State Consumer Disputes Redressal Commission
Mrs. Vijaya Padmanaban,No.34/5, Ramya ... vs 1. M/S. Chaitanya Builders And Leasing ... on 20 August, 2013
IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MYLAPORE, CHENNAI 600 004 IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MYLAPORE, CHENNAI 600 004. Present: Honble Thiru. Justice. R. REGUPATHI, PRESIDENT Thiru.J. JAYARAM, JUDICIAL MEMBER. C.C.No.49/2007 MONDAY, THE 20th DAY OF AUGUST 2013. Mrs. Vijaya Padmanaban, No.34/5, Ramya Flats, Ramakrishna Street, T. Nagar, Chennai 600 017 Complainant Vs 1. M/s. Chaitanya Builders and Leasing Pvt.Ltd., Represented by its Managing Director, Kakani Towers, No.15, Khader Nawaz Khan Road, Chennai 600 006. 2. Mr.Ramesh Reddy, Chairman. M/s. Chitanya Builders and Leasing Pvt.Ltd. 3. Mrs. Nirmalarajan, Executive Director, M/s. Chitanya Builders and Leasing Pvt.Ltd.,. 4. M/s. Green Power Realtor P.Ltd., Represented by its Managing Director, No.5, 12th Avenue, Ashok Nagar, Chennai 600 083. 5. M/s. Pawan Green Channel Private Ltd., Represented by its Managing Director, No.5, 12th Avenue, Ashok Nagar, Chennai 600 083. 6. M/s. Raghunath Green Power P. Ltd., Represented by its Managing Director, No.5, 12th Avenue, Ashok Nagar, Chennai 600 083. 7. M/s. Thirumala Green Power Enterprises P. Ltd., Represented by its Managing Director, No.5, 12th Avenue, Ashok Nagar, Chennai 600 083. Opposite parties Counsel for Complainant : Mr. K. Punniyakotti, Advocate. Counsel for Opposite Parties 1 to 3: M/s. Rank Associates. This complaint coming before us for final hearing on 29.04.2013 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following: ORDER
THIRU J. JAYARAM, JUDICIAL MEMBER
1. The case of the complainant is as follows:
The complainant was employed with the first opposite party who is a builder and the 2nd opposite party is the Chairman of the 1st opposite party company and the 3rd opposite party is the Executive Director. The opposite parties 1 to 7 have purchased various extents of land from various parties lying adjacent to each other bearing different survey numbers situate at Rathna Nagar, Ganeshapuram, Mylapore Division, Chennai-18 and combined them for development purpose as single unit in order to achieve maximum benefit out of the said land admeasuring total extent of 43 grounds (1949.5 sqft).
The opposite parties 4 and 7 have executed 6 power of attorneys in favour of the 1st opposite party empowering them to develop the said property by construction of flats and sell the flats/apartments constructed thereon together with undivided shares in the said lands to the perspective purchasers. The complainant was employed with the 1st opposite party as technical manager and during her service in the opposite party company, the complainant made advance payment of Rs.1,01,000/- on 15.12.2004 and booked an apartment in B Block titled Cuckoo in the said project with the 1st opposite party. The 1st opposite party recorded the understanding reached by the letter dated 17.12.2004 confirming the allotment of the flat No.45 in B Block in Rathna Nagar Main Road, Off Cenotaph Road, Chennai admeasuring about 1433 sqft.
Acting upon in the said concluded contract, the complainant made payments as mutually agreed and in part of performance of the said agreement, the complainant with the due approval and consent of the 1st opposite party carried out certain items of works as per her choice and taste and she carried out interiors in the kitchen at expenses of Rs.2,46,023/-. The last payment in the year 2006 made towards costs of the flat was a sum of Rs.10,00,000/- by way of cheque dated 29.11.2006 and the cheque has been duly encashed by the 1st opposite party. During this period, the complainant suffered serious health problems as a result of which she could not continue her job with the 1st opposite party; but the 1st opposite party did not grant leave and so she submitted her resignation letter dated 09.01.2007. Her refusal to join duty with the 1st opposite party led to misunderstanding between the complainant and the 1st opposite party. Thereafter, she received an undated note from the 1st opposite party stating that the sale consideration of the flat was revised from Rs.30,10,601/- to Rs.33,37,201/- and that the balance amount was due and payable by her. The complainant immediately brought it to the notice of the 1st opposite party that the works in the said flat, in part performance of the agreement could be carried out at the complainants costs and as per the choice in the undated note sent by the 1st opposite party.
The 1st opposite party claimed a sum of Rs.33,37,201/- which included Rs.23,402/- and Rs.16,198/- totaling Rs.39,600/- towards service tax and a sum of Rs.16,596/- towards maintenance charges and a sum of Rs.13,830/- towards building corpus fund and no deductions were made in respect of works carried out by the complainant which otherwise costs the opposite parties a sum of Rs.1,71,154/- as per the 1st opposite partys own admission. The complainant had been repeatedly calling upon the 1st opposite party to clarify her various queries and execute the relevant documents in her favour so as to fully and properly convey the title to her in respect of the said flat and on her part she was always ready and willing to perform her contractual obligations and was awaiting clarification from the 1st opposite party as regards additional costs claimed from the complainant by the 1st opposite party and also deductions to be made by the 1st opposite party from the total sale consideration payable as agreed to in respect of the works in the flat done by the complainant and her own costs it otherwise should have been done by the 1st opposite party. On 29.06.2007 she received a letter from the 1st opposite party stating that the flat was allotted to the complainant at less than cost on an understanding of a long-term productive participation in the growth of the company . Actually, the complainant was not given any concession as claimed by the 1st opposite party. Again the complainant was called upon by the 1st opposite party to resume her job with the 1st opposite party; but she was not willing to join the 1st opposite party company again as the consequence of which the 1st opposite party came with allegations that the complainants attitude to her assignments has left the opposite party company distressed and concerned at the inexplicable costs over run, leading to losses exceeding Rs.2 Crores in some project. Along with the above referred letter the 1st opposite party sent a cheque for Rs.24,01,000/- and apart from return of the said cheque unencashed she sent balance sum payable as per her calculations, by way of cheuqe dated 26.06.2007 for Rs.7,34,621/- and another cheque for Rs.30,426/-. Thus entire sale consideration for the flat as per the concluded contract to the 1st opposite party has been paid and completed by the complainant. No other documents were executed between the complainant and the 1st opposite party in view of the clear understanding between her and the 1st opposite party as regards the flat, price payable for the flat and subsequent negotiations as regards the reduction in price owing to interiors done by the complainant. The 1st opposite party returned her cheques for Rs.7,34,621/- and Rs.30,426/- and also the cheque for Rs.24,01,000/-. Hence, the complaint praying for direction to the 1st opposite party as owner and Power Agent of the opposite parties 2 to 5 to execute the sale deed in favour of the complainant and hand over the possession of the residential apartment described in the schedule of property and to pay compensation of Rs.20,00,000/- for deficiency in service, harassment, mental agony and hardship and loss and suffering undergone by the complainant and to pay a sum of Rs.15,000/- per month from the date of this complaint till flat is handed over to the complainant as loss of funds and to pay costs.
2. The 1st opposite party filed version and additional version stating as follows:
The complainant was employed with the 1st opposite party as Senior Manager (Technical) and during the period of her service, the complainant requested the 1st opposite party management to allot her an apartment in the project allotted by them at Chennai-18 and considering her employment she was allotted a flat at price less than the prevailing market rate at that time. The complainant failed and was negligent in adhering to the payment schedule and it was found that on account of complainants insufficient handling of the project during her period of service, the 1st opposite party company had suffered huge loss. No improvement or modification can be carried out in the flat or any material can be brought to the flat without the written consent and approval of the 1st opposite party and except the letter of the allotment and payment schedule there has not been any formalities of the transactions. Since the complainant was working towards unlawfully entering into the flat and taking possession of the same, the 1st opposite party was constrained to file a suit before XV Assistant City Civil Court, Chennai which granted an interim injunction accordingly and subsequently the suit has been decreed as well. The complaint does not fall within the purview and ambit of the Consumer Protection Act and no issue relating to the conveyance of title can be agitated before the Consumer Forum or Consumer Commission. It is true that they (1st opposite party) permitted modification of certain works in the flat without affecting all over arrangements.
3. 17 Documents were filed and marked as Exhibits A1 to A17 on the side of the complainant and 5 documents were filed and marked as Exhibits B1 to B5 on the side of the opposite parties.
4. The points for consideration are:
(1) Whether there is deficiency in service or negligence on the part of the opposite parties as alleged in the complaint ?
(2) If so, to what relief the complainant is entitled?
5. Point No.1:
First, it is represented by the counsel for the 1st opposite party that the complaint is time-barred. As held by the Honble National Commission, reported in I (2011) CPJ 71 (NC), in the case of Mopar Builders and Developers Pvt. Ltd.,
- Vs Unity Co-op Housing Society Ltd., there is continuing cause of action in not handing over possession of the flat in complete shape and so we hold that the complaint is not barred by limitation and the contention of the 1st opposite party in this regard is untenable.
6. It is further contended by the counsel for the 1st opposite party that the complaint will not come within the ambit of the Consumer Protection Act. In view of Sec. 2 (1) (o) of the Consumer Protection Act, law is well settled that all subjects relating to housing construction are within the purview of Consumer Protection Act and the complaint is maintainable before the Consumer Forum/Commission. Therefore, the contention of the 1st opposite party is unsustainable.
7. According to the complainant, cost of flat admeasuring about 1433 sqft is 28,30,175/- apart from Rs.1,00,000/- for one covered car parking and Rs.50,000/- for water, electricity, sewage and approvals and Rs.16,596/- towards maintenance charges for 12 months at Re.1 sqft per month and Rs.13,830/- towards building corpus fund at the rate of Rs.10 per sqft and as such total amount to be paid by the complainant to the 1st opposite party is Rs.30,10,601/-. Ex A2 is the letter sent by the 1st opposite party to the complainant wherein it is acknowledged and accepted by the 1st opposite party that the flat admeasuring 1433 sqft with cost of apartment is Rs.28,30,175/- including facilities for car parking, water cum electricity, sewage and approvals and maintenance charges for 12 months and building corpus fund, the total amount comes to Rs.30,10,601/- as per the concluded contract between the complainant and the 1st opposite party.
8. By the Exhibits A1, A2, A3 series and A14, it is clearly established that the complainant has performed her part of contract by making full payment of Rs.30,10,601/- to the 1st opposite party, as mutually agreed in the initial stage. Therefore, in these circumstances, the failure to complete and hand over possession of the flat to the complainant, amount to deficiency in service on the part of the opposite parties 1 to 5.
9. It is pertinent to note that there is misunderstanding between the complainant and the 1st opposite party on account of the complainants resignation of her job with the 1st opposite party. The allegations levelled by the 1st opposite party against the complainant with regard to the complainants employment with them and subsequent resignation and the happenings during her service are matters extraneous to the points in issue in the complaint and the allegations are irrelevant and not worthy of consideration.
10. In the complaint no record is produced by the opposite parties relating to the civil suit before the Assistant City Civil Court, Chennai and so the contentions regarding the suit are unacceptable.
11. For the aforesaid reasons, we hold that the failure on the part of the opposite parties to hand over possession of the flat to the complainant in complete shape in time amounts to deficiency in service on the part of the opposite parties and the point is answered accordingly.
12. As evidenced by Ex A1, a sum of Rs.1,01,000/- has been paid by the complainant to the 1st opposite party and as per Ex A3 series Rs.2 Lac, plus Rs. 2 Lac, plus Rs. 2 Lac, plus Rs.3 Lac, plus Rs.4 Lac and plus Rs.10 Lac have been paid to the 1st opposite party by the complainant on various dates, and the total amount paid is Rs.24,01,000/-. As per the revised rate of sale consideration, the complainant has to pay a sum of Rs. 33,37,201/- which is accepted by the complainant in the memo filed before the Commission, and as such the balance amount to be paid by the complainant to the 1st opposite party is Rs.9,36,201/-. The complainant has deposited two cheques, one for Rs.9,05,775/- and another cheque for Rs.30,426/-, for a total sum of Rs.9,36,201/-.
13. Point No.2:
No relief is sought in the complaint against the opposite parties 6 and 7. Therefore, the complaint is liable to be dismissed as against the opposite parties 6 and
7.
14. In the result, the complaint is allowed in part directing the complainant to collect the two cheques from the Commission and forward the cheques to the 1st opposite party or to pay Rs.9,36,201/- in cash to the 1st opposite party within a period of two weeks from the date of receipt of copy of this order and the opposite parties 1 to 5 are directed to execute the sale deed in favour of the complainant and to hand over possession of the flat to the complainant and to pay a sum of Rs.3,00,000/- as compensation for deficiency in service, harassment, hardship, and loss and sufferings undergone by the complainant and to pay costs of Rs.5000/-. Time for compliance: one month from the date of receipt of balance amount of Rs.9.36,201/- by the 1st opposite party from the complainant. The complaint as against the opposite parties 6 and 7 is dismissed.
J. JAYARAM, R. REGUPATHI, JUDICIAL MEMBER PRESIDENT Exhibits on the complainants side.
Ex A1 15.12.2004 Advance Receipt for Rs.1,01,000/- issued by the 1st opposite party Ex A2 17.12.2004 Allotment letter with payment schedule by the 1st opposite party Ex A3 30.11.2006 Series of Receipts issued by 1st OP showing receipts of instalment amounts Ex A4 30.08.2005 & Plan approved by 1st OP for carrying out interiors by the 30.01.2006 complainant Ex A5 -----
Summary details with amount and rate for carrying out flooring, skirting and wall tiles and other accessory works.
Ex A6 30.12.2006 Details of the interiors carried out in the kitchen at an expenses of Rs.24,445/-.
Ex A7 ------- Estimation with bill for purchase of marble and granite slabs for flooring Ex A8 ------- Quotation for interiors from Hakasaa Wood Tech Ex A9 ------ Series are letters by the 1st opposite party showing progress of work in all blocks at the said project Ex A10 ------
Communication showing total revised sale consideration receivable by 1st opposite party inclusive of registration and maintenance charges as well as service tax Ex A11 29.06.2007 Letter from 1st opposite party to the complainant Ex A12 02.07.2007 Letter from complainant to the 1st opposite party by way of reply Ex A13 26.06.2007 Copy of Cheque for Rs.7,34,621/- being balance sale consideration Ex A14 26.06.2007 Copy of cheque for Rs.30,426/-
towards Nest Maintenance Account Ex A15 09.07.2007 Letter by 1st opposite party to complainant refunding Rs.24,01,000/- by way of DD and cancelling allotment in favour of complainant Ex A16 07.09.2007 Letter by 1st opposite party to the complainant Ex A17 22.09.2007 Reply by complainant to the 1st opposite party Exhibits on the side of the Opposite parties:
Ex B1 Payment details, Memorandum of Agreement, Sale Deed of the purchaser Mr. Sadasivam at the rate of Rs.2350/ per sq.ft.
Ex B2 Payment details, Memorandum of Agreement, Sale Deed of the purchaser, Mr. Ramakrishnan at the rate of Rs.2650/- per sqare feet.
Ex B3 Payment details, Memorandum of Agreement, sale Deed of the purchaser Mr. Poorani Suresh at the rate of Rs.2650/- per square feet.
Ex B4 Payment details, Memorandum of Agreement, Sale Deed of the purchaser Mr. Sunil Subramaniam at the rate of Rs.2500/- per sq ft Ex B5 Payment details, Memorandum of Agreement, Sale Deed of the purchaser Mr. Chandrasekhar at the rate of Rs.2650/- per sq ft J. JAYARAM, R. REGUPATHI, JUDICIAL MEMBER PRESIDENT