Tamil Nadu

StateCommission

CC/9/2011

J. JOHN AROCKIA RAJ - Complainant(s)

Versus

THE MANAGING DIRECTOR - Opp.Party(s)

02 Jul 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

                   BEFORE         THIRU.A.K.ANNAMALAI    PRESIDING JUDICIAL MEMBER 

                                                TMT. P. BAKIYAVATHI                                              MEMBER

 

C.C.NO. 9/2011

DATED THIS THE 2^nd  DAY OF JULY 2015

                                                                                                                       Date of Complaint      : 24.1.2011

                                                                                                                       Date of Order            :  2.7.2015

 

1. Mr. J.John Arockia Raj

S/o Mr. S.James Zavier

 

2. Mrs. Binsy John

W/o Mr. John Arockia Raj

Represented by their power Agent

Mr.S.James Xavier                                                                                                     ..complainants

 

                                                                           Vs

 

1. The Managing Director/Executive Director,

M/s. Sri Renga Property Developers (P) Ltd

No.68, Bharathi Park,

7^th Cross, Saibaba colony

Coimbatore 641 011   

 

2. The Managing Director  

M/s Mint Homes(P) Ltd,

M-203, The Retreat by Mint Homes

Senthil Nagar, Sowripalayam Road,

Coimbatore 641 028                                                                                   ..opposite parties 1 & 2

 

For the complainants                    : Complainant in person

Counsel for the 1^st opposite party   : M/s M.Vijayakumar

Counsel for the 2^nd opposite party   :M/s Aparna Devi     

 

        This complaint coming before us for hearing finally on 8.6.2015 upon hearing the arguments on both side, perusing the documents, this commission made the following order.    

                                   

                                    ORDER

THIRU.A.K.ANNAMALAI,  PRESIDING JUDICIAL MEMBER

1.       The complainant filed a complaint u/s 17 of Consumer Protection Act 1986.

2.       The complainant praying for direction to return the entire amount of Rs. 70,00,000/- which was paid to the 1^st opposite party for constructing a villa and to pay Rs.3,24,304/- paid a service tax with 12% interest, and Rs.10,00,000/- as compensation towards deficiency in service, loss of rental income alleging deficiency in service of opposite party in not handing over the villa even after full payment till date of complaint.

3.    The Gist of the complainant is as follows:-

     The complainant entered into an agreement of construction with the 1^st opposite party on 22.6.2008 and for a plot measuring 1926 sq.ft bearing villa No.59 with specific boundaries after paying advance on 19.4.2008 Rs.2,00,000/- and subsequently a sale deed was executed on 23.7.2008 for the plot measuring 1926 sq.ft bearing No.59, at Renga’s Green Lands, the 1^st opposite party agreed to deliver the possession on or before 31.8.2008 and in case of delay to pay compensation of Rs.1 per sq.ft for the total construction area of 2600 sq.ft, the complainant paid entire value of villa for Rs.70,00,000/- plus the service tax of Rs.3,24,304/- totaling a sum of Rs.73,24,304/- on various dates and as per the agreement, the possession was not given on 31.12.2008 and requesting for the same, the letter was sent on 10.2.2009 claiming interest with 24% from the month of January 2009 and subsequently on 17.8.2009, the 1^st opposite party sent a letter for the entire project was entrusted with the 2^nd opposite party without the knowledge of the complainant and they were informed that the project will be completed in all respect by June 2010 and on 25.9.2009. The 2^nd opposite party sending a letter confirming the same  and also obtained undertaking for completion of building and the 1^st opposite party shifted response to the 2^nd opposite party who had sent undertaking form which was signed under compulsion and inspite of the same the possession was not given and as per the letter dated 14.12.2010  written by the 2^nd opposite party to the 1^st opposite party, both the opposite parties are colluding with each other in whisking away the huge funds invested in the project by shifting their responsibilities on each other. Hence the complainant filed the complaint claiming the reliefs as stated above.

4.          Both the opposite parties denied the allegations of the complainant in their written version separately filed. 

       The 1^st opposite party admitting the agreement and receipt of the amount from the complainant and also execution of sale deed for plot contended due to various problems and financial constrains, they could not complete the work and entered into the agreement with the 2^nd opposite party who had taking care of the project and 80% of the construction work was completed only the complainant refused to sign the papers for E.B connection and water sewage and the remaining work has to be completed by the 2^nd opposite party. Necessary consideration was given to the 2^nd opposite party for the construction and they have assured to complete the project on 31.10.2010 and executed the sale deed for 29 villas, only due to the delay of the 2^nd opposite party, the villa was not delivered to the complainant and delay compensation of Rupees one per sq.ft to be paid entire amount , they had not paid the same as per the terms and conditions and thereby the complaint to be dismissed.

5.             The 2^nd opposite party contended that they have entered into agreement to the 1^st opposite party and the 1^st opposite party failed to provide necessary funds to complete the construction and they have not agreed to spend the money to the construction and also not receiving money from the 1^st opposite party and there is no agreement between the complainant and the 2^nd opposite party directly wanted to gain some money from the 2^nd opposite party and the complaint is vexatiously filed against the 2^nd opposite party praying for dismissal of the complaint.

6.                Both sides have filed their proof affidavits and on the side of complainant Ex.A.1 to A.24 were filed and on the side of opposite parties Ex.B.1 to B.8 were marked.

7            Points for consideration are as follows:-

1.    Whether there is any deficiency in service on the part of opposite parties 1 and 2 regarding handing over of the villa No.59 even after receipt of full payment?

2.   Whether the 2^nd opposite party is not a necessary party and no liability could be fastened with them?

3.     Whether the complainant is entitled for refund of Rs. 73,24,304/- in view of the villa in 59  not handed over by the opposite parties?

4.    Whether the complainant is entitled for Rs.10 lakhs as compensation for mental agony and deficiency of service and other causes?

5.      To what relief the complainant is entitled to?

8. Point No.2:

          In the complaint enquiry, it is the admitted case of both sides that the complainant entered into an agreement with the 1^st opposite party on 22.6.2008 for the construction of villa 59, Renga Greenlands and for which the sale deed for the land of 1926 sq.ft was also executed by the 1^st opposite party on which the villa  No.59 to the extent of 2600 sq.ft to be constructed which was not completed till date of filing the complaint and the 2^nd opposite party admittedly entered into the agreement with the 1^st opposite party and the project was entrusted with the 2^nd opposite party for completion and on certain terms and conditions of the agreement, the 2^nd opposite party sent a communication to the complainant under Ex.A.8 mentioning about the evaluation of the process regarding construction and under Ex.A.9 requesting for signing the declaration undertaking for the purpose of construction. In those circumstances, the 2^nd opposite party cannot dis-own the liability on the ground that the 1^st opposite party, failed to pay the contractual amount for the purpose of construction and there was no contract and agreement with the complainant. Thereby the 2^nd opposite party is also liable to settle the claims to the complainants if at all along with 1^st opposite party and this point is answered accordingly.

9. Point No 1 and 3

                  In this complaint enquiry, the complainant alleged that he had entered into an agreement with the 1^st opposite party for the project of construction of villa 59 on the purchase land for which he had paid initially Rs.2 lakhs as advance and subsequently the entire cost of Rs. 70,00,000/- plus the service tax of Rs. 3,24,304/- and as per the construction agreement, the completed villa has to be handed over as on 31.12.2008 and in case of delay compensation at the rate of Re.1/- per sq.ft and the 1^st opposite party instead of completing the construction as per agreement,  delayed the work and also entrusted to do the work with the 2^nd opposite party and the 2^nd opposite party undertakes the construction of villa under Ex.A.8 and Ex.A.9 and also as per the letter dated 25.9.2009 Ex.A.7, they have informed that the possession would be given after completion on 30.6.2010 and finally as on 30.10.2010 inspite of the same, the work was not completed and the possession was not given and the complainant apprehended that it may not see the light of the day in this regard and thereby filed this complaint during the year 2011. All these allegations and averments of the complainant were not disproved by the opposite parties 1 and 2, eventhough they denied the allegations regarding the mode of construction and blaming each other regarding the internal struggle between them in settling the payment and other transactions, this is the evident that they had not handed over the possession of the villa as per the agreement between the complainant and 1^st opposite party and subsequently between the opposite parties 1 and 2 as on 30.10.2010 eventhough it is alleged that the construction was over 80% and the 1^st opposite party contended that the 2^nd opposite party executed 29 such villas for other persons. In those circumstances we are of the view, the opposite parties are in deficiency of service in not abiding the terms and conditions of the agreement or handing over the villa even after the complainant has paid Rs.73,24,304/- when he had lost hope in getting the possession of the villa after issuing a legal notice under Ex.A.10  filed this complaint which he had proved by abundant materials and thereby we hold that both the opposite parties are held liable for the refund of the money to the complainant which was paid for the construction of villa No.59 at  Renga’s Greenlands. Though the land was conveyed for the purpose of construction, in case of refund, the complainant has to re-convey the same to the 1^st opposite party and these points are answered accordingly.

10. Point No.4

          In view of the findings above points 1 to 3, in favour of the complainant and since the deficiency against the opposite parties are proved and till date of complaint or as on date today, the opposite parties have not come forward to handover the possession neither to pay the delay compensation at the rate of Re.1/- per sq.ft  for the construction of 2600 sq.ft even from 31.12.2008 or as per the subsequently agreed date on 30.6.2010 by the 2^nd opposite party and since we have decided to order for refund of the money given for purchase of villa, we are inclined to grant Rs.1,00,000/- as compensation for mental agony and other ordeals caused to the complainant in this regard and this point is answered accordingly.

11. Point No.5

                In view of the foregoing findings in point No 1 to 4, the complaint to be allowed and the opposite parties 1 and 2 are to be directed to refund the money of Rs.73,24,304/- with 12 % interest from the date of complaint till realization towards the purchase money paid by the complainant to the 1^st opposite party for the purchase of villa No.59, Rengas Greenlands at Coimbatore and on condition that the complainant shall re-convey the plot by way of sale executed in favour of the complainant by 1^st opposite party under Ex.A.3. For which the opposite parties may retain a sum of Rs.10 lakhs towards the cost of the land from the amount of Rs.73,24,304/- to be paid to the complainant and Rs.10 lakhs to be returned to the complainant on re-convey the plot to the 1^st opposite party and also the 1^st and 2^nd opposite parties shall pay a sum of Rs. 1,00,000/- as compensation for mental agony, deficiency in service and other ordeals caused by the opposite parties and Rs.5000/- as cost to the complainant and this point is answered accordingly

       In the result, the complaint is allowed and the opposite parties 1 and 2 are directed to refund the money of Rs.73,24,304/- with 12 % interest P.A from the date of complaint till realization towards the purchase money paid by the complainant to the 1^st opposite party for the purchase of villa No.59, Rengas Greenlands at Coimbatore and on condition that the complainant shall re-convey the plot by way of sale executed in favour of the complainant by 1^st opposite party under Ex.A.3. For which the opposite parties may retain a sum of Rs.10 lakhs towards the cost of the land from the amount of Rs.73,24,304/- to be paid to the complainant and Rs.10 lakhs to be returned to the complainant on re-convey of the plot to the 1^st opposite party and also the 1^st and 2^nd opposite parties shall pay a sum of Rs. 1,00,000/- as compensation for mental agony, deficiency in service and other ordeal caused by the opposite parties and Rs.5000/- as cost to the complainant.

      The directions shall be complied within six weeks from the date of copy of this order.

 

 

P.BAKIYAVATHI                                                                A.K.ANNAMALAI                            

   MEMBER                                                           PRESIDING JUDICIAL MEMBER 

 

                                      ANNEXURE

LIST OF DOCUMENTS FILED BY THE COMPLAINANT :

Ex.A1             22.4.2008      copy of receipt given by 1^st opposite party

Ex.A.2           22.6.2008      copy of agreement  of construction

Ex.A.3           23.7.2008      copy of  Registered sale

Ex.A.4                                copy of Account Statement given by 1^st opposite party

Ex.A.5           10.2.2009      copy of letter of complainant

Ex.A.6           17.8.2009      copy of letter to complainant

Ex.A.7           25.9.2009      copy of letter to complainant from 1^st opposite party

Ex.A.8           25.9.2009      copy of letter to complainant from 2^nd opposite party

Ex.A.9           16.11.2009    copy of letter to complainant from 2^nd op

Ex.A.10         1.12.2010      copy of legal notice to 1^st and 2^nd op

Ex.A.11         9.12.2010      copy of reply sent by the 1^st op

Ex.A.12         9.12.2010      copy of letter to 2^nd op

Ex.A.13         10.12.2010    copy of letter of 1^st opposite party

Ex.A.14         13.12.2010    copy of reply letter

Ex.A.15         14.12.2010    copy of letter of 2^nd op to 1^st opposite party

Ex.A.16         16.12.2010    copy of letter sent by counsel for complainant

Ex.A.17         22.12.2010    copy of reply sent by the postal authority

Ex.A.18         23.12.2010    copy of reply sent by the postal authority

Ex.A.19         9.6.2008        copy of Regd.General Power of Attorney Deed    

Ex.A.20         10.3.2010      copy of declaration-cum-undertaking obtained from the

                                          complainant

Ex.A.21         26.3.2010      copy of letter of 1^st opp.party

Ex.A.22         17.4.2010      copy of letter of the 1^st opposite party

Ex.A.23         8.6.2010        copy of tax payers counterfoil

Ex.A.24                            copy of letter sent by 1^st opposite party

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES : 

Ex.B.1                copy of Ledger Account

Ex.B.2          24.6.2009     copy of memo of understanding

Ex.B.3          21.7.2009     copy of construction Management and Marketing                                                                                                        Services Agreement

Ex.B.4          21.7.2009     copy of Investment Agreement

Ex.B.5          30.7.2009     copy of Guarantee Agreement

Ex.B.6          11.8.2009     copy of deposit of Title Deeds

Ex.B.7          10.3.2010     copy of declaration affidavit

Ex.B.8          25.7.2009     copy of letter from the 2^nd opposite party

 

 

P.BAKIYAVATHI                                                      A.K.ANNAMALAI                            

   MEMBER                                                PRESIDING JUDICIAL MEMBER