Date of filing     :    14.10.2016

                                                                              Date of transfer :   16.06.2022

                                                                              Date of order     :   13.10.2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE, AT VELLORE DISTRICT

         PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L.        PRESIDENT

                            THIRU. R. ASGHAR KHAN, B.SC.,B.L.                       MEMBER- I

                            SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A.,       MEMBER -II  

    THURDAY THE 13th DAY OF OCTOBER 2022

    CONSUMER COMPLAINT NO: 95/2022

Counsel for complainant                                        :      M/s. Shymala T.Rajan 

Counsel for Opposite party                   :      Thiru.G.Peranban

                ORDER

 THIRU.R.ASGHAR KHAN, MEMBER- I

This complaint has been filed under Section 12 of Consumer Protection Act 1986.  The complainant has prayed this Hon’ble Commission to direct the opposite party to return the amount  of Rs.1,50,000/- towards the charges for club house and also to pay a sum of Rs.5,00,000/- as damages for mental agony.

1.  The case of the complaint is briefly as follows:

    The complainant purchased a Flat with of UDS 430.00 Sq. feet from the opposite party’s new proposed project name M/s.VGN Imperia Phase III comprised in survey No.43/1A, 43/2 and 44. The complainant was satisfied with the project,  since it was an aspiring project with all amenities including car parking, club house membership and other facilities. The complainant states that a construction agreement was entered into between the complainant and the opposite party under a registered construction agreement dated.20.10.2014 with respect to the flat No.B2-S3, VGN Imperia Phase III, VGN Mahalakshmi Nagar, Thiruverkadu, Chennai-600 077 registered as Doc.No.2428/2014 at Joint Sub Registrar II, Saidapet along with sale deed of purchase. 

    The total value of the flats was Rs.57,97,003/- and construction of flat cost inclusive of maintenance charges, car parking incidental charges as per the terms and conditions of construction agreement and sale deed. The complainant paid to the opposite party first a sum of Rs.30,000/- on 24.09.2014 by way of two cheques No.019313 and 019314 drawn on State Bank of India, Thiruvanmiyur Branch, Chennai for registration and booking payments. Further to the payment of registration amount, the remaining amount totalling to Rs.57, 97,003/- were fully paid through cheques from ICICI Bank on various dates. The details are as below.

The complainant states that in the total value paid of Rs.57,97,003/- for purchase of flat, the club house membership cost is inclusive of Rs.1,50,000/-. The complainant states that though the flat was ready to occupy one possession was given and other facilities and recreational amenities made but club house was not developed by the opposite party as per contract and as per the promise made in the flat plan made by opposite party. The complainant states that for this purpose the opposite party had received a sum of Rs.1,50,000/- towards the club house. The complainant sent representation via e-mail dated.29.02.2016 and a letter dated.09.09.2016 but there was no reply or action of handing over of the club house. 

The complainant states that the opposite party had acted cleverly by adding a clause to the agreement, that they are not responsible for the delay in the deliverance of the club house. The complainant states that opposite party acted cunningly without mentioning that the club house is not common amenity.    Even after 22 months, the club house amenities were not delivered as promised by opposite party flat is an act of cheating. The complainant states that all her dreams have been shattered; this has put the complainant to stress, mental agony, physical hardship and loss. Hence this complaint filed.

2. The Written version of the Opposite party briefly as follows:

    The opposite party filed the written version,  written objection stating that the above case is not maintainable either in law or on facts. The complainant have suppressed material facts, denies all the allegations and averments contained in the complaint filed in support of the typed set of documents except those that are that are specifically admitted here under and put the complainant for strict proof of the same.

    Further, the opposite party averred in the written version that the complainant has executed a registered construction agreement dated.20.10.2014, in page 8 clause 33 in view of legal bar.

Clause-33:

    In case of any dispute arising between Builder and ALLOTTEE/s or any issue under this agreement, the parties have agreed to refer the same to an arbitrator appointed by the builder at its discretion and whose decision shall be final and finishing upon  the parties. The venue of such arbitration shall be Chennai. The Arbitration shall be conducted in terms of the provisions of the arbitration and Conciliation Act, 1996.

    The Opposite party admitted the facts that Mrs.K.Jayalakshmi purchased a Flat No.B2-S3, VGN Emperia Phase-3 their project of 430.00 Sq.ft UDS in the land comprised in survey No.S43/1A, 43/2, 44 under a registered construction agreement dated.20.10.2014, with respect registered as Doc No.2428/2014 Joint Sub Registrar Office II, Saidapet along with sale deed. The opposite party as per the terms and conditions, towards construction agreement cost inclusive of maintenance charges, club house facility, to park one car and other incidental expenses, mutually agreed and registered construction agreement dated.20.10.2014 in Doc.No.2428/2014 and a sum of Rs.41,60,010/- mutually arrived and for the sale consideration of UDS of said 430.00 Sq. Ft in mutually arrived of Rs.12,47,000/-. The opposite party further says that the both parties are liable towards of the execution of the bilateral agreement as per agreement under clause 3 of page 3, it is clearly agreed by the complainant to adhere the schedule of payment in percentage.

    The opposite party admitted the facts in written version to have floated the brochure flat plan under the name of M/s. VGN Imperia Phase III and the complainant purchased the mentioned flat under registered sale deed, without any payment delay for value of Rs.57,97,003/-total consideration inclusive of club house amenities for Rs.1,50,000/- . The opposite party further averred in the written version as per construction agreement page (6) in clause 21 agreed condition as follows.

    The builder will establish a social and recreation club for the customers / allottee/s in their projects to be developed in nearby locality, the allottee will get club membership at the cost of Rs.1,50,000/-. The other usage cost and maintenance cost will be levied by the club from time to time.  Further the said club is not an exclusive but a common amenity for this project. The allottee further agrees that there may be a possibility of delay in deliverance of club house due to change in policy circumstances, procedures adopted by the sanctioning authorities and such delay may not within the control of the builder.

    As per the clause 21 the complainant cannot raise any objection with regard to the defect or deficiency of service on any account of club house. The opposite party further state that the deliverance of club house is not by the opposite party, only the sanctioning authorities needed latest sanction requirement, besides ready and willing to deliver the club house subject to the sanction authority’s direction. The opposite party denies the allegation of Non-reply for the 29.02.2016 and 09.09.2016 and assure the deliverance of club house with the sanction authority. The opposite party submits that plan for club house has been submitted for approval to construct the club house before the CMDA same was acknowledged by the CMDA vide No.SBC No. BN/2016/000192/VCAD, therefore there is no breach on the part of the opposite party and there is no deficiency in service on the part of the opposite party with regards to the projects amenities including club house. The opposite party stated to have complied all the allegations are false, frivolous and fabricated with ulterior motive by complainant. Hence this complaint needs to be dismissed.

3.    Proof affidavit of complainant was filed. Ex.A1 to Ex.A5 were marked. Written argument of complainant filed. Proof affidavit of opposite party filed. Ex.B1 to Ex.B3 were marked.  Written argument of opposite party filed. No oral arguments heard.

4. THE POINTS THAT ARISES FOR CONSIDERATION ARE:     

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

            2.    Whether the complainant is entitled for relief as claimed in the 

      complaint?

          3.   To what relief, the complainant is entitled to?

5. Point Nos. 1 & 2:        

    The complainant and the opposite parties herein entered into an agreement dated 20.10.2014 for the construction of Flat for the complainant. The said construction agreement was marked as Ex.A2. The total sale consideration for the said Flat was Rs.41,60,000/-.  The complainant also paid entire sale consideration to the opposite parties.  At the time of booking the Flat, opposite parties assured certain facilities, amenities for the welfare of the flat owners such as Club house facilities Park etc., The opposite parties handed over flats to the complainant in time.  There is no dispute in this regard, the only grievance raised by the complainant that though the opposite parties have collected a sum of Rs.1,50,000/- as membership charges for the said Club house, the opposite parties did not construct the Club house  as agreed in Clause-20 of the Construction Agreement.   Therefore, the opposite parties liable to refund the aforesaid amount to the complainant.  

6.    Per contra, the opposite parties in their written version referring to Clause 33 of the Construction Agreement, if there is any dispute arises out of the aforesaid agreement between the parties, the dispute should be first referred to Arbitration.  Therefore, this complaint is not maintainable.  Further, though the opposite parties agreed that they have collected Rs.1,50,000/- towards the development of club membership costs.   But the delay caused for the development aforesaid club house beyond their control.  Therefore, there is no deficiency in service as alleged by the complainant.  

We referred to the following Supreme Court Order for maintainability of the complainant 

THE SUPREME COURT OF INDIA

In Appeal (Civil) 2500 of 1994, dated 12.05.2000

Sky Pak Couriers Limited

(Vs)

Tata Chemical Limited

It was held that, existence of an arbitration clause will not be a bar to the entertainment of the complaint by the addressed agency.  In addition to this the Sec(3) of the Consumer Protection Act 1986 clearly states that the  Act shall be in addition to and not in derogation the provisions of any other laws.  In so far as the grievances of the complainant though the opposite parties have collected Rs.1,50,000/-.   Admittedly they have not constructed club house inline with clause 20 of the construction agreement.  Therefore in our consider opinion opposite parties  have no right to retain Rs.1,50,000/- and they bound to return forthwith.  This acts amounts to deficiency of service and unfair trade practice.  Hence, these Point Nos. 1 and 2 are decided in favour of the complainant.    

 6. Point No.3:     As we have decided in Point Nos.1 and 2 that there is a deficiency in service on the part of the opposite party. The opposite party is hereby directed to refund of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) the amount paid by the complainant for the Club House Membership from 20.10.2014 to till the date of this order and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant. These Point No.3 is also answered accordingly.

7.    In the result, this complaint is allowed.  The opposite party is hereby directed to pay a sum of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) the amount paid by the complainant for the Club House Membership from 20.10.2014 to till the date of this order and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant within one month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till the date of realization.   

Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 13th October 2022.

         Sd/-                                   Sd/-                     Sd/-

  MEMBER – I                                  MEMBER – II                                  PRESIDENT

LIST OF COMPLAINANT SIDE DOCUMENTS:                

Ex.A1 - 25.10.2013             -     CMDA Completion Certificate

Ex.A2 - 20.10.2014         -     Construction Agreement and Sale Deed

Ex.A3 - 20.10.2014          -     Flat Plan

Ex.A4 - 24.09.2014      -     Payments Receipts  

             04.10.2014,

             08.10.2014

Ex.A5 - 29.02.2016         -     Representation of complainant to opposite party

LIST OF OPPOSITE PATIES SIDE DOCUMENTS:                                    

Ex.B1 - 20.10.2014         -     Construction Agreement 

Ex.B2 - 20.10.2014          -     Sale Deed Doc.No.2428/2014

Ex.B3 - 04.03.2016         -     CMDA vide No.SBC No. BN/2016/000192/VCAD

      Sd/-                       Sd/-                     Sd/-

MEMBER – I                                  MEMBER – II                                  PRESIDENT