Tamil Nadu

South Chennai

293/2000

S.Ganesan - Complainant(s)

Versus

Vijayshanthi Builders Ltd - Opp.Party(s)

T.S.R.Venkataramanan

28 Sep 2016

ORDER

   Date of Filing :   04.04.2000

                                                                      Date of Order :   28.09.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

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

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

                                      C.C.NO.293/2000

WEDNESDAY THIS  28^TH  DAY OF SEPTEMBER 2016

 

S. Ganesan,

F-9, Vijayashanthi Apartments,

38, Perumal Koil Cross Street,

Kottur,

Chennai 600 085.                                      ..Complainant

 

                                         ..Vs..

 

1. Vijayashanthi Builders Ltd.,

3-Blackers Road,

Chennai 600 002,

Through its Joint Managing Director,

Mr.Suresh Kumar Jain.

 

2. Ms. Shantha,

General Manager (Sales),

Vijayashanthi Builders Ltd.,

3-Blackers Road,

Chennai 600 002.                                  ..Opposite parties.    

 

 

For the Complainant         :   Party in person.

For the opposite parties    :   M/s. Rahul Balaji         

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite parties to evict the encroachment in the contracted area of construction, immediately provide metro water connection, to arrange to change the current connection in the name of the individual flat owners and to arrange to get the CMDA approved for the building  etc. and also to pay a sum of Rs.25,000/- with interest and to pay a sum of Rs.19,638/- and Rs.50,000/- for mental agony and stress to the complainant.

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that he has purchased the complaint mentioned flat from the opposite parties for Rs.11,31,315/-.   The said flat after construction was handed over by the opposite parties to the complainant by handing over the key for flat on 14.04.1999 and the flat was  occupied by the complainant on 28.05.1999.   The complainant further submit that the opposite parties have not handed over the possession of the completed flat in month of November 1998, but delivered in completed flat only in the month of April 1999, as such, the opposite party has committed unwarranted delay in completing the construction of the flat which caused hardship to the complainant and alleged that such act of the opposite parties is a deficiency of service.    Further the compliant states that the flat handed over by the opposite parties is in complete.  Further the water facilities have not been properly provided and the electricity connection for the individual flats has not been obtained by the complainant, whereas the separate electricity card was only issued in the month of March 2000.   Due to the same for the said occasion  the electricity was supplied for the individual flats from the single electric connection the charges improperly claimed and paid by the complainant which are all caused due to the deficiency of service on the part of the opposite parties.   Further the complainant also states that  for the construction of the adjacent apartment the opposite parties have taking electricity from the  common E.B. connection for the apartment in which the complainant flat is situated, as such the opposite parties is doing energy theft,  without any authorization of the flat owners and  un authorized construction with deviation from the approved plan by CMDA which causes inherence to the complainant to enjoy his flat.   The opposite parties has dumped the wastage of building material in the common places and common path way is not properly demarked and provided for car parking and access to the flats. 

2.     Further the complainant also submit that one Mamundi has encroached some portion of the common space, in the said property for which the opposite parties had given a indemnity bond to the complainant.  The complainant and other occupants are finding it difficult to ingress and egress into the flats.  The complainant is unable to take his vehicles near his flats due to the obstruction and regarding deficiency  in construction of the common amenities, such as water tank, etc..    The complainant also contended that so made  an excess claim of Rs.25,000/- providing details which are contrary to the sales and purchase agreement from the wife of the complainant, when he was away in a foreign tour,.  The complainant is entitled for the refund of Rs.25,000/- with interest    As such the act of the opposite parties  amounts to deficiency in service which caused mental agony and hardship to the complainant.    As such the complainant has sought for  to evict encroachment in the contracted area of construction, immediately provide metro water connection, to arrange to change the current connection in the name of the individual flat owners and to arrange to get the CMDA approved for the building  etc. and also to pay a sum of Rs.25,000/- with interest and to pay a sum of Rs.19,638/- and Rs.50,000/- for mental agony and stress to the complainant.    Hence the complaint.   

Written Version of opposite parties is  in briefly as follows:

3.     The opposite parties denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The opposite parties submit that as per the terms of the agreement the promoter viz. 1^st opposite party was to complete the construction within 18-months from the date of agreement.   The above period is subject to the building work not being delayed due to force majeure or due to shortage of water or commodity like steel, cement and other building material.   Further the opposite parties states that the possession receipt was given to the builder herein.  As per the terms of the contract the possession was to be given by November 1998, even if assuming without admitting that the time was the essence of the contract. But the last payment given in the own admission of the complainant was made on 12.4.1999.  Therefore as per the terms of the contract the possession was handed over within one month from the date of receipt of last installment and therefore the objection raised by the complainant that there was a deficiency in service is liable to be rejected.   It is not true to suggest that the construction was contrary to the agreement entered into.  The construction was only on the basis of the approved plan.   Subsequently individual sub-meters were installed and individual electricity supply was given form the month of October 1999.  Then separate cards were issued by 7.3.2000.   The above referred Mamundi is not an encroacher as alleged and he has a valid title to the land in his possession.   There is no nexus between Mamundi and the opposite parties and the allegation made in the complaint is an absolute myth.   It is submitted that the Metro water connection is subject to the vagaries of the Metro Water Board.  The water supply to the flats are through the borewells and the applications have been made to the water board to secure connection to the housing scheme.   The opposite parties cannot be faulted and the delay in obtaining water connection is solely due to bureaucratic redtapism.  

4.     Moreover the opposite parties submit that there is free space available on all the four sides of the building and there was no agreement that free space would be provided as per Vastsu Sastra.  The above allegation is a blatant falsehood.  As per the terms of the agreement, undivided share mentioned in Schedul-A of the Sale Deed dated 9.5.2000 was executed in favour of the complainant and after completion of the project as per the agreed plan, the opposite parties were free to deal with the rest of the lands available.    A sum of Rs.19,638/- which is collected as an unexpected statutory charges was appropriate towards the sales tax liability payable to the Government.   The complainant is not entitled to refund of contingency deposit.    There was no excess claim of Rs.25,000/- as alleged in the complaint, as per the agreement the complainant is liable to pay a sum of Rs.20,000/- to MES, Rs.20,000/- to CMWSSB, Rs.10,000/- to Metrowater charges.    Therefore there is no excess billing as alleged.   The amount collected from the complainant have been suitably appropriated and receipts have been issued to the above effect.   Therefore there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

5.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A7 were marked on the side of the complainant.   Proof affidavit of opposite parties filed and Ex.B1 and Ex.B2 were  marked on  the side of the  opposite parties.  

6.      The points that arise for consideration are as follows:-

1.   Whether the opposite parties have committed  deficiency of

 service as alleged in the complaint?

 

2.   Whether the complainant is  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

 

7.    POINTS 1 and 2 : 

          Perused the complaint filed by the complainant, written version filed by the opposite parties   and the proof affidavit filed by complainant and  opposite parties the documents Ex.A1 to Ex.A7 filed on the side of the complainant and Ex.B1 and Ex.B2 filed on the side of the opposite parties and Interim report of the Advocate Commission i.e Ex.C1,  considered the arguments of the complainant and the  learned  counsel appearing for the   opposite parties.

8.     There is no dispute that the complainant has purchased the complaint mentioned flat from the opposite parties for Rs.11,31,315/-.  The promoters agreement dated 09.05.1997  as Ex.A1 and the payment receipts  given by the opposite parties to the complainant Ex.A3 series are proves the same.  The said flat after construction was handed over by the opposite party to the complainant by handing over the key for flat on 14.04.1999 and the flat was  occupied by the complainant on 28.05.1999.

9.     The complainant has raised grievance that the opposite parties have not handed over the possession of the completed flat in month of November 1998, but delivered in completed flat only in the month of April 1999, as such, the opposite party has committed unwarranted delay in completing the construction of the flat which caused hardship to the complainant and alleged that such act of the opposite parties is a deficiency of service.  However as contended by the opposite parties, though there is a  condition mentioned in the agreement Ex.A1 that within 18 months from the date of agreement, the completed construction flat has to be handed over to the complainant, the above period  is subject to the building work not being delayed due to force majeure or due  to short age of water or commodity like steel, cement and other building materials or due to delay in getting electrical, sewerage and water conditions, the above agreement is further subject to a caveat that the possession would be handed over within one month after such completion or after receipt  of entire dues whichever is later.   Further it is also proved by the payment receipt dated 12.04.1999, filed in the series of Ex.A4, that  a sum of Rs.2,56,953/- was paid by the complainant to the opposite party as a final payment towards the said purchase of flat by the complainant.  On perusal of the Ex.A4 series the payment receipts and the dates mentioned thereon it proves that the complainant has not paid the amount to the opposite parties as per the payment schedule in the Ex.A1.  Further it is also pertinent to mention that there is no specific condition is mentioned in the said agreement for the delay in handing over the possession of the flat by the opposite parties to the complainant.  Therefore as contended by the opposite parties that in respect of completing the construction of the flat and handing over the same to the complainant, the time is not an essence of the contract is acceptable.  Therefore we are of the opinion that the complainant cannot attribute the  deficiency of service  against the opposite parties for the delay in completing the construction and handing over the possession of the flat   to the complainant, since,  the last payment was paid by the complainant only on 12.04.1999.

10.    Further it is also contended by the complainant that the flat handed over by the opposite parties is in complete.  But the opposite parties has denied the said contention and stated that the additional work of construction requested   by the complainant alone was completed after handing over of the possession of the flat and also relied upon the document of letter filed by the opposite party Ex.B2, i.e. the estimation for extra / alternative works.  This has not been specifically denied by the complainant in his affidavit.  Further there is no proof of evidence on the side of complainant, for the said contention that the flat was handed over by the opposite parties in the month of April / May 1999 with incomplete construction.  Therefore we are of the opinion that the complainant has failed to prove the said allegation, as such the complainant is not entitled for any relief in this regard, against the opposite parties.

11.    Further the complainant has raised grievance that  the water facilities have not been properly provided and the electricity connection for the individual flats have not been obtained by the complainant, whereas the separate electricity card was only issued in the month of March 2000, due to the same for the said occasion   the electricity  was supplied for the individual flats from the single electric connection the charges improperly claimed and paid by the complainant which are all caused due to the deficiency of service on the part of the opposite parties.  Whereas the opposite parties have contended that getting electricity connection was delayed due to the TNEB department, for which the opposite parties cannot be find fault with.  Since for a short period immediately after completion of the project, the electricity for the individual flat was supplied  through a common meter and with the consent of the flat owners on the basis of their utility of the electricity the charges were divided and collected from the individual flat owners with regard to this,  no other flat owners have ever raised any grievance as raised by the complainant, as such the allegation are unsustainable, are to be rejected.  Further in respect of the grievance made by the complainant regarding in no proper water supply provided by the opposite parties, the opposite parties  has denied the allegations  and stated that water supply was  provided through bore well  whereas,  regarding the metro water supply  though it was been applied to the concern authorities water board, by spending for which the opposite parties cannot be find fault.  Contrary to this the complainant has not produced any evidence of proof for non availability of water supply through the bore well in the said apartments, even such would be in position, as contended by the opposite parties the other flat owners would have raised such grievance for which there is no evidence on the side of complainant. Further it is also acceptable that, for the  non supply of metro water in the said  apartment though it has been applied for the water board have not given connection for the

the individual flat for the metro water supply, for which the opposite parties cannot be find fault, since, it has not been denied by the complainant  in his affidavit. 

12.    Further the complainant has raised grievance even for the construction of the adjacent apartment the opposite parties have taking electricity from the  common E.B. connection for the apartment in which the complainant flat is situated, as such the opposite parties is doing energy theft,  without any consent /  authorization of the flat owners.  Since, this has been appears to be serious allegation and denied by the opposite parties, in order to prove the said allegation the complainant has not produced any proof of evidence in this proceedings before this forum.  Therefore the said allegation cannot be said to be proved by the complainant. 

13.    Further the complainant has raised grievance that un authorized construction with deviation from the approved plan by CMDA which causes inherence to the complainant to enjoy his flat.  As a defense the opposite party has mentioned that there were some minor deviations in the constructions from the approved plan, in this regard already there were provisions mentioned in the agreement permitting the opposite parties in the event of the necessity and the opposite parties have also applied to the CMDA authorities for regularization which are pending.  On perusal of the Ex.A1 agreement  in clause 3 there is a specific provision, permitting  the opposite parties to do some minor  constructions deviating from the approved plan, but substantial  altering the external dimensions of the flat for the allottee / complainant.  Therefore though the complainant has mentioned that, there were some deviation of construction from the approved plan, the particulars of the said deviation or un authorized construction were not mentioned  and necessary proof for the same were not produced on the side of complainant.  Further it is not the case of the complainant, the said deviations are contrary to the above said clause-3 of the agreement affecting the external dimension of the flat of the complainant.  Therefore, we are of the considered view that, the allegation in this regard made by the complainant are not sustainable as not valid and no relief in this respect the complainant is entitled too. 

14.    The complainant also raised grievances such as the opposite parties has dumped the wastage of building material in the common places and common path way is not properly demarked and provided for car parking and access to the flats.  As contended by the opposite parties, though there were waste materials were dumped in common places during the progress of completion of the project they were afterwards removed and the pathways for the flats and apartments were provided as mentioned in the approved plan are acceptable, since these specific averments were made by the opposite parties in their written version and their affidavit.  It is neither specifically denied nor disproved by the complainant by producing necessary evidence on the side of complainant.

15.    Further the complainant has also raised the grievance  that one  Mamundi  has encroached some portion of the common space, in the said property for which the opposite parties had given a indemnity bond to the complainant and to the other flat purchasers, whereas the said encroachment has not been removed so far, as such, the complainant claims the removal of said encroachment against the opposite parties.  Whereas the opposite parties admitting such fact that, at the time of starting of the project it was found that the said Mamundi was in possession of the said property, subsequently in a court proceedings the said Mamundi has proved that he has got title for the said property, the property was also purchased by the opposite parties, as such there is  no encroachment as alleged by the complainant and the relief sought for in this regard is not sustainable, but on going through the Ex.A2  the indemnity bond said to have been executed in favour of the complainant, it is mentioned that the portion of the alleged property said to have been encroachment by the said Mamundi is of the portion of the  project property.  However the indemnity bond  is reads as follows:   

“That  in the event  of any dispute over the property raised by the above said Mamundi and S.P. Durai resulting in damage to the  property of the purchaser the promoter hereby indemnify the loss caused by repaying the amounts received from the allottees”

Therefore in order to claim any relief by the complainant on the basis of the said indemnity bond, the complainant must have produced the sale deed in favour of the complainant regarding the purchase of UDS of land for the said  purchase of the  flat  and it also requires other necessary relevant evidence for the proof of the value of the said property and also required the all the flat purchaser in respect of the said project as necessary parties to decide the said issue.  In such circumstances this is not the proper forum to raise such issue and get relief, but the proper forum will be the Civil Court.  Therefore, we are of the considered view that the complainant cannot be given any relief in this regard but he will be given liberty to approach the Civil Court to get his grievance worked out by filing  proper Civil case complying all requirements.

16.    The complainant has raised some of the other  grievances regarding deficiency  in construction of the common amenities, such as water tank, etc., whereas since the said allegations were categorically denied by the opposite parties in their written version as well as in the affidavit, it is the burden on the side of complainant by producing the documents to prove the same.  But there is no such proof of evidence produced on the side of complainant.  It is also pertinent to mention that though the complainant has filed petition for appointment of advocate commissioner to inspect and note down the physical features of the said flat and common amenities thereon  with the help of the qualified Civil engineer and the same was allowed and the advocate commissioner was appointed, the advocate commissioner has filed preliminary report Ex.C1, stating that the complainant has not co-operated for complying the warrant mentioned inspection and also not provided qualified Civil Engineer.  On the basis of the report this forum also closed the said proceedings as the complainant has not taken any further steps.  Therefore, we are of the considered view for the above said allegations made by the complainant in respect of defect in construction and several omission and commissions by the opposite parties in the construction of the said flat of the complaint and the common amenities thereon, the complainant has not even produced necessary document of proof or also not taken any proper steps in establishing the said  allegations, even by taking the advocate commissioner  to note down the said physical features and produce report before this forum.

17.    Further the complainant has raised grievance that  a sum of Rs.25,000/- was collected by the opposite parties on 12^th April 1999, through from his wife, as excess amount and also collected a sum of Rs.19,638/- as excess  in overall amount paid for the purchase of the flat from the complainant.  The complainant claims that the said amount are liable to be refunded by the opposite parties to the complainant with interest, whereas the opposite parties have contended that the sum of Rs.19,638/- which was collected as an un expected statuary charges was appropriate towards the sale tax liability payable to the Government. Letters dated 19.09.1999, 25.10.1999 and 03.11.1999 have been suitably replied by the letter dated 13.12.1999 in this regard.  Further the opposite parties has stated that the revised bill dated 03.04.1999 raised on the complainant, as per the bill a sum of Rs.2,66,963/- was due and the same was paid by 2 cheques dated  12.04.1999, there was no excess claim of Rs.25,000/- as alleged in the complaint.  As per the agreement, the complainant is liable to pay a sum of Rs.20,000/- to MES, Rs.20,000/- to CMWSSB, Rs.10,000/- to Metro water charges.  The said revised final bill includes the above said amount and therefore  there is no excess billing as alleged.  As such, the opposite parties has contended that the complainant is not entitled for any  refund of amount  with interest as prayed for.  Though the opposite parties has not produced the above mentioned letters in support of the said contention, on perusal of the Ex.A1 agreement there were provisions / conditions  that apart from the total construction cost of Rs.11,31,315/-, the complainant / allottee, as mentioned in clause 8 of the agreement has agreed to pay  the cost of common main electric service, expenditure towards EB connection, MES connection CMWSSB deposits and charges, sale tax and other taxes levies,  fees, etc., if any the stamp fees, registration and legal charges for the conveyance of the said individual share in the schedule A Land water charges and maintenance charges for 3 months as determined by the promoter, along with the last of the offer installment payable by the allottee (Complainant).  Therefore we are of the considered view that the alleged amount said to have been paid by the  complainant to the opposite parties are would have been paid towards the above said excess payments, agreed to be payable by the complainant as per the agreement.  Therefore we are of the considered view that the claim of the complainant for refund of the said amount against opposite parties are not sustainable and the complainant is not entitled for the said relief.

18.    Therefore as discussed above, in detail, we are of the considered view that the deficiency of service attributed by the complainant in the complaint against the opposite parties are not proved, as such the complainant is not entitled for any relief sought for in the complaint and the complaint is liable to be dismissed.  Considering the facts and circumstances of the case, the parties are ordered to bear their own costs.  Accordingly the points 1 & 2  are answered.

In the result, the complaint is dismissed.   No costs.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  28^th    day  of  September   2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s Side documents :

Ex.A1-  9.5.1997       - Copy of agreement of sale of flats.

Ex.A2- 7.8.1998        - Copy of indemnity bond.

Ex.A3-                              - Copy of receipts issued by the opposite parties.

 

Ex.A4-                    - Copy of letters & Telegrams written by the complainant

                               To the opposite party.

 

Ex.A5- 16.3.2000      - Copy of bills for the repair of damaged TV and CD Player.

 

Ex.A6-13.4.1999       - Copy of details of additional work done by the opposite party

                               And the cost thereof and work not done by the opposite party and

                               deduction thereof.

 

Ex.A7- 17.3.1997      - Copy of legal notice.  

 

Opposite parties’ side documents: - 

 

Ex.B1- 13.12.1999     - Copy of letter from the opposite party to the complainant.

 

Ex.B2-                    -        - Copy of Revised Regularization scheme working sheet from the

                               Chennai Metro Politan Development Authority, Advice slip from

                               Madras Electricity Distribution and Extra work details.

 

Court side documents : -

 

Ex.C1 -          -        - Interim report of the Advocate Commissioner.

 

 

 MEMBER-I                        MEMBER-II                             PRESIDENT.