Tamil Nadu

North Chennai

CC/174/2015

B.S.Ramachandran - Complainant(s)

Versus

The Managing Director,M/s.DLF Southern Homes (P) LTD, - Opp.Party(s)

G.Purushotham

15 Feb 2022

ORDER

                                                                  Complaint presented on : 29.04.2015

                                                                    Date of disposal            : 15.02.2022

 

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.174/2015

 

DATED THIS TUESDAY THE 15^th DAY OF FEBRUARY 2022

                                

B.S.Ramachandran,

& R.Jayalakshmi,

B3, Prime  Rose Terrace,

D.No.150, L.B.Road,

Thiruvanmiyur, Chennai – 600 041.

                                                                                             .. Complainants.                                                                        ..Vs..

 

The Managing Director,

M/s. DLF Southern Homes (P) Ltd.,

Old No.826, New No.268,

P.H.Road,

Kilpauk, Chennai – 600 010.

                                                                                        ..  Opposite party.

 

 

 

Counsel for the complainants                          : Mr.G.Purushotham

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

 

 

 

 

ORDER

THIRU. J. JUSTIN DAVID, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to pay  the compensation of Rs.1,35,321/- with cost of this proceedings.

1.THE COMPLAINT IN BRIEF:

          The complainants entered into an Apartment Buyer Agreement with the opposite party on 1^st, April 2010 for construction and handing over of an apartment of 1559 sq.ft. assigned as No.C40084, Tower 40, Floor 8 and Unit 4 in “Garden City DLF OMR”. It is set forth in clause 11(a) of the agreement, the opposite party would complete the construction and hand over the same within 21 months from the date of execution of agreement in the absence of clause 42 Force Majeure (the natural calamities) and other contingents. Along with the above, an important clause has been stipulated in the agreement that in the event of delay in handing over of the apartment, the complainants would be eligible to a compensation at the rate of Rs.5/- per  sq.ft per month for entire super built up area for and every month of such delayed period and the same would be adjusted with the total cost of the apartment during the period of conveyance by sale deed. The complainants were very prompt in payment of dues and not fall under the category of allottees of a default at any circumstances and acquired the possession of apartment and deed of conveyance in our favour at the behest of the intimation letter of the opposite party dated 7^th Feb 2013  after 14 months delay on 12^th March 2013 without any valid reasons and in the absence of natural calamities and other contingents. The said compensation in clause 14 were not considered and adjusted with consideration amount of sale deed. The complainants made numerous representations through e-mail, phone calls, and personal visit to get credited the compensation. There was no any proper response from the other end of opposite party. Hence this complaint.

2.WRITTENVERSION 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 in limine. The Apartment Buyers Agreement dated 01.04.2010 entered between the parties contains an arbitration clause providing for resolution of any disputes between  the parties through process of arbitration. In view of the arbitration clause as stated above and in the light of the bar contained in section 8 of Arbitration and Conciliation Act, 1996. 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 complainant paid an booking amount of Rs.5,00,000/- along with the application dated 05.03.2010  towards booking of Apartment No.04, Floor No.08 in Tower No.40 in Garden city DLF OMR. The complainants executed Apartment Buyers Agreement on 01.04.2010 for purchase of the aforesaid apartment agreeing to purchase the said apartment on the terms and conditions mentioned therein. The complainants having agreed to the terms of the Apartment Buyers Agreement, it is only agreed that the opposite based on the plans and estimates agreed in the agreement and subject to all just exceptions, endeavours to complete construction of the said building/said apartment within a period of 21 months from the date of execution of the agreement including but not limited to reasons mentioned in clauses 11 (b), 11(c)  and clause 42 or due to failure of complainants to pay in time the total price and other charges and dues/payments mentioned in the agreement or any failure on the part of the complainants to abide by all or any of the terms and conditions of this agreement. The complainants have agreed to make the payment of the total price as per the payment plan set out in annexure – III  to this agreement. Other charges, securities, deposits etc. (as specified in this agreement), Taxes and increase thereof (as provided in clause 1.10) shall be payable by the alottee, as and when demanded by the company. The complainants have not paid demand amount towards balance in tax to a sum of Rs.95,099/- to the opposite party. The complainant knowing well that they need to remit the balance of VAT amount within 30 days from the date of such intimation, have failed to pay the same and thus have been in default to the agreement. As stated supra, the complainants being at default to the Apartment Buyers Agreement by not paying the balance VAT amount within time line, are not eligible for any compensation. The complainants were also given an option for adjustment of the VAT amount from the delayed compensation amount which is in accordance of clause 7 of the Apartment Buyers Agreement and pay back the balance amount after adjustment to the complainants. The complainants having received the above offered did not revert to the opposite party for the reasons best known to them. Thus the complainants became ineligible to claim any compensation in accordance   clause 14 of the Apartment Buyers Agreement.

3. POINTS FOR CONSIDERATION:    

1. Whether there is deficiency in service on the part of the opposite party?
2. Whether the complainants is entitled for compensation and cost as claimed in the  complaint?
3. To what other reliefs, the complainants is entitled?

4. POINT NO :1& 2

                The complainants are husband and wife and  the opposite party is the builder. The complainants entered into an Apartment Buyers Agreement with the opposite party on 01.04.2010. with respect to apartment No.04, 8^th floor Tower -40 at GARDEN CITY DLF OMR measuring an extent of 1559 sq.ft. Ex.A1 is the Apartment Buyers Agreement dated 01.04.2010. As per the agreement the cost of the flat per sq.ft is Rs.2,750/- and total cost of the flat including PLS   and cost of car parking  was fixed at Rs.47,15,000/-.

          05. The case of the complainants that as per agreement the opposite party has to complete the construction of the apartment within the period of 21 months from the date execution of agreement and there is 14 months delay in completing the construction and as per clause 14 of the agreement, the opposite party agreed to pay a sum of  Rs.5/- per sq.ft per month as compensation in case of delay in handing over possession of the apartment and the opposite party handed over the  possession of the apartment on 07.02.2013 after a delay of 14 months. The complainants further alleged that the complainants paid the cost of construction in time as per the  terms and conditions mentioned in the agreement and final amount of Rs.10,87,376/- was demanded by the opposite party by his letter dated 07.02.2013  and complainants also paid the said amount and took over the apartment  after execution of sale deed in favour of the complainants on 28.02.2013, but the opposite party neither paid the admissible compensation of Rs.1,09,130/-(Rs.5X1059sq.ft X 14 months) nor  adjusted the compensation amount with  cost of the apartment during execution of sale deed as stated in clause 14 of the agreement.

          06. The opposite party contended as per 11 (a) of the Apartment Buyers Agreement it is only agreed that the opposite party based on the plans and estimates agreed in the agreement and subject to all just exception, endeavors to complete construction of the apartment within a period of 21 months from the date of execution of agreement . The opposite party further contended that as per clause 14 of the agreement the opposite party in case could not deliver the apartment under clause 11 (a) then the opposite party  shall pay only to the complainants and not to any one else subject to the complainants not being in default under any terms of agreement, compensation at Rs.5/- per sq.ft of the super area of the apartment per month for the period of such delay and such compensation shall be done only at the time of execution of the conveyance deed. The opposite party further alleged the complainants has to pay the balance VAT amount of Rs.95,099/- and therefore the complainants is not eligible for any compensation.

          07. The complainants paid the entire cost of construction has stated in the Apartment Buyers Agreement dated 01.04.2010. There is no delay in payment on the part of the complainants. The opposite party by their letter date 07.02.2013 informed the complainants that the apartment in tower No.40, Floor No.08, Unit No.4 in GARDEN CITY DLF OMR is completed and they are ready  to hand over physical possession of the apartment. Further the opposite party requested to the complainants to pay the balance amount. The complainants paid the balance final amount of Rs.10,87,376/- . before execution of the sale deed. The opposite party also  not disputed the same. Ex.A2 is the copy of letter dated 01.02.2013 written by the opposite party to the complainants.

          08. The opposite party after receipt of  all the payments payable under  Ex.A1 agreement dated 01.04.2010, executed the conveyance deed for Rs.42,94,400/-  in favour of the complainants. Ex.A3 is the copy of conveyance deed dated 28.02.2013. The complainants also taken possession of the apartment.

          09. The complainants demanded the opposite party to refund the compensation for the delayed period. But the opposite party failed pay the compensation to the complainants. The complainants and the opposite party entered in to  an  Apartment Buyers Agreement on 01.04.2010  and as per clause 11 (a) of the agreement  of the opposite party has to complete the construction of the apartment within a period of 21 months from the date of execution this agreement. Therefore, as per clause 11 (a) of the agreement of the opposite party has to complete the construction of the apartment on or before 31.12.2011. But the opposite party completed the construction in the month of Feb 2013 and informed the complainants that the opposite party completed the construction and ready to hand over  possession of the apartment to the complainants by their letter dated 07.02.2013. Therefore the opposite party completed construction in  the first week of February 2013 and there is delay of 13 months in completing the construction of the apartment.

          10. The opposite party agreed to pay Rs.5/- per sq.ft. of the super area per month for the delay of one full month in taking over the apartment for the entire period of delay. Clause 14 of the agreement clearly stated if the company is unable to give possession within the period of 21 months  subject to the allottee not being in default under any terms of the agreement  entitled for compensation at Rs.5/- per sq/ft of the super area of the  apartment  per month for the period such delay. Further clause 14 of the agreement states, the adjustment of such compensation shall be done at the time of execution of the conveyance deal of the said apartment to the allotee.

          11. The complainants paid all the dues without any default and paid final amount of Rs.10,87,376/-  to the opposite party before handing over possession of the apartment. The conveyance deed also executed on 28.02.2013. But the opposite party  failed to adjust the delayed  period  compensation amount at the time of execution conveyance deed. Therefore, the complainants written a letter Ex.A4 dated 07.07.2014 to the complainants and thereafter Ex.A5 legal notice dated 13.02.2015 to the opposite party to pay the compensation amount. The opposite party by its letter dated 15.06.2015  stated as follows: “With regard to your delay compensation the list is being processed and all cheques should be released by the second week of April”. But the opposite party not paid the compensation by cheque, instead the opposite party  written a letter Ex.B4 dated 19.05.2014 and Ex.B5 letter dated 29.08.2015 to pay the VAT amount of Rs.95,099/-. The opposite party without any void and sufficient reason and  in violation of the condition mentioned of Ex.A1 agreement keeping the compensation amount with them and without adjusting the compensation of amount at the time of execution of conveyance deed. The question of adjusting the compensation amount with the  alleged VAT amount does not arise at the stage of execution of conveyance deed. The above attitude of the opposite party amounts to deficiency in service.

          12. The learned counsel for the opposite party argued that there is an arbitration clause in the  agreement stating that all the dispute between the party to  be redressed through arbitration and therefore this consumer complaint is not maintainable. But as per section 3 of the consumer protection act 1986, this commission has jurisdiction to entertain this complaint.  Further the complainants filed this complaint within the period of   two years from the date of cause of action and there is no delay in filing this complaint.

          13. The opposite party completed the construction the 1^st week of Feb 2013  and there is delay of 13 months in completing the construction. The complainants paid the entire cost of construction and other payments demand by the opposite party within stipulated time before execution of the conveyance deed. The opposite party  is  liable to pay the delayed period compensation at the rate of 5/p per sq.ft per month. The total extent of super area is 1559/- Therefore the opposite party is liable  to pay Rs.5per sq.ft for 1559 sq.ft per month for 13 months which comes to Rs.1,01,335/-. The opposite failed pay compensation inspite of repeated demand and same caused mental agony financial loss to the complainants. Hence there is deficiency in service on the part of the opposite party and complainants is entitled for compensation of Rs. 1,01,335/- besides a sum of Rs.10,000/- cost of this proceedings.

14.POINT NO:3

          In the result, this complaint is allowed in part. The opposite party is ordered to pay a sum of Rs.1,01,335/- (Rupees one lakh one thousand three hundred and thirty five only) towards compensation for the delayed period of handing over possession of the apartment to the complainants besides, a sum of Rs.10,000/- (Rupees ten thousand only) towards cost of this proceedings.

          The above amount shall be paid to the complainants within 2 months from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest from the date of this order to 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 Commission on this the 15^th  day of February 2022.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS MARKED ON THE SIDE OF COMPLAINANTS:

Ex.A1 dated 01.04.2010                   Construction Agreement

Ex.A2 dated  01.02.2013                  Intimation letter from opposite party

Ex.A3 dated 28.02.2013                   Sale deed

Ex.A4 dated 07.07.2014                   Claim letter

Ex.A5 dated 13.02.2015                   Lawyer’s Notice

Ex.A6 dated 16.02.2015                   Acknowledgement

Ex.A7 dated 07.02.2013                   Letter of DLF (Handing over intimation)

Ex.A8 dated 15.03.2013                   E-mail from DLF

Ex.A9 dated 13.04.2012                   Letter of DLF (Change in S.B.Area)

Ex.A10 dated 19.05.2014                 Letter of DLF (Regarding VAT)

LIST OF DOCUMENTS MARKED ON THE SIDE OF OPPOSITE PARTY

Ex.B1 dated 05.03.2010                   Application for Allotment

 

Ex.B2 dated 23.02.2016                   Statement of Accounts

 

Ex.B3 dated 28.02.2013                   Final statement of accounts of C40084 Apartment

 

Ex.B4 dated 19.05.2014                   Letter from opposite party to complainant

 

Ex.B5 dated 29.08.2015                   E-mail from opposite party 1^st complainant

 

 

MEMBER – I                                                               PRESIDENT