Date of Filing : 19.03.2019
Date of Disposal: 29.11.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.14/2019
THIS TUESDAY, THE 29th DAY OF NOVEMBER 2022
Mrs.N.Haripriya, S/o.S.Gnanaskandan,
No.31-24, 1st Cross Street,
Bharathi Nagar, Ambattur, Chennai 53. .........Complainant.
//Vs//
Mr.V.Dineshkumar,
Proprietor of M/s.Vijayan Enterprises,
No.7-A, Anna Salai, Vijayalakshmipuram,
Ambattur, Chennai 600 053. ...Opposite party.
Counsel for the complainant : M/s.G.Balu, Advocate.
Counsel for the opposite party : Mr.N.V.Prakash, Advocate.
This complaint is coming before us on various dates and finally on 21.11.2022 in the presence of M/s.G.Balu Advocate, counsel for the complainant and Mr.N.V.Prakash Advocate counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service in handing over the flat to the complainant along with a prayer to direct the opposite parties to handover the flat to the complainant or to pay a sum of Rs.25,000/- per month till the handing over the flat from 20.09.2014 till November 2018 a sum of Rs.12,25,000/- and to pay a sum of Rs.7,50,000/- due to non handing over of the flat and to direct the opposite party to take steps to restore the slot No.4 car parking by deleting slot No.5 car parking by executing rectification deed cancelling the subsequent sale deed illegally executed by the opposite party and to pay a sum of Rs.1,00,000/- towards for the mental agony caused by the opposite party to the complainant.
Summary of facts culminating into complaint:-
It was the case of the complainant that when he intend to purchase a flat, the opposite party had approached and offered to sell the property at one of the opposite party’s running projects in the name of Brindhavan and delivered the brochure of the proposed construction of the said project which showed the entire project consisting of six flats and four car parking slots together with the specification of construction. The opposite party represented that the project shall be constructed as per the brochure and only four car parking slots would be made available. The complainant believing the opposite party’s word accepted the said offer and agreed to purchase the property. On 20.09.2014 the complainant entered into an agreement of sale in respect of the sale of the complainant’s proposed flat’s respective undivided share of land with the power of Attorney of the opposite party and the same day the complainant entered into a construction agreement for the construction of flat in the 1st floor of the said project. At the time of entering the construction agreement, the opposite party had categorically stated that the entire project shall consist only four car parks, the same has been confirmed in the brochure provided by the opposite party to the complainant, and all the four car parks will be sold to the potential buyers on cost basis and accordingly the complainant had paid the necessary sale consideration as demanded by the opposite party in respect of one of the car parks apart from the cost of the flat. The complainant submits that in the said construction agreement the opposite party has stated that the car parking slot No.4 shall be allotted to the complainant and shall be exclusively highlighted. In the terms of the aforesaid construction agreement, the complainant had periodically made the payment as and when demanded by the opposite party and after major completion of the said project the opposite party marked a portion in the car parking area of the said project as car parking slot No.4 and agreed to deliver the same at the time of delivering the possession of the flat to the complainant. On receipt of the entire contractual amount from the complainant the opposite party had sold 448 square feet of undivided share of land to the complainant and that day onwards the complainant had been demanding for the possession of the said flat but till date the opposite party had neither delivered possession of the said flat together with car parking and nor the completion certificate from civic authorities even though the flat was sold by the opposite party on 20.09.2014 and whenever the complainant had approached the opposite party for building completion certificate, the opposite party has not chosen to respond with the complainant and her husband. The complainant on her recent visit to the project was shocked and surprised that the exclusive car parking slot No.4 allotted to the complainant was bifurcated into two portions and half of the portion has been marked as car parking slot No.5 which is quiet contrary to the brochure. The complainant approached and informed that the brochure shows only four car parking slots and questioned regarding the bifurcation of her parking slot but the opposite party had replied to the complainant that it is his discretion. When the opposite party had constructed the said apartment he had violated the rules and regulations of the Government and deviated the norms prescribed by the Government and the complainant came to know that the opposite party had not provided necessary set back area on all the four sides of the building and apart from that the building plan sanctioned by the Corporation of Chennai shows that a major portion of 2nd floor should be left as open area but the opposite party had constructed building on 3/4th area of the 2nd floor and left only small portion as open area. It is the duty and responsibility of the opposite party to modify the building and to construct as per the approval plan provided by the civic authorities and to obtain the completion certificate from the authorities and to deliver the same to the complainant. On inspecting the suit property the complainant came to know that the construction was not upto the mark and there are several heavy cracks on the walls and that the complainant had brought the same to the knowledge of the opposite party for which the opposite party had given evasive reply. It was submitted that failure to redress the grievance of the complainant clearly falls within the ambit and scope of deficiency of service and opposite parties’ action has only put the complainant under great depression and mental agony. Thus the complainant left with no other option preferred a complaint on 22.05.2017 to the Police at Ambattur Police station. To add fuel to the fire the opposite party filed one vexatious suit for bare injunction in O.S.No.225/2017 on the file of the Sub-Court, Poonamallee against the complainant and her husband to restrain them from interfering with the opposite party’s possession of the entire property which includes the complainant’s flat and that the same goes to show that the opposite party never handed over the possession of the flat to the complainant even though the opposite party had received entire sale consideration of Rs.43,00,000/- including Rs.1,00,000/- for the car parking. The commission and omission of the opposite party in not handing over of the flat as per the terms and conditions of the construction agreement amounts to deficiency in service on the part of the opposite party and attracts the penal provisions of the Consumer Protection Act. Thus aggrieved by the act of the opposite party the present complaint was filed for the following reliefs as mentioned below;
To direct the opposite parties to handover the flat to the complainant or to pay a sum of Rs.25,000/- per month till the handing over the flat from 20.09.2014 till November 2018 a totalling sum of Rs.12,25,000/-;
To pay a sum of Rs.7,50,000/- due to the non handing over of the flat;
To direct the opposite party to take steps to restore the slots No.4 of car parking by deleting the slot No.5 of the car parking on the ground and by the rectification deed of the person in whose name the subsequent sae deed was illegally executed by the opposite party;
To pay a sum of Rs.1,00,000/- towards for the mental agony caused by the opposite party to the complainant.
Crux of the defence put forth by the opposite party:-
The opposite party filed version disputing the complaint allegations contending inter alia that the consumer complaint arising out of disputes between the parties pursuant to registered construction agreement dated 20.09.2014. It was specifically mentioned in clause No.47 of the said Construction Agreement dated 20.09.2014 that only the courts at Chennai will have jurisdiction in case of any dispute between the parties. Therefore this Hon’ble Commission is not having territorial jurisdiction to maintain the present complaint between the parties. The total value of the complaint is Rs.20.75,000/- which is exceeding the pecuniary jurisdiction of this Hon’ble Commission and therefore this Commission is not having pecuniary jurisdiction to try the present complaint. It was submitted that the present complaint was hopelessly barred by limitation. Brindhavan was the only project for the opposite party at that point of time. It was submitted that the complainant who had approached the opposite party had requested for purchase of flat and denied the allegation of the complainant that the opposite party had stated that there are six flats with four covered car parking. At the time of the complainant’s entry the building was almost completed with slight works pending the complainant could not claim any right on the basis of brochure contrary to her written documents. . The opposite party denied the allegation that he had represented that construction will be in accordance with brochure and only four car parking slots will be made and the complainant believed the opposite party would honour the commitments provided in the said brochure as well as other commitments and agreed to purchase the property. When there are six flats which are proposed to be constructed there was no stretch of imagination that only four car parking will be provided. The opposite party had from the beginning itself planned and provided for five car parking slots only. In fact that is known to the complainant even at the time of entering into sale agreement and construction agreement on 20.09.2014 and subsequently when sale deed was executed on 23.10.2014. Further these allegations were raised by the complainant even in her lawyer’s notice issued as early as on 27.03.2015. Therefore complainant had deliberately and falsely alleged as if she came to know the same recently only. It is true that there was mediation through Mr.Prakash counsel for the opposite party. The complainant made unreasonable demands for non-existing reason. Therefore due to the attitude of the complainant the matter could not be settled. Thus they sought for the complaint to be dismissed.
The complainant has filed proof affidavit and documents Ex.A1 to Ex.11 were marked on their side. On the side of opposite party proof affidavit was filed and documents Ex.B1 & Ex.9 were filed by them.
Point for consideration:-
Whether the opposite party had committed deficiency in service in handing over the possession of the flat to the complainant even after receipt of the entire sale consideration thereby caused delay in handing over the possession against the terms and conditions in the construction agreement and whether the same has been successfully proved by the complainant by admissible evidence?
If so to what relief the complainant is entitled?
Point:1
On the side of the complainant the following documents were filed in support of the complaint allegations;
Copy of the schedule property was marked as Ex.A1;
Sale deed executed by the opposite party in favour of the complainant dated 23.10.2014 was marked as Ex.A2;
Construction Agreement between the complainant and the opposite party dated 20.09.2014 was marked as Ex.A3;
Legal notice issued by the complainant to the opposite party dated 27.03.2015 was marked as Ex.A4;
Rejoinder notice issued by the complainant to the opposite party dated 12.02.2016 was marked as Ex.A5;
Legal notice issued by the complainant to the C.M.D.A. Authorities dated 21.04.2016 was marked as Ex.A6;
Copy of Plaint in O.S.No.225/2017 on the file of the Sub-Court, Poonamallee was marked as Ex.A7;
Copy of written statement in O.S.No.225/2017 on the file of Sub-Court, Poonamallee was marked as Ex.A8;
Receipt issued by the opposite party for the payment of Rs.6,00,000/- dated 22.10.2014 was marked as Ex.A9;
Conversation between both parties was marked as Ex.A10;
Pen drive was marked as Ex.A11;
On the side of opposite parties the following documents were filed in support of their defence;
Construction agreement dated 20.09.2014 was marked as Ex.B1;
Sale Deed for UDS dated 23.10.2014 was marked as Ex.B2;
Legal notice issued by complainant dated 27.03.2015 was marked as Ex.B3;
Legal notice issued by the complainant dated 12.02.2016 was marked as Ex.B4;
Reply notice issued by the opposite party dated 30.05.2016 was marked as Ex.B5;
Electricity Bills was marked as Ex.B6;
House photos evidencing completion was marked as Ex.B7;
Copy of plaint in O.S.No.225/2017 on the file of Sub Court, Poonamallee was marked as Ex.B8;
Written statement filed by the complainant in O.S.No.225/2017 on the file of Sub-Court, Poonamallee was marked as Ex.B9;
Heard the oral arguments adduced by both parties and perused the written argument and pleadings and evidence produced by both parties. The opposite party had raised a defence with regard to the maintainability of the complaint with respect to the territorial, pecuniary and limitation.
With regard to territorial jurisdiction the opposite party had taken defence that as per construction agreement clause 47 only the Chennai Courts has jurisdiction but as per jurisdiction conferred on the consumer commission the place of opposite party is found to have come under the jurisdiction of this commission. Hence the complaint is maintainable before this commission and the defence of the opposite party with regard to the territorial jurisdiction has to be rejected.
With regard to the defence taken by the opposite party that the total claim around 20,75,000/-and the present complaint is not maintainable as the pecuniary jurisdiction for this commission is only below Rs.20,00,000/-. This this commission is of the view that the complaint though filed under Consumer Protection Act 1986 it was numbered and was pending for adjudicate all these years. Though the opposite party had taken a defence with regard to the pecuniary jurisdiction they have not filed any application to decide the issue as preliminary issue and to dismiss the complaint. But had filed proof affidavit, documents and written arguments and had also adduced oral arguments thus participated in the proceedings. In such circumstances considering the scope and ambit of Consumer Protection Act this commission being a Social Welfare legislation is of the view that dismissing the complaint at this stage would defeat the interest of consumer for which purpose the act was enacted. We find our view supported by an order passed by the Apex Court in Civil Appeal No.4767/2019 in Vibha Bakshi Gokhale & Anr Vs M/s.Gruhashilp Construction & Ors dated 10.05.2019 wherein the Apex Court has held that rejection of the complaint on technical ground amounts to disregard of the requirements of substantial justice. It is held that as follows;
“We have also been repeatedly observing that marginal delays are not being condoned by the NCDRC on the ground that the Consumer Protection Act 1986 stipulates a period within which a consumer complaint has to be disposed of. Though the Act stipulates a period for disposing of a consumer complaint, it is also a sobering reflection that complaints cannot be disposed of due to non-availability of resources and infrastructure. In this background, it is harsh to penalise a bona fide litigant for marginal delays that may occur in the judicial process. The consumer fora should bear this in mind so that the ends of justice are not defeated. 5 In view of the fact that the complaint was dismissed on a mere technicality, we did not consider it necessary to issue notice to the respondent. We, however, set aside the impugned order of the NCDRC dated 15 February 2019 and restore Consumer Complaint No 1432 of 2016 to the file of the NCDRC“.
Thus it is held that a bona fide litigant should not be penalized and the Consumer Fora should bear the same in mind so that the ends of justice was not defeated.
With regard to the defence of limitation, the contention of the complainant is that the opposite party has not handed over the possession. It is well established by plethora of judgments that the cause of action for the complaint with regard to construction continues until the possession was handed over and hence the complaint is very well with the limitation period as it has a continuous cause of action.
Point No.2:-
The crux of the oral arguments adduced by the learned counsel appearing for the complainant is that the opposite party failed to hand over the possession of the flat in spite of receiving the entire sale consideration. It was submitted by him that the opposite party themselves had admitted that there was some mediation between the complainant and the opposite party which apparently shows that the opposite party had failed to hand over the possession to the complainant. Further the opposite party had also filed Civil Suit before Sub-Court, Poonamallee against the complainant for bare injunction. Thus he argued for the complaint to be allowed with the prayer for hand over possession along with delayed compensation as agreed in the agreement.
On the other hand the crux of the oral arguments adduced by the opposite party is that the possession has been already handed over to the complainant and that the Electricity Bills were produced in proof of completion of the construction. It was also submitted by the opposite party that the complainant was yet to pay a sum of Rs.41,800/- to the opposite party.
In the reply argument the complainant contended that though electricity bill was found in the name of complainant, the possession was not handed over and that also suit was filed by the opposite party for the alleged pending amount of Rs.41,800/-, only to avoid the legitimate claim of the complainant.
This commission appraised the allegations and defences put forth by both parties. The complainant had produced the brochure of the property as Ex.A1. In the brochure it has clearly mentioned that only four car parking was available. In such situation the defence of the opposite party that the complainant was well aware that there are six car parks even at the time of entering into the sale deed and construction agreement could not be accepted. If at all the opposite party had handed over the possession, the complainant has no cause of action or necessity to file a complaint before this commission seeking for delivery of possession. It is also admitted by the opposite party that there was mediation between the complainant and the opposite party. If at all the opposite party had handed over the possession to the complainant they would have produce the handing over certificate in proof of delivery of possession. In the absence of any evidence this commission has to be believe the version of the complainant that still the possession was not handed over to the complainant. As per clause 9 of the construction agreement dated 20.09.2014 the opposite party had undertook to deliver the property within 12 months with grace period of 3 months from the date of agreement. In such circumstances the opposite party in the absence of any proof of delivery of possession to the complainant had committed deficiency in not handing over the possession of the flat till today. Thus we answer the point holding that the opposite party had committed deficiency in service in not handing over the property as per the terms and conditions of the agreement to the complainant.
Point No.3:-
As we have held above that the opposite party had committed deficiency in service in not handing over the possession of the flat we direct the opposite party to hand over the possession within four weeks from the date of receipt of copy of this order. Further we award compensation of Rs.1,50,000/- for the delay caused in handing over the possession as per the agreed clause 20 of the construction agreement. For mental agony and hardship caused to the complainant a sum of Rs.50,000/- is awarded as compensation. We also order Rs.10,000/- towards cost of the proceedings to the complainant.
In the result the complaint is allowed in part directing the opposite party;
To hand over possession of the flat along with allotted car park as found in the brochure and also the completion certificate within four weeks from the date of receipt of copy of this order;
To pay a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for delay in handing over possession as agreed by opposite party in clause 20 of the construction agreement dated 20.11.2014 within six weeks from the date of receipt of copy of this order;
To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;
To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards cost of litigation expenses to the complainant;
Amount in clause (b) if not paid within six weeks from the date of receipt of copy of this order interest at the rate of 9% to be levied on the said amount.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 29th day of November 2022.
Sd/- Sd/-
MEMBER-II PRESIDENT
List of document filed by the complainant:-
Ex.A1 ................ Copy of the schedule property Xerox
Ex.A2 23.10.2014 Sale deed executed by the opposite party in favour of the complainant. Xerox
Ex.A3 20.09.2014 Construction Agreement between the complainant and the opposite party. Xerox
Ex.A4 27.03.2015 Legal notice issued by the complainant to the opposite party. Xerox
Ex.A5 30.05.2016 Reply notice issued by the opposite party. Xerox
Ex.A6 21.04.2016 Legal notice issued by the complainant to the C.M.D.A. Authorities. Xerox
Ex.A7 ................ Copy of Plaint in O.S.No.225/2017 on the file of the Sub-Court, Poonamallee Xerox
Ex.A8 ............ Written statement filed by the complainant in O.S.No.225/2017 on the file of Sub Court, Poonamallee. Xerox
Ex.A9 22.10.2014 Receipt issued by the opposite party for the payment of Rs.6,00,000/-. Xerox
Ex.A10 ............. Conversation between both parties. Xerox
Ex.A11 .............. Pen Drive original
List of documents filed by the opposite party:-
Ex.B1 20.09.2014 Construction Agreement. Xerox
Ex.B2 23.10.2014 Sale Deed for UDS. Xerox
Ex.B3 27.02.2015 Legal notice issed by complainant. Xerox
Ex.B4 12.02.2016 Legal notice issed by complainant. Xerox
Ex.B5 20.05.2016 Reply notice issed by opposit party. Xerox
Ex.B6 20.11.2014 Electricity Bills. Xerox
Ex.B7 21.03.2014 House Photos evidencing completion. Xerox
Ex.B8 ............... Copy of plaint in O.S.No.225/2017 on th file of Sub Court, Poonamallee. Xerox
Ex.B9 .............. Written statement filed by the complainant in O.S.No.225/2017 on the file of Sub Court, Poonamallee. Xerox
Sd/- Sd/-
MEMBER-II PRESIDENT
