Andhra Pradesh

Chittoor-II at triputi

CC/46/2013

Nataraja Sreenivasulu S/o. A.G.Nataraja - Complainant(s)

Versus

The Marg Properties by its General Manager - Opp.Party(s)

G.Ramaiah Pillai

19 May 2014

ORDER

                    Date of filing:14.08.2013

                                                                                                    Date of Disposal:19.05.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, TIRUPATI.

 

PRESENT:Sri.M.Anand, President (FAC)

      Smt.T.Anitha, Member

                                  

MONDAY THE NINTEENTH DAY OF MAY, TWO THOUSAND AND FOURTEEN

 

C.C.No.46/2013

 

Between

 

1.       Nataraja Sreenivasulu,

          S/o. A.G.Nataraja.

 

2.       N.Balakusuma,

          W/o. N.Sreenivasulu.

 

Both are husband and wife and residing at:

 

Flat No.24, Padmavathi Apartments,

Kennady Nagar,

Tirupati – 517 501.                                                       …..Complainants.

 

And

 

 

1.       The Marg Properties,

          By its General Manager A.V.Surender,

          Viswasakthi, Panneerukalva Road,

          Kotramangalam,

          Renigunta Mandal,

          Tiruchanoor Bye-pass Road,

          Tirupati – 517 503.

 

2.       M/s. Marg Limited,

          By its Authorized Signatory (Developer),

          Regd. Office 4/318, Rajeev Gandhi Road,

          Kottivakkam,

          Chennai – 600 041.                                           …..Opposite parties.

 

          This complaint coming  before us for final hearing on 14.05.14 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for the complainants and Sri.N.Manohar, counsel for opposite party, and having stood over till this day for consideration, the Forum makes the following:-

ORDER

DELIVERED BY T.ANITHA, MEMBER

ON BEHALF OF THE BENCH

                                                                                                                                                                                                                                 

          This complaint is filed under Section-12 of Consumer Protection Act 1986, complaining deficiency of service on the part of the opposite parties for delaying delivery of possession of flat and also for non issuance of fitness certificate of possession by competent authorities. 

2.  The brief facts of the case are:- The complainants  booked a flat No.303 in Block-A, Phase-I in Marg Viswa Sakthi Venture of opposite parties in S.No.18/3A series of Kotramangalam village accounts of Renigunta Mandal during 2009. The complainants booked a flat on 21.03.2009 by paying an advance of Rs.50,000/- and they entered into sale agreement dt:21.02.2011 for a total consideration of Rs.21,72,051/- towards cost of the flat and also it is stipulated in the agreement that if there is any delay in payment, the developer shall be entitled to recover from the purchaser at 15% interest, likewise if there is any delay in handing-over the flat by the developer by June 2011 with grace period of 4 months, the developer is liable to pay at Rs.5/- per sq.ft. The above said flat consists of 1449 sq.ft vide sale cum construction agreement dt:21.02.2011. The complainant further submit that the opposite party No.1 confirmed the booking of the flat by letter dt:11.04.2011 and he paid a total sum of Rs.25,01,900/- including stamp duty charges towards the flat No.303 vide document No.5 dt:17.10.2012. The opposite party issued No Due’s Certificate dt:28.12.2012. In addition to this, the opposite party collected maintenance charges of Rs.26,082/- for the period from December 2012 to November 2013 in advance. The complainant further submits that the opposite party after receiving the full consideration amount has not handed over the flat till February 2013 and did not obtain the fitness for occupation certificate from the competent authorities. Hence, the complainant caused a legal notice dt:15.07.2013 demanding the possession and fitness certificate. The opposite party after receiving the said notice kept silent. Hence, the complainant constrained to file the present complaint praying this Forum to direct the opposite parties to handover the completion certificate of fitness for occupation from the competent authority and also to pay Rs.1,44,900/- towards the liability for not handover the flat from July 2011 to February 2013 and to pay Rs.2,00,000/- for causing mental agony and for deficiency of service and Rs.2,000/- towards costs.

3.  The opposite party came into appearance and filed written version by admitting the sale of the flat that the complainants  booked a flat No.303 in Marg Vishwasakthi and he approached State Bank of Hyderabad for financial assistance, but the payment has been delayed in approval by the customers due to which the construction progress was delayed and also stated that the flat purchased by the complainant costs of Rs.25,01,900/-, which includes car parking, club membership, water and electricity and sewage charges including with maintenance charges etc. The opposite party further stated that they have intimated the complainant to take over the possession of the flat in the month of October 2012 but the complainant requested the opposite party to make some alterations in the flat, which has been carried out by them and after completing the alterations, the flat was handed-over to the complainant on 23.12.2012 and also the complainant executed a letter in favour of them with regard to takeover the possession of the flat. As per the agreement, this opposite party complied the conditions of the agreement and as per the agreement the delivery date is June 2011 with a grace period of 4 months and the delay compensation of Rs.5/- per sq.ft. had been worked-out for the period between October 2011 to October 2012 and also they have already informed the complainant that they will pay Rs.54,262/- for the delay payment charges in delivery of flat No.303 and also regarding that they have issued reply notice to the complainant, but the complainant without receiving the said amount approached this Forum with malafide intention to suffer the opposite party. Hence, there is no deficiency of service on the part of the opposite party and complaint is liable to be dismissed.            

4.  The complainant No.1 N.Sreenivasulu, filed the evidence on affidavit and got marked Exs.A1 to A15. On behalf of the opposite parties one M.Chenga Reddy, Chief Executive of M/s. Marg Limited filed his evidence on affidavit filed but no exhibits were marked on behalf of them. Written arguments were filed on behalf of both sides. Oral arguments were heard.

5. Now the points for consideration are:

(i).  Whether there is any deficiency of service on the part of the opposite

parties? If so, whether the opposite party is liable to pay any compensation towards delay in delivery of possession to the complainants and whether the opposite parties are liable to supply fitness certificate for occupation issued by competent authorities?

          (ii).  To what relief?

6.  Point No.(i):- The counsel for the complainant contended that the complainant 1 and 2 husband and wife jointly booked a flat No.303 from the opposite parties venture in Marg Viswa Sakthi on 21.03.2009 and entered into an agreement with opposite party on 21.02.2011 i.e. Ex.A1 and also contended that there are some stipulations in the said agreement with regard to delivery of the flat and payment. If there is any delay in payment, the developer is entitled to recover from the purchaser at 15% interest likewise if there is any delay in handover the possession of  the  flat by June 2011 with grace period of 4 months, the developer is liable to pay Rs.5/- per sq.ft of flat No.303, which consists of 1449 sq.ft. Accordingly, the PW.1 paid a sum of Rs.25,01,900/- towards the cost of the flat, a copy of the schedule of payment was filed under Ex.A5. In addition to that the opposite party collected maintenance charges for Rs.26,082/- for a period of 12 months from December 2012 to November 2013 under Ex.A7 dt:28.12.2012 and also argued that after several notices and reminders, on 20.02.2013 the opposite party handed-over the flat to PW.1. Hence, there is huge delay in delivery of the flat to PW.1 and also stated that the oppose party failed to supply fitness certificate issued by competent authorities and hence there is deficiency of service on the part of the opposite parties.

7.  In reply to the contentions of PW.1, the counsel for opposite party contended that the opposite party intimated the complainant to take the possession in the month of October 2012, but the complainant asked the opposite party to make some alterations in the flat, which has been carried out by them and subsequently they have handed-over the flat to the complainant on 23.12.2012 and submitted that the complainant executed a letter with regard to No Due Certificate i.e. Ex.A6 and also the collection of maintenance charges i.e. Ex.A7. The counsel for the opposite party also contended that as per the terms and conditions of the agreement, the delivery date is June 2011 with a grace period of 4 months, the compensation of Rs.5/- per sq.ft. has been worked out for the period of October 2011 to October 2012 and also they are already informed that they will pay Rs.54,262/- for the delay in delivery of the flat to the complainant, but the complainant filed this complaint with all false allegations. Hence, the complaint is liable to be dismissed.

8.  From the entire factual matrix of the case, it is made out that, in accordance with the agreement dt:21.02.2011 executed between both the parties under Ex.A1, it is clearly stipulated certain conditions. But as per Ex.A5 payment schedule, the final cheque for Rs.1,74,195/- was paid on 17.10.2012 by the complainant and also the opposite party issued No Due Certificate on 23.12.2012 under Ex.A6. PW.1 contended that till 20.02.2013 the possession was not delivered but under Ex.A14 it clearly shows that the PW.1 sent a mail to opposite party on 27.10.2012 by seeking some alterations in the said flat, this itself clearly shows that the complainant himself asked the opposite party to make some alterations in the month of October 2012. Under Ex.A7 the complainants paid maintenance charges to opposite party for December 2012 to November 2013 but generally the purchaser should be required to pay maintenance charges only whet h possession of the flat has been given to him but in this case it creates doubt why the complainant paid the maintenance charges prior to taking the possession from the opposite party is not at all understandable. But under Ex.A10 it clearly shows that the flat was finally delivered to the complainant on 20.02.2013. In this case, as per Ex.A1 agreement the delivery should be given by June 2011 but they handed-over the possession on 20.02.2013 and also the opposite party admitted that there is delay in their part in deliver of the flat to the complainant. We have to see whether there is any reasonable delay or inordinate delay.

9.  In this case, there is a delay of 12 months excluding the grace period of     4 months. Only after filing of the present complaint, the opposite party came forward to pay the compensation for delay in delivery of the flat. If the opposite party should have taken initiation to settle the dispute even prior to filing of the case, the complainant might not have approached the Forum for redressal but they kept silent and they caused much inconvenience to the complainant with 12 months delay in delivery of possession. Due to the inaction of the opposite party in time, the complainant suffered a lot, which leads to mental agony and torture to the complainant. Hence, we are of the opinion that there is clear deficiency of service on the part of the opposite parties towards the complainants regarding delay in delivery of possession, because the opposite party not complied the conditions as stipulated in the agreement.

10.  Next contention of  the Pw1 is that the opposite party fail to supply fitness certificate issued by competent authorities. As per the evidence of pw1 he stated that he took possession on 20.2.13 from the opposite party  at the time of  delivery of the   possession the opposite party  gave Ex. A10.(Flat handing over check list) same was signed by the complainant  and he continuously enjoying the same . Only after five months of his possession on 5.7.13 he issued legal notice  demanding  the opposite parties to supply fitness certificate. If at all the opposite party is liable to supply fitness certificate the pw1 would have insisted the opposite parties to supply the same at the time of taking over the possession not at belated stage hence after enjoying the possession for 5months the complainant would not go back for the supply of fitness certificate for occupation because he is already in occupation . Hence this point is answered against the complainant

11. Point No.(ii):-  In the result, the complaint is allowed in part directing the opposite parties 1 and 2 to pay Rs.54,262/- (Rupees fifty four thousand two hundred and sixty two only) with interest at 9% per annum from the date of the complaint, till the date of realization, for the delay in handing over the flat No.303 to the complainants. The opposite parties are further directed to pay Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony suffered by the complainants. The opposite parties further directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the litigation.

The rest of the claim with regard to supply of fitness certificate as prayed for by the complainants 1 and 2 is hereby dismissed.

The order shall be complied within 4 weeks from the date of the order.

Typed by the stenographer, to the dictation and corrected by me and pronounced in the Open Forum this the 19^th day of May, 2014. 

      Sd/-                                                                                             Sd/-                      

Lady Member                                                                          President (FAC).

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BOTH SIDES

 

PW-1: N.Srinivasulu (Evidence Affidavit filed.).

RW-1: M.Chenga Reddy (Chief Affidavit filed.).

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1	21.02.2011	Copy of sale cum construction agreement in favour of  Complainants by the Opposite Parties for Rs.21,72,051/- for flat No.303.
2	11.04.2011	Copy of letter by Opposite Party -1 advising the Complainant No.1 to arrange registration charges and stamp duty for registration of the flat.
3	09.05.2011	Copy of payment of stamp duty and registration fee in favour of  N.Sreenivasulu.
4	09.05.2011	Copy of sale deed for semi-finished flat No.303 for Rs.14,49,000/- in favour of  the Complainants Nos.1 & 2 by Opposite Parties 1 & 2.
5.	17.10.2012	Copy of  schedule of payment for Rs.25,01,900/- towards flat No.303 issued by Opposite Party-1.
6	28.12.2012	Copy of  No due certificate issued to the Complainant Nos.1 & 2 by Opposite Party -1.
7	28.12.2012	Receipt for payment of maintenance charges.
8	08.02.2013	Copy of letter for not handing over flat No.303.
9	20.02.2013	Acknowledgement from Complainant No.1 for receipt of the original sale deed dt:09.05.2011 of Flat No.303.
10	20.02.2013	Copy of handing over of flat check-list for Flat No.303.
11	15.07.2013	Office copy of  Legal Notice to Opposite Parties 1 & 2 with postal acknowledgment.
12	31.07.2013	E-mail letter to the Opposite Parties 1 & 2 to expedite the certificates under Legal Notice etc,.
13	21.03.2009	Receipt for receiving advance amount of Rs.50,000/-
14	11.12.2012	E-mail letter from the Complainant for not completing the construction of the building as per model specification.
15	12.08.2013	Reply to Legal Notice from the Opposite Party received on 17.08.2013.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

- NIL -

 

 

                                                                                                                                                                                                         Sd/-

President (FAC)

// TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

                                           Dist. Consumer Forum-II, Tirupati.    

 

 

Copies to:

 

1.  The complainants.
2. The opposite parties.