the Construction Agreement,  the Opposite Party had agreed to complete the construction within December 2012 with an additional grace period of 6 months. On 10.01.2013, the Complainant, by his letter,Ex.A-3 had requested the Opposite Party to complete the pending works. However, even after the extended period of 6 months the Opposite Party had not completed the construction work. On 18.06.2013 the Opposite Party had issued a Demand Letter, Ex.A-5 for total amount due of Rs.1,89,819.47, which has been paid by the Complainant vide DD No.047657 dated 01.07.2013  drawn on ICICI Bank for a sum of Rs.80,000/- and DD.No.002417 dated 06.07.2013 for a sum of Rs.1,10,000/- drawn on HDFC Bank.

Whileso, the Opposite party had sent a letter on 14.10.2013, Ex.A-6 to the Complainant for the delay caused in handing over the possession of the flat and assuring to deliver the home by April 2014. As there was no further communications from the Opposite Party the Complainant had sent letters dated 19.03.2014 and 25.03.2015,  Exs.A-7, A-8 demanding compensation  for the delayed period and his intention to proceed legally. The Opposite party had issued letter dated 22.05.2015 informing the Complainant that the flat is ready for handing over and occupation and demanded a final amount of Rs.1,90,869/-, which amount is in dispute and for the non payment of that amount the flat has not been handed over by the Opposite Party to the Complainant. Subsequently the Complainant had sent many communications which has been received by the Opposite Party as found in Ex.A-9 to A-13, demanding compensation for the inordinate delay in handing over the project. The Opposite Party by its letter dated 26.04.2016 had demanded a sum of Rs.1,90,869/-, Ex.A-14 as final payment from the Complainant.

The Opposite Party in their Written Version had not averred that the Complainant is liable to pay any outstanding due to the Opposite Party. They contended that though there was delay in payment at different stage by the Complainant the Opposite Party had not chosen to charge interest on the Complainant as a goodwill gesture, when the fact remains the Opposite Party had not proceeded with construction activities as agreed. The Opposite Party had given various reasons for the delay in construction which is beyond their control such as unavailability of river sand, lorry strike, power shortage, strike of workmen which had crippled all industrial activity including the construction activities which is not substantiated by any documentary evidence. However in their Written Arguments and as per Ex.B-2 the Opposite Party had stated that the Complainant had to make the final payment of Rs.1,90,869/-, without mentioning the break ups towards which the amount is overdue.

The Opposite Party having agreed to hand over the possession of the Apartment by December 2011 with a grace period of 6 months i.e., in the month of June 2012, after a delay of nearly 3 years on 22.05.2015 had sent a letter informing the Complainant that his Flat is ready for handing over and occupation on payment of final amount of Rs.1,90,869/-without any break up details towards which the amount remains over due. It is found the Complainant had already paid the cost of Flat on various dates, which fact is not denied by the Opposite Party. The Opposite party having received cost of the Flat from the Complainant, and having caused inordinate delay in constriction of Flat and claiming a final payment of Rs.1,90,869/- without realizing their own obligation to pay liquidated damage as stipulated under the Agreement for Development and Construction dated 16.09.2011, is not legally sustainable and till now the Flat remains in the possession of the Opposite Party after having after received the agreed total cost of the Flat clearly amounts to deficiency in service. Therefore, this Commission is of the considered view that the Opposite Party had committed deficiency of service. Accordingly, Point No.1 is answered.

Point Nos.2 and 3:-

Considering the facts and circumstances of the case, and in view of the foregoing discussions, this Commission is of the considered view that the Opposite Party is directed to hand over the Flat in Block B20, Apartment No.IV.J in Fourth Floor of “ VGN Brixton”, Irungattukottai, near Poonamllee and are liable to pay a sum of Rs.2,00,000/- as compensation for the deficiency in service along with cost of Rs.3000/- to the Complainant. And hence the Complainant is not entitled for any other relief/s. accordingly, Point Nos. 2 and 3 are answered.

In the result the complaint is allowed in part. The Opposite Party is directed to hand over the flat in Block B20 Apartment No.IV.J in IVth floor of “VGN Brixton” Irrungattu Kottai near Poonamalle and is liable to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) as compensation for the deficiency in service along with cost of Rs.3,000/- (Rupees Three Thousand Only) to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of this order till the date of realisation.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 26^th of August 2022. 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	19.11.2011	Copy of Registration details for the apartment allotted to the Complainant & allotment letter
Ex.A2	13.12.2011	Copy of Demand letters by the Respondents
Ex.A3	10.01.2013	Copy of Complainant letter, requesting handing over the flat
Ex.A4	22.02.2013	Copy of Payment receipt
Ex.A5	18.06.2013	Copy of Demand letter for payment
Ex.A6	14.10.2013	Copy of Letter from VGN Developers
Ex.A7	19.03.2014	Copy of Letter by Complainant
Ex.A8	25.03.2015	Copy of Letter by Complainant
Ex.A9	22.05.2015	Copy of Payment demand letter by VGN Developers
Ex.A10	20.06.2015	Copy of Reply letter by the Complainant
Ex.A11	26.11.2015	Copy of Letter by Complainant
Ex.A12	07.12.2015	Copy of Letter by Complainant
Ex.A13	25.04.2016	Copy of Letter by Complainant
Ex.A14	26.04.2016	Copy of Payment Demand letter by VGN Developers
Ex.A15	06.10.2016	Copy of Lawyer’s notice
Ex.A16	-	Copy of Agreement for Development and Construction

List of documents filed on the side of the Opposite Party:-

Ex.B1	-	Copy of Agreement for Development and Construction
Ex.B2	-	Copy of Letter of communication about the Due amount to the Complainant

 

 

        

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT