Tamil Nadu

North Chennai

193/2012

Mrs S Jayanthi - Complainant(s)

Versus

The MD DLF Southern Homes Pvt Ltd., - Opp.Party(s)

k Mohan

25 Jan 2017

ORDER

                                                              Complaint presented on:  04.06.2012

                                                                   Order pronounced on:25.01.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 25^th  DAY OF JANUARY 2017

 

C.C.NO.193/2012

 

 

1.Mrs.S.Jayanthi,

D/o Mr. Muthusamy,

2.Mr.Sreedhar,

S/o.S.Subramaniam,

Both residing at M-103/5,

30^th Cross Street, Besant Nagar,

Chennai – 600 090.

                                                                                 ..... Complainants

 

..Vs..

 

1. The Managing Director,

M/s. DLF Southern Homes Private Ltd.,

I-E,Jhandewalan Extension,

New Delhi – 110 055.

 

2.Mr.M.Kabaleeswaran,

General Manager,

M/s. DLF Southern Homes Private Ltd.,

Old No.828, New No.268, Poonamallee,

High Road, Kilpauk, Chennai – 600 010.

 

...Opposite Parties

Date of complaint                                   : 31.08.2012

Counsel for Complainants                     : Mr.K.Mohan

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

 

ORDER

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Opposite Parties developed a residential apartment in their project garden city, DLF OMR, Chennai. The Complainant offered to purchase a flat in the above said project and paid a sum of Rs.4,00,000/- vide cheque no.253072 dated 15.01.2008 drawn on Karnataka Bank Chennai in favour of M/s DLF Southern Home Private Limited towards booking amount. The 2^nd Opposite Party having received the amount on 15.01.2008 issued a stamped receipt dated 31.03.2008 allotting a flat on 14^th floor in 14^th block in the garden city. However, the 2^nd Opposite Party by a letter dated 03.06.2008 informed the 1^st Complainant that she was provisionally allotted an Apartment No.1 in Tower No. C-13 in Floor number 13 at garden city without giving any explanation for change of floor.  The Complainant made a further payment of Rs.3,52,400/- cheque dated 14.07.2008 drawn on Karnataka Bank, Chennai. The Opposite Parties were not able to commence the construction work more than one and half year. Due to sudden withdrawal of allottees from the project, the Opposite Parties  was forced to drop certain construction of blocks and again without consent of the Complainant, the 2^nd Opposite Party for the 1^st time sent buyers agreement dated 23.09.2009 mentioning as apartment no.2, floor no.5 building no.39, apartment area 1229.744 sq.ft at the rate of Rs.2500/- sq.ft and mentioning the parking space as B-39/216 attaching schedule of payment. The Complainants also entered in the said agreement.  The Opposite Parties agreed in the said agreement to handover the possession of flat to the Complainants within a period of 27 months from 23.09.2009.  The Opposite Parties also undertook to give a rebate of Rs.200/- per sq.ft to the allottees that, who had shown loyal to the Opposite Parties.  Thereafter, the Complainants made the following payments. 

1. Rs.7,67,400/- Vide Cheque No.966942 dated 08.10.2009 drawn on Karnataka Bank Limited, Besant Nagar, Chennai and a receipt dated 08.10.2009 was duly issued by you confirming the same.
2. Rs.2,87,588/- vide cheque No.936996 dated 18.01.2010 drawn on Canara Bank, Mount Road and a receipt dated 19.01.2010 was duty issued by you confirming the same.
3. Rs.4,05,474/- vide heque No.239117 dated 02.03.2010 drawn on Canara Bank, Mount Road and a receipt dated 04.03.2010 was duly issued by you confirming the same.
4. Rs.8,11,560/- vide chequ No.242024 dated 15.05.2010 drawn on Canara Bank, Mount Road and a receipt dated 17.05.2010 was duly issued by you confirming the same.
5. Rs.4,03,725/- vide cheque No.808029 dated 14.06.2010 drawn on Canara Bank, Mount Road and a receipt dated 15.06.2010 was duly issud by you confirming the same.
6. Rs.4,05,169/- vide cheque No.819885 dated 19.11.2010 drawn on Canara Bank, Mount Road and a receipt dated 24.11.2010 was duly issued by you confirming the same.

The Complainants have paid total payments of Rs.38,33,316/- as against the agreed payment of Rs.40,52,800/- in the buyers agreement, leaving the balance of Rs.2,19,484/-. However as per the schedule of payment annexed in the buyers agreement the Complainants are in due a sum of Rs.2,02,640/- which would be payable on receipt of occupation certificate from the Opposite Parties on 23.12.2011. Having received all the  payments from the Complainants, the Opposite Parties have not delivered possession of the apartment to the Complainants and also till filing of this Complaint.  The Complainants having availed housing loan from the Canara Bank and repaying the EMI to the said bank. Without taking possession from the Opposite Parties the Complainants making EMI caused mental agony to them.  Having agreed to pay rebate at the rate of Rs.200/- per sq ft, the Opposite Parties neglected to give such a rebate proves that they have committed Deficiency in Service. The 2^nd Opposite Party have not sent any due date payment schedule to the Complainants. The 1^st  Complainant issued a  legal notice dated  27.03.2012 to the Opposite Party calling upon  them to register sale deed in respect of  UDS land in their favour.  The 2^nd Opposite Party sent a letter 13.04.2012 demanding further payment from the 1^st Complainant narrating the changes in law with regard to escalation service tax, vat etc., for handing over the possession of flat.  Having the Opposite Parties committed deficiencies in not registering the land and failed to deliver the apartment  inspite of notice issued to them, the Complainants filed this Complaint against them seeking various reliefs  including compensation with interest and cost of the Complaint.

 

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

          The Opposite Parties states that the Complaint is not maintainable under law and the allegation made in the Complaint are denied except those that are specifically admitted in the written version. The Complainant has filed this Complaint suppressing the materials fact within his knowledge.  The 2^nd Opposite Party realized the amount of Rs.4,00,000/- 0n 15.01.2008 is denied  and the cheque was deposited only on 31.03.2008. The Opposite Parties submits that they have not unilaterally changed the flat allotted to the Complainants and the Complainants having agreed by their communications dated 05.08.2009 only the flat was changed. The Opposite Parties were not able to commence constructions is not a concern of the Complainants.  The Complainants having agreed to abide by the terms and conditions in the agreement cannot now complain that they have paid substantial amounts to the Opposite Parties before entering in the agreement dated 23.09.2009. The Opposite Parties submit that the agreement as such should read as a whole document and the Complainants cannot leave one portion and select the other one which seems to suit their convenience. The Opposite Parties submit that the timely payment rebate of Rs.200/- per sq ft. is not part of Apartment Buyers Agreement and the scheme was offered to the customers based on certain conditions as mentioned in the letter dated 29.09.2009. The Opposite Parties submit that the Complainants were never regular in paying the installments and on several occasions the Opposite Parties issued demand notice(s) for payments due and the Complainants inspite of making delayed payments on several occasions were keen in getting rebate without there being any justification. The Opposite Parties deny the allegation in para 15 of the Complaint that the company having received the sum of Rs.7,52,400/- before entering into Apartments Buyers Agreement bearing No.2136 dated 23.09.2009 have mentioned that the allottee has paid a sun of Rs.4.00 lakhs along with application and it amounts to Deficiency in Service. Assuming without admitting that there is delay in handing over the apartment to the buyers(s), there is no provision for payment of compensation in the agreement and payment of compensation, if any, will be as per the agreed terms and conditions of the Apartment Buyers’ Agreement entered between the parties. The payment plan which gives the schedule and due dates were sent along with the Apartment Buyers Agreement dated 23.09.2009 and thereafter reminders were sent to the Complainants for making payment of installments on various dates.  The Opposite Parties submit that it is true that the payment of Rs.4,16,299/- is only delayed payment. It could be seen from the letter dated 03.04.2010 issued by the Opposite Parties, wherein it was clearly intimated that making payments after due date will attract delayed interest and affect timely payment rebate. Therefore, the Complainants are well aware of the fact delay in making the payments not only attract delayed interest but also affects timely payment rebate.  Any alleged delay in delivery of apartment is attributable to several factors viz., delay in getting approval from the competent authorities, delay in process of documents by various government departments etc., The Opposite Parties wrote a possession letter dated 05.01.2013 to the Complainants to take possession of the flat and the said possession notice is valid till 05.03.2013. The Opposite Parties have not committed any Deficiency in Service and therefore prays to dismiss the Complaint with exemplary costs.

3. POINTS FOR CONSIDERATION:

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

          2. Whether the complainant is entitled to any relief? If so to what relief?

 

 

4. POINT NO:1

          The admitted facts are that the Opposite Parties developed a residential complex known as garden city, DLF OMR situated Thazhambur Village and the Complainants agreed to purchase a flat in the said residential complex and paid a sum of Rs.4,00,000/- and booked a Flat on Floor -14 in Block- 14 in Garden City and for the same Ex.A1 receipt was issued by the 2^nd Opposite Party and thereafter the 2^nd Opposite Party wrote Ex.A2 letter dated 03.06.2008  by provisionally allotting Apartment No.11 in Tower No.C-13 on Floor No.13 at Garden City to the 1^st Complainant and then the  1^st Complainant  paid a sum of Rs.3,52,400/- towards purchase of the flat under Ex.A3 receipt and thereafter the 2^nd Opposite Party  wrote Ex.A4 & Ex.A5 letters to the 1^st Complainant that “We are enclosing herewith two copies of the apartment buyers agreement which we request you to sign as per the instructions mentioned therein and return the same  to us” and accordingly  the Complainant also signed Ex.A6 apartment buyers agreement sent  to the Opposite Parties and in the said apartment buyers agreement the total cost of the flat fixed at Rs.40,52,800/- and in  the said agreement Apartment No.2, Floor No.5 , Building No.39 measuring 1229.744 sq ft at the rate of Rs.2,500/- per sq ft was allotted to the Complainants  and they have also paid totally a sum of Rs.38,33,316/- on various dates under Ex.A1, Ex.A3, Ex.A7 to Ex.A12 and apart from that the Complainant also availed  a home loan for a sum of Rs.30,00,000/- from Canara Bank under Ex.A13.

          5. The Complainant contended that they have paid a sum of Rs.38,33,316/- against the total sale price of apartment of Rs.40,52,800/- on various dates within the due time and Ex.A6 apartment buyers  agreement is dated 23.09.2009 and as per Ex.A6 clause 11(a) the Opposite Parties have to deliver the completed apartment in 27 months from the date Ex.A6  i.e. on  23.12.2011 and as such there is a delay of 14 months in delivering the flat and further as per Ex.A6 clause 14 the Opposite Parties have agreed to  pay a sum of Rs.5 per sq ft/per month in case of delayed  possession and further as the Complainant made timely payment as per Ex.A15, the Complainant is entitled for  rebate of Rs.200/-  per sq ft and further no specific date given in the schedule for the payment of the amounts to the Opposite Parties and therefore the Opposite Parties have committed Deficiency in Service.

          6. The Opposite Parties replied that the Complainants have not adhered the schedule,  for the payments made by them and therefore the Complainants are not entitled for rebate and  Ex.B5 & Ex.B10 proves the delay in payment made by the Complainant and in view of the same the Complainants are not entitled to invoke clauses 11(a) and  14 in Ex.A6  apartment buyers agreement  and further after filing of the Complaint the Opposite Parties handed over possession of the apartment in March 2013 after filing of the Complaint.

7. The Opposite Parties counsel further contended that since possession was given, if the Complainant pays vat charges of Rs.85,410/-, legal charges for a sum of Rs.16,000/- and CD charges of Rs.400/- they are willing to execute the sale deed in favour of the Complainant.  For this contention the Complainant replied that he had already paid more than the amount agreed by them and further as per the Apartment Buyers Agreement (Ex.A6), the possession could have been delivered 23.12.2011 and however he delivered possession only on 04.03.2013 after more than a year and therefore he is not liable to pay any amount  to the Opposite Parties and hence order may be passed as prayed excepting handing over the possession of the flat.

8. The total cost of the flat agreed in Ex.A6 agreement is a sum of Rs.40,52,800/- . The Complainant paid a total sum of Rs.38,44,446/- through the Ex.A1, Ex.A3, Ex.A7 to Ex.A12. All the above payments were made on or before 24.11.2010.  The Opposite Parties should have completed and handed over the possession within 27 months from the date of     agreement. Therefore, the Opposite Parties should hand over the possession by 23.12.2011 as per the agreement.  The Opposite Parties   admits that the Complainant made  all payments  received by the company on or before due date excepting only one payment  which was due on 19.11.2010 and for the said payment of Rs.4,05,169/-  which was  due was also  received on 23.11.2010 with four days delay. The Opposite Parties admits that the cheque No.819885 dated 19.11.2010 for the amount of Rs.4.05,169/- was received by them on that day and it was encashed only on 24.11.2010. Since, the Opposite Parties received the cheque from the Complainant on 19.11.2010 for the above said amount, it is deemed that the Complainant have paid the said amount to the Opposite Parties on the day itself. The date of encashment of cheque cannot be considered as date of payment. Therefore, in view of such conclusion, we hold that the Complainant paid the amount of Rs.4,05,169/- to the Opposite Parties on 19.11.2010 itself by way of cheque and therefore as contended by the Opposite Parties there is no delay of four days in making payment of above said amount to them and it is further held that the Complainant made all the payments within the due date to the Opposite Parties.

 9. The Opposite Parties filed statement of account that each payment have been made with delay  and specifying number of days and further even in the year 2016 he made payment and hence the delay in delivery of the possession will not occur and the same also proves that the Complainant have not paid the full payment. The Complainant counsel replied that there is a change in super area of apartment in Ex.A19 and only for that purpose the further amount was paid in the year 2016. Such argument of Complainant is tenable and further the Opposite Parties himself admitted in Ex.A15 that all the payments made in due date excepting only one payment. Such one payment also we held above that the same was paid in due time and therefore the contention of the Opposite Parties is rejected.

10.  As per the agreement, if the Complainant pays the installments within the due date he is entitled for Timely Payment Rebate (TPR) at the rate of Rs.200/- per sq ft. The payment schedule attached with the agreement at page 43 of the typed set of documents filed by the Complainant. In the said payment schedule the TPR given to the Complainant is a sum of Rs.3,01,000/-  and after deducting such TPR amount, the unit cost determined as Rs.37,51,800/- (flat cost). Admittedly the Complainant paid a sum of Rs.38,44,446/- as against the  liability of the Complainant to pay a sum of Rs.37,51,800/-  towards the cost of the flat as per schedule at page 43 of the agreement. Therefore, the Complainant has paid a sum of Rs.92,646/- towards excess payment to the Opposite Parties.  

11. Though the Complainant paid the entire amount of the cost of the flat within time as per schedule, the Opposite Parties have not delivered the possession of the flat as agreed within 27 months and delivered only after filing of the Complainant and also failed to register the flat is deficiency on their part and therefore, it is held that the Opposite Parties have committed deficiency in service to the Complainant.

12. POINT NO: 2

          The Complainant sought relief delivery of possession and he took the possession after filing of this Complaint and therefore no order in this respect need to be passed.  

13. The Complainant had paid entire cost of the flat before due date of payment and however the Opposite Parties have not delivered the flat by 23.12.2011, as per agreement and thereby the possession was delivered only after 14 months to the Complainant. Ex.A6 agreement clause 14 provides for compensation at the rate of Rs.5/- per sq ft. of the super area per month for the delay in delivery of the apartment and in this respect, the Complainants are entitled for compensation. The Complainants prayed compensation for deficiency in service, mental agony and to register the proportionate UDS land together with ear marked car parking area.

14. It is already held above that the Complainant paid an excess amount of Rs.92,646/- . The Complainant would contend that the vat come into force only in the year 2011. Even before that the Complainant paid the entire cost of the flat. Further for the delay in delivery of possession for 14 months, the Complainant is entitled for compensation and also for mental agony and deficiency in service.  In such circumstances the Complainant is not liable to pay vat charges.  Further due to delay in delivery of possession the Opposite Parties have to bear the legal charges and CD charges and in view of that the Complainant had paid an excess of Rs.92,646/-. Therefore considering the above circumstances of the case for the above said deficiency in service, mental agony and delay in delivery, it would be appropriate to order a sum of Rs.50,000/- towards compensation to the Complainant and apart from that the Opposite Parties  can be directed to register the proportionate UDS land to the Complainant with  earmarked car parking space to them within a stipulated period at the cost of the Opposite Parties.

In the result the Complaint is partly allowed. The Opposite Parties 1 & 2 jointly or severally are ordered to register the proportionate UDS land to the Complainant with earmarked car parking space bearing No.8-39/216 at the cost of the Opposite Parties to the Complainant within two months from the date of this order and also to pay a compensation of Rs.50,000/-(Rupees fifty thousand only) towards mental agony etc., and also to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. The Complaint in respect of other relief is dismissed.

The above amount shall be paid to the Complainant within two months from the date of receipts of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.        

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 25^th day of January 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 31.03.2008                   Receipt

 

Ex.A2 dated 03.06.2008                   Letter of 2^nd Opposite Party to the 1^st Complainant

 

Ex.A3 dated 14.07.2008                   Receipt

 

Ex.A4 dated 06.03.2009                   Allotment Letter issued by the 2^nd Opposite Party

                                                    to the 1^st Complainant

 

Ex.A5 dated 11.08.2009                   Allotment Letter issued by the 2^nd Opposite Party

                                                    to the 1^st Complainant

 

Ex.A6 dated 23.09.2009                   Agreement between the Opposite Parties and the

                                                    Complainants with annexure

 

Ex.A7 dated 08.10.2009                   Receipt

 

Ex.A8 dated 19.01.2010                   Receipt

 

Ex.A9 dated 04.03.2010                   Receipt

 

Ex.A10 dated 17.05.2010                 Receipt

 

Ex.A11 dated 15.06.2010                 Receipt

 

Ex.A12 dated 24.11.2010                 Receipt

 

Ex.A13 dated 17.11.2009                 Loan sanction letter issued by Canara Bank to the

                                                    Complainants

 

Ex.A14 dated 11.10.2011                 E-mail to the 2^nd Opposite Party the 1^st

                                                    Complainant

 

Ex.A15 dated 13.10.2011                 E-mail by the 2^nd Opposite Party the 1^st

                                                    Complainant

 

Ex.A16 dated 26.11.2011                 E-mail by the 2^nd Opposite Party to the 1^st

                                                    Complainant

 

Ex.A17 dated 27.03.2012                 Advocate of the 1^st Complainant to the  Opposite

                                                    Parties

 

Ex.A18 dated NIL                             Acknowledgement cards

 

Ex.A19 dated 13.04.2012                 Letter of the 2^nd Opposite Party to the 1^st

                                                     Complainant

 

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY:

Ex.B1 dated 09.07.2008                   Reminder letter from Opposite Party’s to 1^st

                                                    Complainant

Ex.B2 dated 29.09.2009                   Letter from Opposite Party’s to 1^st Complainant

Ex.B3 dated 03.04.2010                   Letter from Opposite Party’s to 1^st Complainant

Ex.B4 dated 18.08.2011                   E-mail from Opposite Party’s on the issue of

                                                    timely payment rebate

 

Ex.B5 dated 12.10.2011                   Statement pertaining to Delayed interest

Ex.B6 dated 14.01.2012                   Letter to 1^st Complainant

Ex.B7 dated 26.03.2012                   E-mail from Opposite Party’s to 1^st Complainant

Ex.B8 dated 20.12.2012                   Indemnity cum undertaking

Ex.B9 dated 05.01.2013                   Letter from Complainant to Opposite Party

Ex.B10 dated 29.01.2013                 Statement relating to Delayed interest

Ex.B11 dated NIL                             Reply notice from Opposite Party’s to

                                                    Complainant’s counsel

 

Ex.B12 dated 10.06.2009                 Letter from Opposite Parties to Complainants

Ex.B13 dated 05.08.2009                 Letter from Complainants to Opposite Parties

                            

 

MEMBER – II                                                               PRESIDENT