Tamil Nadu

North Chennai

72/2014

R.Kothandaraman,S/o.T.P.Rathinam, - Complainant(s)

Versus

The Managing Director, - Opp.Party(s)

M/s.M.Venkatakrishna

29 Dec 2021

ORDER

 

 

                                                                     Complaint presented on : 03.04.2014

                                                                       Date of disposal            : 29.12.2021

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. J. JUSTIN DAVID, M.A., M.L.        : PRESIDENT

THIRU. S. BALASUBRAMANIAN, M.A., M.L.          : MEMBER

 

C.C. No.72/2014

 

DATED THIS WEDNESDAY THE 29^th  DAY OF DECEMBER 2021

                                

Mr.R.Kothandaraman,

S/o.Mr.T.P.Rathinam,

Flat No:B3, No.18,

Kesavan Enclave, Anna Avenue,

K.B.Nagar, 1^st Cross Street,

Adyar, Chennai – 600 020.

 

                                                                                               …..Complainant

 ..Vs..

The Managing Director,

DLF Southern Homes Private Limited,

Zonal Office at Old No.828, New No.268,

Ponnamallee High Road,

Kilpauk, Chennai – 600 010.

 

.....Opposite Party

Counsel for Complainant                   : M/s.M.Venkatakrishnan and another

 

Counsel for   opposite party                 : M/s. Aiyar & Dolia

 

 

 

 

ORDER

 

THIRU. J. JUSTIN DAVID, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.84,195/- towards compensation and to pay  a sum of Rs,1,44,000/- towards the rent paid by the complainant due to the delay in handing over the possession of the flat and to pay a sum of Rs,5,00,000/- towards the defects in quality of construction and to pay sum of Rs.5,00,000/- towards the deficiency in service with cost of this proceedings.

1.THE COMPLAINT IN BRIEF:

          The complainant is a Non Resident Indian employed at Oman. The opposite party is a reputed real estate promoter, promoting a township under the name and stule ”Garden City”, DLF-OMR Thalambur Village, Chennai/ The opposite party claimed itself as a reputed builder with pan-India operations and assured several world class amenities to the flat purchasers in the said project. Believing the assurances and representations made by the opposite party’s representatives, the complainant expressed his willingness to purchase an apartment in the above said project and paid a sum of Rs.8,78,625/- towards advance for a flat bearing No.1 floor No.2 of tower No.15 on 31.03.2008 and 30.06.2008.  The representatives of the opposite party informed that the construction of Tower No.15 may take considerable time and advised to take Flat No.3 in Floor No.12 in Tower No.42 instead, construction of which was already nearing completion, Believing the representation, the complainant agreed to shift the booking from the original flat in Tower No.15 to Tower No.42. The opposite party had issued the allotment letter dated 03.06.2009. The opposite party have informed by letter dated 21.09.2009 and served on 30.09.2009 that SBI has yet to give clearance to the project and last date for making initial payment of Rs.9,28,143.75/- for availing Timely Payment Rebate is on 10.10.2009. Immediately the complainant personally approached the opposite party and enquired about delay on getting the clearance from the SBI and alternate remedy available to him. The representatives of the opposite party advised the complainant to approach the Canara Bank and apply for housing loan instead of SBI for Housing Loan and get a certificate that the loan application is under process from that bank as a solution to the problem. The apartment Buyer’s Agreement came to be executed on 09.10.2009 only on the assurance given by the Canara Bank. The complainant have made payments as per the time schedule mentioned in the Apartment Buyer’s Agreement dated 09.09.2009, the possession was delivered only during  the month of July 2012. As per the clause of the agreement, the opposite party ought to have delivered possession by October, 2011. Due to the delay on the part of the opposite party, the complainant was forced to reside in a rented premises on a monthly rent of Rs.16,000/-  and thereby suffered a loss of Rs.1,44,000/-. The complainant is entitled to get compensation @ Rs.5/- per Quare Feet of the said apartment per month for the period of delay. At the time of final payment, the opposite party had demanded a sum of Rs.3,56,494.43/- towards the additional construction cost @ Rs.241/- per Sq.Ft and cost for additional 61 Sq.Ft towards the increase in super built up area. The opposite party has not given any proper reply or explanation to the request for furnishing the details for increase in construction cost and area. The claim of Rs.3,56,494.43/- by the opposite party towards additional construction and other charge is without any basis and the complainant was forced to make payment with great hardship. The collection of additional cost towards construction cost and increase in super built area and nonpayment of compensation for delay in handing over the possession by the opposite party in ex facie illegal. The construction by the opposite party was not up to the assurances made and the defects in the construction.

1.The main door was not in teak wood as mentioned by the opposite party

2.Door locks and wood used for making doors are of very poor a quality which requires repairs too often.

3.The accessories used in the house are made up of cheap quality.

4. As mentioned during the booking time, the mall was not ready as promised by the opposite party

5.Corporation water supply was not provided to my house as promised by the opposite party.

6.Inveiw of the delay in providing the various amenities such as Mall, Hospital, GYM, Club House, etc, the property is not getting fair return for the investment made. And the opposite party is liable to compensate the complainant for deficiency in service.

          The complainant issued a legal notice through his counsel on 31.01.2014 calling upon the opposite party to pay a sum of Rs.12,28,195/- within fifteen days from the date of service of notice. Though the opposite party had received the same on 04.02.2014, neither sent any reply disputing the same nor paid the compensation claimed therein. Hence this complaint.

2.WRITTEN VERSION  FILED BY THE OPPOSITE PARTY IN BRIEF:

          The complaint filed by the complainant against the opposite party is not maintainable either in law or on facts and is liable to be dismissed. The issues raised in the complaint are matters beyond the jurisdiction of this Hon’ble Forum. The issues relate to a contractual dispute arising out of agreed terms and conditions as mentioned in the application for allotment. The apartment Buyers Agreement entered between the parties contains an arbitration clause providing for resolution of any disputes between the parties through process of arbitration. This Hon’ble Forum cannot entertain the present complaint and the parties must be referred to arbitration proceedings by dismissing the present complaint. There is no deficiency in service whatsoever on the part of the opposite party and the complaint deserves to be dismissed on this sole ground alone. The complainants knowing well about the reputation of the opposite party had approached them and evinced interest in purchase of an apartment in the project of the opposite party viz Garden City DLF OMR, at Thazamabur. On getting satisfied with the title and other documentation works,  the complainant agreed to purchase an apartment at Tower No.15, Floor No.2, Flat No.1 along with exclusive car park from the opposite party on the terms and conditions of the Agreements. The payment details in para 3 of the complaint are not disputed. The complainant well satisfied with the terms and conditions shifted his apartment booking to tower 42 on his own free will and desire and not on the representation made by the opposite party. The opposite party by its Letter dated 03.06.2008 had issued allotment letter to the complainant which is only 33 days from the date of Application i.e on 31.03.2008. In fact the letter dated 03.06.2009 was a confirmation of Allotment and was sent with enclosing two copies of Apartment Buyers’s Agreement to be signed and sent back by the opposite party before 30 days from the date of dispatch of the  Apartment Buyers’s Agreement. The opposite party has not advised the complainant to  approach the Canara Bank. Infact the opposite party in order to help the customer have arranged for few banker’s contact numbers and have suggested that the complainant can try with those suggested bankers to avail Housing Loan Facility. The complainant by his email dated 08.10.2009 has admitted that the SBI bank has delayed the process and it was opposite party who has suggested the complainant to approach with other bankers due to undue delay of the bankers. As per the terms and conditions of the Apartment Buyers’s Agreement  09.10.2009, it is the responsibility of the complainant to return the signed agreement within 30 days from the date of dispatch of such agreement and to make the payment of installments within the agreed time schedule. The said delays and defaults on the part of the complainant are nothing but breach of the terms of the agreement which disqualified the complainant to make any claim for compensation in event of delay. The complainant had delayed the payments and committed 73 days delay in payment of installments and thus committed breach of terms of the said agreement. The said delay and default entitles the opposite party to cancel the agreement and forfeit the earnest money. However the opposite party has permitted the complainant to continue with the agreement and the complainant has paid the installment of Rs.9,28,144 along with interest on delayed installment on 22.12.2009. As per clause 14 of the Apartment Buyers’s Agreement dated 09.10.2009, it is specifically agreed that subject to the complainant, not being in default under any terms of this agreement the opposite party agreed pay compensation @ Rs.5/- per sq. feet of the Super Area of the said apartment per month for the period of such delay. The complainant who has committed defaults in payment of installments is not eligible to delay compensation as he has committed default and delay which is a clear breach of the terms of payment as per the agreement. In fact the opposite party has given a credit of Rs.74,722.50/- and Rs.3,74,200/- by way of early payment rebate and timely payment rebates for the payments made prior to the date of installments and timely payments on installments as gesture of good will though not an obligation. As per the agreement dated 09.10.2009, Clause 11. A clearly states that the complainant shall have possession of the apartment within 27 months from the date of execution of the agreement which end on 8^th Jan 2012. The opposite party has given all the details regarding the increase of the construction area to the complainant vide its letter dated 12.04.2012 and after having satisfied with the same, the complainant has made the payments and now the complainant is stopped from questioning the same. There was delay on the part of complainant and not on the part of the opposite party as the final payment of the total consideration was only received on 10.05.2010. The complainant is not entitled to compensation for the delay as the complainant has committed default in payment of installment. The complainant having fully satisfied with the construction and the fulfillment of the obligation of the opposite party has accepted possession on 06.07.2012. The complainant stating his convenient and auspicious time took possession of the apartment along with Car Park on 06.07.2014. The complainant unconditionally had registered the apartment in his name on 09.11.2012. Hence this complaint may be dismissed.

3. POINTS FOR CONSIDERATION:

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

     2.Whether the complainant is entitled for compensation and other reliefs as      

         claimed in the complainant?

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

4. POINT NO: 1 & 2

         The complainant  in the complaint and in the proof affidavit alleged that he entered into an agreement to purchased a Flat No.3  in Floor No.12 Tower No.42 and paid an advance amount of Rs.8,78 625/- that the complainant approached the Canara Bank for housing loan for payment of remaining cost of the flat. The complainant further alleged as per the agreement dated 09.09.2009 the possession of the flat ought to have delivered by October 2011, but the opposite party handed over possession during the month of July 2012 and there is delay in  handing over possession of the flat to the complainant and therefore the complainant suffered loss of Rs.1,44,000/-. The complainant further alleged the opposite party demanded Rs.3,56,494.43 towards the additional cost of construction and the opposite party demanded the said amount without any basis, that the opposite party not put up the construction as per the assurance and there are many defects in construction and therefore the opposite party committed deficiency in service.

          05. The opposite party in his written version and in the proff affidavit contended  the complainant originally applied Tower No.15 and thereafter shifted to Flat No.3 Floor No.12 in tower 42, that the complainant had delayed the payment and committed 73 days delay in payment of installment and thus committed breach of terms of the agreement, as per agreement dated 09.10.2009 Clause No.11 states that the complainant shall have possession of the apartment within 27 months from the date of agreement which on 8^th January 2012, that there is no delay on the part of the opposite party but the delay is on the part of complainant to pay the payment. The opposite party further contended that the opposite party has given all the details regarding the increase of the construction area to the complainant vide letter dated 12.04.2012 and after having satisfied the same the complainant has made the payment, that the complainant fully satisfied the complainant and accepted possession on 06.07.2012 and the complainant in his convenient and auspicious time took possession of the apartment along with car park on 06.07.2014 and complainant unconditionally registered the apartment in his name on 09.11.2012, that there is no deficiency in service on the part of the opposite party.

          06.  The complainant has applied for allotment of flat at Garden City DLF OMR.  Ex.B1 is copy of application form dated 31.03.2018. The complainant also enclosed a cheque for Rs.5,00,000/- along with the application form. The opposite party originally allotted a flat for Rs.54,75,000/-. Subsequently the complainant shifted to Flat No.3 Floor No.12 Tower No.42. Ex.A7 is the copy of agreement dated 09.10.2009  entered in between the complainant and opposite party. As per the agreement the  total cost of flat is Rs.48,18,050/-  and total area of the flat is 1479.23 sq.ft. The clause 11 (a) of the agreement is clearly stated that the opposite party  shall complete  construction of the building within a period of 27 months from the date of execution of agreement. Further the agreement clearly stated about the mode of payment. Annexure 3 of the agreement clearly stated about the schedule of payment. Hence it is the duty of the complainant to pay the amount as per the schedule of payment mentioned in  annexure 3. The complainant has not filed any document show that he paid the amount as per the payment schedule.  The opposite party issued a letter dated 12.04.2012 to the complainant to pay the balance amount. Ex.B3 is the copy of letter. In Ex.B3 the opposite party clearly stated the complainant change his apartment area and common area to the extent of 54 sq.ft and therefore the complainant demanded additional  cost of increased construction area. 

          07. The opposite party entered into an agreement on 09.09.2009  and as per the agreement possession ought to have delivered within 27 months from the date of agreement that is  by January 2012 . But the opposite party handed over possession by his letter dated 06.07.2012. There is delay of 6 months in handing over possession of the flat to the complainant. Ex.B5 is the copy of  handing over possession letter. The delay is  due to non payment of cost of construction by the complainant in time. The opposite party demanded additional  amount and the complainant paid the additional amount only on 09.05.2012. Ex.A10 copy of the letter dated 09.05.2012. Hence the complainant paid  the final amount of Rs.10,96,484/- by cheque on 07.05.2012. After  payment of the entire amount the complainant took possession of the flat on 06.07.2012. The delay in  taking possession  is due to non payment of the balance amount by the complainant in time. There is no delay in handing over possession on the part of the opposite party.

           08. The opposite party demanded a sum of Rs.3,56,494.43 towards the additional construction cost.  Since the complainant shifted the flat from Tower No.15 to Tower No.42 and the total area of the flat is increased and therefore the opposite party demanded additional cost of construction. Further the complainant has not filed any documents to show that there are defects in construction.

             09. The complainant alleged that the opposite party has not used teak wood for making main door, poor quality of door locks and woods were used for doors and cheap accessories are used in the house. It is the duty of the complainant to prove the above allegation by independent evidence. But in this complaint, there is no expert evidence to prove the same.  Further  there is no independence to show that the opposite party used poor quality and cheap material. On the other hand the  opposite party acted as per the terms and conditions mentioned in the agreement. There is no deficiency in service on the part of the opposite party and complainant is not entitled for compensation and other reliefs as claimed in the complaint.

10. POINT NO:3

         In the result the complaint is dismissed. No costs.

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 Commission  on this the 29^th day of  December  2021.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS MARKED ON THE SIDE OF COMPLAINANT:

Ex.A1 dated 31.03.2008          Receipt issued by the opposite party for a sum of Rs.5,00,000/-

Ex.A2 dated 30.06.2008          Receipt issued by opposite party for a sum of Rs.3,78,625/-

Ex.A3 dated 13.08.2008          In-Principle approval granted by SBI in favour of complainant

Ex.A4 dated 03.06.2009          Allotment latter issued by the opposite party

Ex.A5 dated 21.09.2009          Call letter demanding payment on or before 10.01.09

Ex.A6 dated 30.09.2009          E-mails between the complainant and the opposite party

Ex.A7 dated 09.10.2009          Apartment Buyer’s Agreement

Ex.A8 dated 10.10.2009          Letter issued by Canara Bank acknowledging the receipt of the application for home loan

Ex.A9 dated 12.04.2012          Letter by the opposite party demanding additional cost

Ex.A10 dated 09.05.2012        Covering letter given by the complainant without prejudice

Ex.A11 dated 10.05.2012        Receipt issued by the opposite party

Ex.A12 dated 19.05.2012        Letter informing to take delivery of possession

Ex.A13 dated 06.07.2012        Acceptance of Possession by the complainant

Ex.A14 dated 09.11.2012        Conveyance Deed in favour of the complainant

Ex.A15 dated 30.01.2014        Copy of the legal notice and ack. card.

LIST OF DOCUMENTS MARKED ON THE SIDE OF OPPOSITE PARTY :

 

Ex.B1 dated 31.03.2008                   Application for allotment

 

Ex.B2 dated 08.10.2009                   Complainant’s e-mail

 

Ex.B3 dated 12.04.2012                   Letter of the opposite party

 

Ex.B4 dated 19.05.2012                   Letter of the opposite party intimating readiness of

the apartment

 

Ex.B5 dated 06.07.2012          Acceptance of possession signed by the complainant

 

 

MEMBER – I                                                               PRESIDENT