Tamil Nadu

StateCommission

CC/30/2018

N.Balasubramanian & other - Complainant(s)

Versus

Vijay Shalini Builders Ltd - Opp.Party(s)

L.J.Krishna Moorthy-Compt

10 Apr 2023

ORDER

                                                                                

                                                          Date of filing 27.12.2017

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE    Hon’ble THIRU. JUSTICE  R. SUBBIAH           ::      PRESIDENT                       

                Thiru.R.VENKATESA PERUMAL                     ::      MEMBER

 

 CC. No. 30/2018

 

                                             DATED THIS THE   10 ^TH  DAY OF APRIL 2023

 

 1.Mr.N.Balasubramanian,

S/o N.Nagarajan,

 

2. K.Sujatha,

W/o N.Balasubramaninan,

Both are residing at

Door No. 17/3, L.H.Nagar,

4^th cross street, Adambakkam,

Chennai 600 088                                             ..Complainants

 

                                                 Vs

 

 

1.M/s Vijay Shanthi Builders Ltd,

Being rep.by Ms.S.Jayanthi as its Authorised Signatory,

No.20/43, Kasturi Rangan Road,

Alwarpet, Chennai 600 018

 

2. Ms.S.Jayanthi,

W/o Mr.K.Sathish,

Power of Attorney Agent and Authorised Signatory,

M/s  Vijayshanthi Builders,

No.3, Blackers Road,  

Anna Salai, Chennai 600 002   

 

3. Thomas P.Joy, Executive Director,

M/s Cybele Industries Ltd, (QFlex cables Ltd),

No. 138, SIDCO Industries Ltd, ,

Ambattur, Chennai 600 098.

 

4. Mr.Chandan Kumar,

Power of Attorney Agent for 3^rd opposite party,

No.3, Blackers Road, Anna Salai,

Chennai 600 002

 

5. Mr. E.Kamalakannan,

S/o Mr.M.Elumalai,

Power of Attorney Agent for 3^rd opposite party,

No.3, Blackers Road, Anna Salai,

Chennai 600 002

 

6. Mr.Magesh, S/o D.Venkatesan,

Power of Attorney Agent for 3^rd opposite party,

No.3, Blackers Road, Anna Salai,

Chennai 600 002                                            ..Opposite parties

 

Counsel for the complainant                    : M/s L.J.Krishna Moorthy

Counsel for the opposite parties 1,2,4,5,6  : M/s R.Parthasarathy

3^rd opposite party                                    : Exparte

 

This complaint having come up for final hearing before us on 10.4.2023 and hearing arguments of bothsides and upon perusing the material records submitted by both sides and this Commission made the following:-

ORDER (open court)

Thiru. R VENKATESAPERUMAL, MEMBER

 

       The present complaint was filed by the complainant praying to direct the opposite party to refund the amount of Rs.46,00,000/- along with 10% interest, Rs.5,00,000/- towards compensation, and Rs.50,000/- towards cost of the complaint.  

 

1.       The case of the complainant is that pursuant to the advertisement given by 1^st and 2^nd opposite parties in respect of their real estate residential project named Boulevard, the complainant had entered into an agreement with them. The third opposite party is an Executive Director of Qflex cables Ltd, who had joined with the 1^st opposite party for development of the property since the land  originally belonged to Qflex Cables Ltd. The above said agreement between the opposite party and the complainant is to sell row house No.7 in phase II for total consideration of Rs.92,00,000/- on 12^th May 2014. The complainants have paid a sum of Rs.46,00,000/- and  the opposite parties had undertaken to build a row house for a total consideration of Rs.92,00,000/- before entering into the agreement. As per clause 8 of the agreement, the promoters agreed to handover the possession of the fully completed row house at the end of December 2014 with the grace time of additional 3 months and in the event of delay by the 1^st opposite party beyond the grace period, the 1^st opposite party had agreed to pay the interest at 10% p.a on the payment received as per clause 9 of the said agreement. As per clause 8 of the agreement the grace period will apply only if the house is delivered within the grace period, if delay extends beyond the grace  period, the interest would be paid from the  original agreed date of delivery i.e., end of December 2014. The complainant had availed financial assistance from various means for the payments as per the schedule mentioned in the agreement. The complainant paid a sum of Rs.46,00,000/- which is almost 50% of the total consideration within the stipulated period as per the payment schedule.The opposite party did not honour the obligation relating to the delivery and handing over the property and was delayed nearly 3 years and finally the flat is yet to be completed. The complainants had sent several emails and met the representatives of the opposite parties many times, but there is no proper response and hence the complainant had sent email to the 1^st opposite party for cancelling the booking for row house No.7 which is due to lethargic and irresponsible attitude of the opposite parties. Hence the complainants sent a legal notice on 20.5.2017 to return the amount with 24% p.a. interest along with Rs.5 lakhs compensation for the mental agony. Since no response from the opposite parties final legal notice was issued to the opposite parties on 25.11.2017 to which untenable reply was received from the opposite parties on 18.12.2017, hence the complainant filed this complaint.

 

2.       The opposite party has filed a written version resisting the case of the complainant stating that the complaint has been wrongly filed against the opposite parties 1,2,,4, 5,6.  It is only Vijay Shanthi Builders Ltd, a Public Limited company who had entered into an agreement. There is no privity of contract between the 3,4,5^th and 6^th opposite parties with the complainant. The complaint is liable to be dismissed against 3^rd, 4^th and 5^th and 6^th opposite parties, even at the inception in as much as no allegations have been made against them. The 1^st opposite party had entered into an agreement for constructing and promoting two phases of residential apartment in a project named Boulevard and to develop phase II row house No.7 of Tower 12. The opposite parties 1 and 2 agreed to construct 2359 sq.ft of built up area for which the complainant had paid Rs.10,00,000/- on 26.4.2014, Rs.9,00,000/- on 21.5.2014 and  Rs.27,00,000/- on 14.5.2014. However the promoters agreement clause 4 clearly indicates that the allottee has to pay a sum of Rs. 69,65,116/- within one month. The complainant sent the termination of booking to opposite parties 1 and 2 on 26.5.2014 and sought for refund of Rs.46,00,000/-. As per the promoter’s agreement, clause 9, the builders agreed to pay interest at 10% p.a. on the amount due and payable by the allottee for any delay caused by the builder in handing over the apartment on or before the date mentioned in clause 8.  However  the allottee can demand payment only if the builder caused delay beyond the grace period of 3 months subject to the allottee having made payments without delay and within the payment schedule as per clause 4.  As per the clause 23 of promoter’s agreement, the opposite parties 1 and 2 are entitled to recover a sum of Rs.1 lakh towards liquidated damages and reimburse the amount paid by the purchaser only upon identifying another allottee for sale. According to the opposite parties, they need not make payment or pay interest on refund of the advance in terms of contract between the parties. The opposite parties, on receipt of legal notice from the complainants, conveyed their readiness to refund the sum of  Rs. 46,00,000/- on installments, subject to deducting Rs.1,00,000/- towards liquidated damages. However the complainants failed to confirm the same. Hence the opposite parties are praying for dismissal of the complaint.

 

3.      In order to prove the case, the complainant, has filed 6 documents along with proof affidavit, and the same have been marked as Ex.A1 to A.6. No document on the side of opposite parties. 

We have heard the learned counsel appearing on both sides and perused the documents. 

 

 

4.       Points for Consideration:

Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties as alleged by the complainant ? if so for what relief the complainant is entitled to?

5.       POINT:

Pursuant to the advertisement given by 1^st and 2^nd opposite parties in respect of their real estate project named Boulevard the complainant had entered into an agreement with them. The above said agreement between the opposite parties and the complainant is to sell row house No.7 in phase II for total consideration of Rs.92,00,000/- on 12^th May 2014. The complainant have paid a sum of Rs.46,00,000/- where the opposite parties had undertaken to build a row house for total consideration of Rs.92,00,000/-. As per clause 8 of the agreement, the promoters agreed to handover the possession of the fully completed row house at the end of December 2014 with the grace time of additional 3 months and in the event of delay by the 1^st opposite party  beyond the grace period, the 1^st opposite party had agreed to pay the interest at 10% p.a on the payment received as per clause 9 of the said agreement. As per clause 8 of the agreement the grace period will apply only if the house is delivered within the grace period, if delay extends beyond the grace period, the interest would be paid from the  original agreed date of delivery i.e., end of December 2014. The complainant had availed financial assistance from various means for the payments as per the schedule mentioned in the agreement. The complainant paid a sum of Rs.46,00,000/- which is almost 50% of the total consideration within the stipulated period as per the payment schedule. But the opposite parties did not honour the obligation relating to the delivery and handing over the property and was delayed nearly 3 years and finally the house is yet to be completed. The complainant had sent email to the 1^st opposite party for cancelling the booking for row house No.7 which is due to lethargic and irresponsible attitude of the opposite parties.

6.       After analysing the evidence on record, we are of the opinion that the opposite parties have committed deficiency in service and unfair trade practice by delaying the construction. Hence the complainant should be compensated. It is evident that the complainant had paid Rs.46,00,000/- to the opposite party. Since we have come to the conclusion that there is a deficiency of service we have ordered to refund Rs. 46,00,000/- with 9% interest from the date of complaint, Rs.3,00,000/- for compensation for mental agony and Rs.25,000/-  as litigation expenses.  

    In the result,

1. The complaint is allowed in part.
2. The opposite party is directed to refund a sum of Rs.46,00,000/- along with interest at the rate of 9% p.a from the date of complaint, Rs.3,00,000/- for compensation for mental agony and Rs.25,000/-  as litigation expenses.       

 

   R  VENKATESAPERUMAL                                                       R SUBBIAH     

                MEMBER                                                                   PRESIDENT

 

 

DOCUMENTS FILED ON THE SIDE OF COMPLAINANT :

Ex.A.1     copy of promoters Agreement dated 12.5.2014

Ex.A.2     copy of Advance payment receipts 3 nos

Ex.A.3     copy of emails dated 13.6.2016

Ex.A.4     copy of legal notice to the opposite parties dated 20.5.2017

Ex.A.5     copy of final legal notice to the ops dated 25.11.2017

Ex.A.6     copy of reply notice by the ops dated 18.12.2017

 

No document of the side of opposite parties

 

R  VENKATESAPERUMAL                                                          R SUBBIAH     

                MEMBER                                                                   PRESIDENT