State Consumer Disputes Redressal Commission
Nallusamy S/O Ramasamy vs Mr. V. Bakthavatchalam S/O Vedantham ... on 22 August, 2023
1
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION AT PUDUCHERRY
Dated this the 22nd day of August 2023
Consumer Complaint No.04/2016
Nallusamy, S/o.Ramasamy,
No..T-1, Block-II,
Lotus Apartment, Ganapathy Nagar,
Muthialpet, Puducherry-3. ... Complainant
Vs
1.V. Bakthavatchalam, S/o.Vedantham
No.35, Perumal Kovil Street,
Puducherry-1,
Rep. by his power of Attorney
Ezhumalai, S/o.V.Bakthavachalam,
No.9, Ganapathy Nagar Main Road,
Muthialpet, Puducherry-605 003.
2. Saraswathy, W/o.A.S.Munisamy,
New No.13, Old No.65,
Kurinji Street, V.V.P. Nagar
(C-Lane), Thattanchavady,
Puducherry-9. .. Opposite Parties
(Complaint amended as per order in M.A.No.01/2023 dated 23.01.2023)
BEFORE:
HON'BLE THIRU JUSTICE R. PONGIAPPAN
PRESIDENT
DR.S.SUNDARAVADIVELU,
MEMBER
TMT.S. OUMASANGUERY,
MEMBER
2
FOR THE COMPLAINANT
Thiru.H.D. Kumaravalu, Advocate
FOR THE OPPOSITE PARTIES 1 and 2:
Tvl.A.Latchoumicandane and R.Ponnarasan, Advocates.
O R D E R
(By Hon'ble Justice Thiru.R.Pongiappan) This complaint has been filed under section 11 and 12 of the Consumer Protection Act, 1986 praying to direct the opposite parties
(i) To return a sum of Rs.40 lakhs alongwith interest at the rate of 24% per annum,
(ii) To pay a compensation of Rs.10 lakhs for the deficiency in service on the part of the opposite parties and to pay a sum of Rs.5 lakhs for the mental agony and frustration suffered by the complainant.
(iii) To pay a sum of Rs.20 lakhs for the expenditures incurred by the complainant by way of interest to the bank loan processing and travelling expenses.
2. Case of the complainant is as follows:
The second opposite party is the absolute owner of complaint mentioned 'A' schedule property. The second opposite party had appointed the first opposite party as her authorized power agent by way of General Power of Attorney dated 3 15.06.2011 for the construction of building in the complaint mentioned 'A' schedule property. Further, a Joint Venture contract was entered between the first and second opposite parties, wherein it was agreed by the first opposite party to construct flats in the complaint mentioned 'A' schedule property and the same was registered on 15.06.2011 vide registration No.2587/2011 on the file of the Sub-
Registrar, Puducherry. On 15.07.2012 an agreement for sale of undivided land was entered between the first opposite party and the complainant i.e. the 'B' schedule. Further, on the same day, the construction agreement was entered between the first opposite party and the complainant, wherein it was agreed by the first opposite party to construct and allot a residential apartment in 'Lotus Maruthi' bearing No.S -1.
3. For the said flat, the total sale consideration was fixed as Rs.43 lakhs, out of which the complainant has paid a sum of Rs.40 lakhs on the same day. The receipt of sale consideration was duly acknowledged by the first opposite party. The sale consideration amount was paid by the complainant by way of borrowing loans from the banks and in this regard he is paying interest without any default. The performance of the sale period was agreed for a period of one year. The first opposite party had not fulfilled his part of contract i.e. completing the flat within the stipulated period. The opposite party has failed in his duty in handing over the flats even after the lapse of two years. On 27.08.2014, the complainant issued a 4 notice to the first opposite party and even after receipt of the same, the first opposite party had neither replied nor handed over the flats. Hence, the complainant again sent a letter dated 12.09.2014 requesting to handover the flats within the period of 30 days. On 24.09.2014, the first opposite party gave a reply letter stating that "I am always ready and willing to execute the sale of the land and flat to you and handover possession thereof to you if you remit the balance amount of Rs.3 lakhs and come forward to finalize the sale by producing appropriate stamp and registration" but there is not even a single whisper or word about completion and handover of flat.
4. Again on 28.10.2014, the complainant issued a letter to the first opposite party, wherein he requested the first opposite party to show necessary documents alongwith occupancy certificate at the earliest. Further, the complainant repeatedly has sent communications to the first opposite party for confirming the date of handing over the flat and fix date for registration. In this regard the first opposite party is particular in demanding the complainant to pay the balance sale consideration. The complainant waited for months together and on 12.08.2015 and 30.08.2015, the complainant again issued a letter requesting to refund the advance amount, within one week of receipt of this reminder letter, i.e. the amount of Rs.40 lakhs with interest at 24% per annum from the date of payment. In this regard, there is no positive reply from the opposite party till date. 5
5. The first opposite party have miserably failed to complete the mandatory requirements of the bye laws of Puducherry Planning Authority. Whileso compelling the complainant to come for registration and occupy the flat without occupancy certificate is highly illegal and unwarranted act done by the first opposite party with the dishonest intention of handing over of the flat to the complainant is much less an act of cheating the complainant.
6. The complainant also approached the planning authority to inspect the complaint mentioned property for further action. The complainant is not inclined to receive the flats which has been constructed as against the norms of Puducherry Planning authority and hence claimed the refund of advance amount as per the agreement stated above. In this regard, the complainant issued a legal notice to both the opposite parties on 28.01.2016 calling upon the opposite parties to refund the amount which has been paid as part of sale consideration along with Rs.20 lakhs as compensation towards mental agony suffered by him. The first opposite party had not received the legal notice eventhough intimation was given by the postal authority. Hence, the complaint is filed before this Commission for the reliefs stated supra.
6Following are the averments narrated in the reply version filed by the first opposite party:
7. The first opposite party is the builder and the second opposite party is the owner of complaint mentioned 'A" schedule property. The second opposite party is interested in construction of multistoried apartments over the an area of 4123sq.ft. The scheme of project included construction of nine ownership apartments in three floors with the slit floor at the base being exclusively for parking purpose. The construction was executed under a joint promotion agreement executed with the second opposite party on 15.06.2011. All the nine allottees acknowledged in the agreement that they were provided all information and clarification as required by each allottee and each allottee had relied on his or her own judgment and investigation while entering into the said agreement. The salient features of the said agreement are as follows:
(i) Each allottee will be conveyed 1/9th undivided share and interest in the 'A' schedule property under the said agreement.
(ii) The promoter shall not incur any liability in the event of force majeure events.
(iii) The allottee will forfeit his right to get delivery of the apartment if the payments under the said agreement were not made within the time prescribed.7
(iv) The consideration of one residential apartment having extent 1250sq.feet will be Rs.38,00,000/- (Rupees thirty eight lakhs only).
(v) The allottee shall be liable to pay to the promoter interest at 24% per annum on amounts which are overdue without prejudice to the right of the promoter to cancel the contract by giving notice of fifteen days.
Thereafter the consequences in clause 8 would follow.
(vi) The certificate by the promoter that the building is complete is final and binding on the allottees.
(vii) The said agreement constitutes the entire understanding and shall not be varied or altered except with the mutual consent of the parties.
(viii) The name of the building will always be Lotus Maruthi Apartment.
(ix) The specification for construction were spelt out in Schedule "C" to the agreement.
8. Alongwith the said agreement, there was also an agreement for the sale of undivided interest in the 'A' schedule land under which it was agreed that the allottee shall purchase undivided interest in the A schedule land at a cost of Rs.5,00,000/- (Rupees five lakhs only) subject to certain conditions. The complainant is one of the allottee of Lotus Maruthi Apartment. Except the complainant other eight allottees have signified their concurrence to the construction agreement and also to the agreement for the sale of undivided interest 8 in the land. As far as the complainant is concerned, the flat allotted to him is ready for being handed over as early as on 05.03.2015 and the complainant was in default in balance payment of Rs.3 lakhs of the total sale consideration. When the first opposite party insisted on signing the sale deed on payment of balance sale consideration, the complainant was prevaricating by sending various letters finding fault in one way or other. The flat was ready in March 2015 and this was duly intimated to the complainant orally on 05.03.2015. From 27.10.2015, the complainant started insisting on production of occupancy certificate or returning of the amount paid by the complainant with interest at 24% per annum. The opposite party was insisted to produce occupancy certificate by the complainant to take over the flats.
9. It was not a condition in the agreement to make production of occupancy certificate as a condition precedent for completion of the contract. Though the opposite party has applied for issuance of occupancy certificate before the Town Planning authority, they were very reluctant in giving the same as the same is not insisted in all cases for reasons best known to the official machinery. In any event, the first opposite party has completed the construction and out of the nine flats all the flats except that of the complainant have been handed over and occupied by the respective allottees with full satisfaction. The complainant has not come forwarded to take over the flats stating the reasons that occupancy certificate has 9 not been issued by the Town Planning Authority. The opposite party applied for occupancy certificate by letter dated 21.11.2016 which is under the scrutiny of the authorities concerned. In the meantime, the complainant has filed the present complaint before this Commission. In otherwise, the conditions stipulated in the bye-laws have been scrupulously fulfilled. It is not the case of the complainant that the flat has been constructed violating building bye laws. The building has been completed in all respects according to approved plan and all the facilities for convenient occupation thereof have been provided. There is no merit in the complaint. Hence, first opposite party prays to dismiss the complaint.
10. The second opposite party remained exparte.
11. In order to prove the case, on the side of the complainant, the complainant examined himself as CW.1 and marked 24 documents as Exs.C1 to C24. Through Additional proof affidavit, Exs.C27 to C48 were marked, further, Thiru.M.Muruganandam, Town Planning Assistant, Puducherry Planning Authority was examined as CW.2 and through him Exs.C25 & C26, Ex.R1 and Exs.X1 to X7 were marked. More than that one Annamalai, Sub Inspector of Survey has been examined on the side of the complainant and 4 documents marked as Ex.X8 to X11 through him. On the side of the first opposite party, Ezhumalai, the power of attorney of the first opposite party was examined as RW.1 and Exs.R2 to R14 marked through him.
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12. After considering the pleadings set out on either side, the following issues were framed for settling the disputes.
1. Whether the complaint is a consumer under Consumer Protection Act?
2. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties?
3. Whether the complainant is entitled to get back the part sale consideration paid to the opposite parties?
4. Whether the complainant is entitled to receive compensation from the opposite parties?
5. To what other relief, the complainant is entitled? Issue No.1:
13. Admittedly, through Ex.C7, the Memorandum of Agreement for construction dated 15.07.2012, the complainant herein entered into an agreement with the first opposite party for the purpose of construction of flat, i.e Flat No.S1, Lotus Maruthi Apartment situated in R.S.No.128/7pt, Cadastre No.100, 100Bis, Patta No.812, Puducherry Revenue Village within the limit of Puducherry Municipality.
14. According to the said agreement, the total cost of the building and undivided share in the land is fixed as Rs.43 lakhs. Out of which, the complainant has paid Rs.40 lakhs so far. Hence, in view of the above, the complainant herein becomes 11 the buyer of the flat from the opposite parties. In the said situation, the present complaint has been filed by the complainant as against the opposite parties alleging that after receipt of advance amount, the opposite parties failed to handover the flat as agreed within the stipulated time without any encumbrance. It is further alleged on the side of the complainant that occupancy certificate has not been obtained. In this connection, in a case of Narne Construction P Ltd. Etc., Vs. Union of India and others Etc. reported in AIR 2012 SC 2369, our Hon'ble Apex Court has held as follows:
"When a person applied for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the developer, or the contractor, the nature of transaction is covered by the expression 'service' or any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)((o) of the Act and any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers".
15. Applying the principle set out in the above referred case to the case on hand, herein also, as already stated, the complainant alleged that with a view to avail service of the opposite parties, he has paid Rs.40 lakhs,and later, the opposite 12 parties failed in their duty. Accordingly, in view of the above referred judgments, the complainant is entitled to approach this Commission to redress his grievance.
16. Further, in this regard, the learned counsel appearing for the complainant relied on the judgment reported in I (2020) CPJ 93- Mehnga Singh Khera and others Vs. Unitech Ltd., wherein Hon'ble National Commission has held as follows:
It is settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts.
17. Accordingly, it is settled a proposition that in the event of failure to give possession of the flat as agreed, the purchaser is entitled to approach the Consumer Commission. Therefore, as per the above proposition the complainant is before this Commission as Consumer, praying to redress his grievance. Hence, this issue is answered to the effect that the Complainant is a Consumer under the provisions of Consumer Protection Act.
13Issue No.2: Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties?
18. In respect of deficiency in service, in the case of Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Pvt. Ltd., and others, reported at 2020(3)RCR (Civil) 544, our Hon'ble Apex Court held as follows:
"23..... The expression deficiency of service is defined in section 2(1)(g) of CP Act, 1986 as "(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service"
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency.
There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression service‟ in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred 14 to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfillment of a contractual obligation.
19. The above dictum stated by our Hon'ble Apex Court is applied to the case in hand. Here, the complainant has alleged that after receipt of the partial sale consideration, the opposite party failed to construct the building within the period of one year as agreed. Though it was intimated by the opposite party that the building is ready for occupation, the opposite party failed to show the occupancy certificate issued by the competent authority. The Learned Counsel for the complainant cited the judgement of Hon'ble Supreme Court in M/s Treaty Construction versus Ruby Tower cooperative housing society wherein the Hon'ble Supreme Court observed "it is clear from the above dicta that the builder can not offer the flat without obtaining the requested occupation certificate and no house can be allowed to be occupied without obtaining occupation certificate from the concerned authority"
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20. He also relied on Samruddhi Co operative Housing Society vs Mumbai Mahalaxmi Construction Pvt ltd wherein Hon'ble Supreme Court again held 'the failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable.'
21. In A.R.G Housing vs Amit Kumar, Hon'ble National Consumer Disputes Redressal Commission also held that possession of the house could not have been and can not be offered to the complainant without obtaining the requisite Occupancy Certificate...No house can be allowed to be occupied without obtaining the requisite Occupancy Certificate.'
22. Refuting the above said claim, the learned counsel appearing for the opposite party has made submission that in the year 2017 itself Occupancy Certificate was obtained from the Puducherry Planning Authority and even after showing the same, the complainant refused to take the possession of the flat saying that there was deviation from the approved plan, which is now regularized by the Puducherry Planning Authority.
23. Now let us first examine the allegation that the building has not been constructed within the agreed date. Memorandum of agreement of construction Ex.C7 was perused. In the said Memorandum of Agreement entered between the complainant and the opposite parties, the period of construction has not been 16 mentioned anywhere. The complainant stated in his evidence that there was an oral agreement between him and the opposite party that the construction of the building is to be completed within one year. This cannot be accepted since he gave evidence contrary to the wording set out in the written agreement i.e. Ex.C7. Even though no time limit is mentioned in the Agreement for Construction, assuming a reasonable time of three years for the construction as conceded by the complainant's counsel in his written arguments, the building should have been completed by 14.07.2015. It is the case of the Opposite party that the building was indeed completed in March 2015 itself and Electricity and water connections obtained and possession handed over to the other allottees. Only the complainant has not taken possession citing various reasons. Perusal of Ex.R 10 and R11 which are letters dated 12.08.2015 and 30.08.2015 respectively from the complainant to the Opposite party reveals that the complainant was aware of the completion of the flat in all respects and it was intimated by the Opposite party vide his letter dated 24.09.2014 itself.RW1 in his deposition during cross examination also mentioned that the construction was completed in 2015 and 8 flats were handed over.This was not rebutted by the complainant. Therefore it is concluded that the construction of the building was completed within a reasonable time.
24. The second allegation leveled against the opposite party by the complainant is that Occupancy certificate has not been obtained for the complaint mentioned 17 building. In this regard, one Muruganandam, Town Planning Assistant, Puducherry Planning Authority gave evidence as CW.2. In his chief examination, CW.2 has deposed that on 02.05.2017 itself, the deficiency was rectified and thereafter the construction already completed was regularized and accepted, also the revised plan was accepted by the Puducherry Planning Authority and Occupancy certificate was issued on 10.11.2017which has been marked as Exhibit X6. Thus from the deposition of C W2 it is clear that Occupancy Certificate was obtained, albeit belatedly by about 2 years and 4 months.
25. Next allegation was that the complaint mentioned building has been constructed after encroaching the Municipal land and against the approved plan. In order to prove the same an Advocate Commissioner was appointed as per the request of the complainant in M.P No 3 of 2020, and the Advocate Commissioner Thiru.Veera Selvam submitted his report on 14.09.2022.The counsel for the opposite party argued that the Advocate Commission report should not be considered for evidence as the same has not been marked through the Advocate Commissioner. Per contra, the counsel for the complainant stated in his written arguments that the advocate commissioner report forms part of the court record and if the Opposite party wanted, he should have sought permission of the court and examined the commissioner. He has cited 1)the order of the Hon'ble High Court of Karnataka in Shadaksharappa vs Vijayalaxmi and others 2)the order of 18 Hon'ble Andhra High Court in Shaik Fathima Bi vs Shaik Nanne Saheb and
3)the order of Hon'ble Madras High Court in A.Nagarajan vs A.Madhankumar in support. We don't agree with the contentions of the Counsel for the Opposite party in view of the provisions of the CPC Order XXVI Rule 10 (2) which says 'The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record;' The provision also enables examination of the Commissioner by the Court or the parties. The orders of the Hon'ble High Courts of Madras ,Karnataka and Andhra Pradesh cited supra affirm the above position.
26. Now the Advocate Commissioner's report is examined. Summary of the report is given below:
1As per measurements at site, the FAR is 216.34 beyond the compoundable limits,super built up area is 1000.57 as against 1263sq.ft and there are violation of setback guidelines etc.
27. As the Opposite party has obtained Occupation certificate dated 10.11.2017 from the Pondicherry Planning Authority which says the building conforms in all respects to the requirements of the building bye laws , we have to presume that the findings were arrived at by the Advocate Commission without considering the extant byelaws.
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28. In order to prove the allegation of encroachment on municipal land, the complainant examined one Annamalai, Sub Inspector of Survey, who is working in Puducherry Municipality, as CW.3. In his chief examination, CW.3 deposed that has municipal road has been encroached and apart from the apartment, some private parties have also encroached the road. After marking the extent of encroachment, Municipality has taken legal action against the encroachers. He further deposed that the complaint mentioned apartment was constructed within the boundary and the compound wall alone has been constructed on the road margin area, which belongs to Puducherry Municipality. He has further added that permanent structure of the apartment is not situated on the encroached area and only a projection is there. According to the evidence given by CW.1, there was projection of apartment, which is against the approved plan. From the evidence of CW3 it is concluded that some encroachment of road by compound wall is there even though the building itself is not in municipal land.
29. In this occasion, it would be necessary to see whether the deviation from the approved plan was regularized or not. In this regard,the evidence of Muruganantham, CW2 from Puducherry Planning Authority referred already is perused. In his chief examination, CW.2 has clearly deposed that on 02.05.2017 itself, the deficiency was rectified and thereafter the construction already completed was regularized and accepted and the revised plan was accepted by the 20 Puducherry Planning Authority and Occupancy certificate was issued on 10.11.2017. As per the above evidence, as of now, defect claimed by the complainant was attended by the builder and regularised by the competent authority, Pondicherry Planning Authority and therefore it cannot be said that there is violation of the approved plan.
30. In this regard, in the written submissions, the complainant relied on the authority of WP No.28143 of 2023 -B. Kanchana Vs. The Commissioner, Corporation of Chennai, Chennai, wherein our Madras High Court, after discussing various judgments settled by our Hon'ble Apex Court and High Courts, has held as follows:
The applicants must give a reasonable time to the authorities to consider the grant of approval for construction of the building and any request for an instant approval will pave way for "under the table dealing' and in that process, the Officials will flourish and their belly will get doubled with the money received as bribe. No application for approval after completion of the building can be entertained, as it would amount to putting a cart before a horse. The Authorities shall also inspect the building from the basement level itself, so that the set backs as suggested by them/plan are adhered to and in any event, the FSI cannot be enhanced.21
31. Further, in the same line, the our Hon'ble High Court,Madras rendered the following judgments, which was submitted by the learned counsel appearing for the complainant:
1. W.P No 31949 of 2017
2.W.P No 3308 of 2020.
3.WP No.23772 2022,
32. According to the above referred judgments, courts are expected to access equitable jurisdiction for regularization of illegal and unauthorized constructions and directed the demolition of the unauthorized structures and disposed of the writ petitions in accordance with law. While the dicta of these judgments have been noted they do not provide any support to the complainant as the prayer in this case by the complainant is for compensation and refund of money.
33. This Commission does not have the jurisdiction to entertain complaints for violation of legal rights except the consumer rights. The scope of present complaint is rather limited to adjudicate whether the opposite parties have committed any deficiency or not and whether the complaint mentioned building is ready for occupation or not.
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34. Further, if the complainant intends to take action against the alleged defects in the plan and encroachment, it is for him to approach the competent authority by filing Writ Petition and not by filing complaint before this Commission.
35. It was further contended by the complainant that the Occupancy Certificate was obtained by the opposite parties by playing fraud and undue influence and hence the same cannot be accepted as evidence. We are not here to look at the genuinity of the document issued by the competent authority. Even assuming that the opposite party had obtained Occupancy Certificate by playing fraud, it is for complainant to lodge the complaint before the competent authority as against the officer who issued the same. But, nothing was produced on the side of the complainant that he lodged the complaint as against the officers who issued a false Occupancy Certificate. So, in this regard, after admitting the issuance of Occupancy Certificate, now claiming that the same was obtained by fraud cannot be sustained.
36. Accordingly in the light of the discussion supra, we unanimously hold that there was deficiency in service on the part of the opposite parties only in respect to obtaining Occupancy Certificate from the competent authority. Accordingly, this issue is answered.
23Issue No.3:Whether the complainant is entitled to receive compensation from the opposite parties?
37. In view of the findings arrived in issue no.2, we hold that the complainant is entitled to receive compensation for the delay in obtaining Occupancy Certificate. Also it has been held by the Hon'ble Supreme Court in a catena of judgements that compensation should not be pittance nor a source of bonanza for the receipient. Considering the facts of the case sum of Rs.3,00,000/- may be paid as compensation for the above deficiency to meet the ends of justice. Issue No.4: Whether the complainant is entitled to get back the part sale considerate on paid to the opposite parties?
38. Hon'ble Supreme Court has held in various cases that the house allottees cannot be made to wait indefinitely for obtaining possession of the houses. However, here in this case, the aspect which is necessarily to be seen is that the complainant himself admitted in his evidence on 12.10.2017 that if the Occupancy Certificate is produced, he is ready to occupy the building. In this regard, CW.2 gave evidence that after regularizing the defect, the Occupancy Certificate was issued to the builder in November 2017 itself. Also the Occupancy certificate was marked as X6.Hence it cannot be said that the complainant was not aware of the completion of the house and availability of Occupancy Certificate for the house. 24 He could have taken possession of the flat after completing the remaining requirements. Hence, the claim of the complainant that the partly paid consideration should be refunded is not maintainable. Issue No.5:To what other relief, the complainant is entitled?
39. In view of the findings in issue nos.1 to 4, the complainant is not entitled to any other relief.
40. In the result, the complaint is partly allowed. The opposite party is directed to pay Rs.3,00,000/- as compensation for causing delay in getting the occupancy certificate. In otherwise, the complainant is not entitled to receive the advance/ part sale consideration paid to the opposite party. There is no order as to costs.
Dated this the 22nd day of August 2023.
Sd/-
(Justice R. PONGIAPPAN) PRESIDENT Sd/-
(Dr.S. SUNDARAVADIVELU) MEMBER Sd/-
(S. OUMASANGUERY) MEMBER 25 LIST OF COMPLAINANT'S WITNESSES:
CW.1 12.10.2017 R. Nallusamy
CW.2 19.12.2019 Muruganandam
CW.3 07.12.2022 S. Annamalai
LIST OF OPPOSITE PARTIES' WITNESSES:
RW.1 15.03.2023 Ezhumalai
LIST OF COMPLAINANT'S EXHIBITS:
Ex.C1 16.03.2011 Photocopy of the Sale Deed registered in
Doct.No.1509/2011.
Ex.C2 16.06.2011 Photocopy of the Joint Venture Agreement in
registered doc.No.2587/2011.
Ex.C3 15.06.2011 Photocopy of the Power Deed registered in doct.
No.624/2011.
Ex.C4 14.06.2011 Photocopy of letter issued by the Sub Collector,
Puducherry.
Ex.C5 -- Photocopy of FMB Sketch.
Ex.C6 -- Photocopy of Settlement Extract copy issued by the
Government of Puducherry.
Ex.C7 15.07.2012 Original Memorandum of Agreement.
Ex.C8 15.07.2012 Original Agreement for Sale of undivided Land.
Ex.C9 27.08.2014 Photocopy of letter from the complainant to the
first opposite party.
Ex.C10 24.09.2014 Photocopy of letter from the first opposite party to
the complainant.
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Ex.C11 -- Photocopy of letter from the complainant to the
first opposite party.
Ex.C12 05.12.2014 Photocopy of letter from the first opposite party to the complainant.
Ex.C13 26.01.2015 Photocopy of letter from the complainant to the first opposite party.
Ex.C14 23.02.2015 Photocopy of letter from the complainant to the first opposite party.
Ex.C15 05.03.2015 Photocopy of letter from the complainant to the first opposite party.
Ex.C16 28.03.2015 Photocopy of letter from the first opposite party to the complainant.
Ex.C17 12.08.2015 Photocopy of letter from the complainant to the first opposite party.
Ex.C18 30.08.2015 Photocopy of letter from the complainant to the first opposite party.
Ex.C19 12.10.2015 Photocopy of letter from the first opposite party to the complainant.
Ex.C20 27.10.2015 Photocopy of letter from the complainant to the first opposite party.
Ex.C21 -- Original Town Planning Approval issued by the PPA Government of Puducherry.
Ex.C22 28.01.2016 Copy of legal notice.
Ex.C23 24.02.2016 Reply notice issued by the 1st opposite party. Ex.C24 07.02.2016 Returned postal cover addressed to the second opposite party.
27Ex.C25 21.11.2016 Photocopy of Scrutiny Building Plan issued by Puducherry Planning Authority, marked through CW.2.
Ex.C26 11.04.2011 Photocopy of Scrutiny Building Plan issued by Puducherry Planning Authority, marked through CW.2.
Ex.C27 02.05.2017 Letter from Puducherry Planning Authority addressed to the first opposite party alongwith enclosures.
Ex.C28 12.09.2022 Original Bill towards the charges for measuring the building and physical features as per Schedule I, II, III by the appointment of Advocate Commission by V.Kanchana Value.
Ex.C29 05.03.2013 Photocopy of house rent paid by the complainant to the opposite party for the period from March 2012 to March 2013.
Ex.C30 -- Photocopy of house rent paid by the complainant to the opposite party for the period from April 2017 to March 2018.
Ex.C31 -- Photocopy of house rent paid by the complainant to the opposite party for the period from April 2018 to March 2019.
Ex.C32 -- Photocopy of house rent paid by the complainant to Series the opposite party for the period from April 2020 to April 2021 to March 2022 (2 nos.) Ex.C33 -- Photocopy of house rent paid by the complainant to the opposite party for the period from April 2022 to March 2023.
Ex.C34 26.02.2021 Copy of consent letter issued by HDFC Bank Housing Loan A/c.No.356606786 in original.
28Ex.C35 26.02.2021 Copy of consent letter issued by HDFC Bank Housing Loan A/c.No.606086737 in original.
Ex.C36 -- Photocopy of the HDFC Bank Statement
A/c.No.606086737 for the period from 01.10.2012
to 30.06.2020.
Ex.C37 -- Photocopy of the HDFC Bank Statement
A/c.No.356606786 for the period from 01.04.2011
to 30.04.2019.
Ex.C38 -- Photocopy of Marginal cost lending rates of SBI.
Ex.C39 02.04.2014 Certificate for interest for the period from
01.04.2012 to 31.03.2013 of HDFC Bank.
Ex.C40 09.04.2014 Provisional statement of EMI for the period from
01.04.2014 to 31.03.2015 of HDFC Bank.
Ex.C41 21.07.2012 Installment advice issued by the opposite party.
Ex.C42 27.07.2012 Part Disbursement advice issued by the opposite
party.
Ex.C43 08.04.2014 Certificate for interest for the period from
01.04.2013 to 31.03.2014 of HDFC Bank.
Ex.C44 08.04.2014 Provisional statement of EMI for the period from
01.04.2014 to 31.03.2015 of HDFC Bank.
Ex.C45 08.04.2014 Interest rate/repayment details for the year ending
on 31.03.2014 of HDC Bank.
Ex.C46 -- Home Loan Agreement of HDFC Bank.
Ex.C47 -- Home Loan Agreement of HDFC Bank.
Ex.C48 -- Photocopy of Income Tax returns of the
complainant for the financial year 2016-2017.
29
LIST OF OPPOSITE PARTY EXHIBITS :
Ex.R1 21.04.2017 Letter given by Pondicherry Planning Authority, Puducherry addressed to the first opposite party, marked through cross examination of CW.2.
Ex.R2 15.07.2012 Photocopy of Memorandum of Agreement for Construction between the complainant and the first opposite party.
Ex.R3 15.07.2012 Photocopy of Agreement for Sale of Undivided Land between the second opposite party and the complainant.
Ex.R4 27.08.2014 Letter from the complainant to the first opposite party.
Ex.R5 24.09.2014 Letter from the first opposite party to the complainant.
Ex.R6 28.10.2014 Letter from the first opposite party to the complainant.
Ex.R7 05.12.2014 Letter from the first opposite party to the complainant.
Ex.R8 23.02.2015 Letter from the complainant to the first opposite party.
Ex.R9 05.03.2015 Letter from the first opposite party to the complainant.
Ex.R10 28.03.2015 Letter from the complainant to the first opposite party.
Ex.R11 12.08.2015 Letter from the complainant to the first opposite party.
30Ex.R12 30.08.2015 Letter from the complainant to the first opposite party.
Ex.R13 02.10.2015 Letter from the first opposite party to the complainant.
Ex.R14 30.08.2015 Letter from the complainant to the first opposite party.
Ex.X1 27.12.2012 Photocopy of letter from Pondicherry Planning Authority, Puducherry to the first opposite party marked through CW.2 Ex.X2 -- Photocopy of Construction Plan marked through CW.2.
Ex.X3 -- Photocopy of Construction Plan marked through CW.2 Ex.X4 -- Photocopy of Construction Plan marked through CW.2 Ex.X5 06.12.2014 Authorisation letter given to CW.2. Ex.X6 10.11.2017 Photocopy of Occupancy Certificate. Ex.X7 09.11.2017 Photocopy of Inspection Report for Occupancy Certificate.
Ex.X8 15.11.2022 Authorisation letter given to CW.3. Ex.X9 05.12.2022 Photocopy of Survey Report on the encroachment of Government Promboke land marked through CW.3.
Ex.X10 13.11.2018 Photocopy of request to lay new road given by Series Dr.Abdulkalam Street Residence' Association address to the Director, Local Administration Department, Puducherry.
31Ex.X11 05.12.2022 Form-A notice given by Pondicherry Municipality, Series Puducherry to Tmt. Geetha and Thiru.Ejoumale.