State Consumer Disputes Redressal Commission
Saradha Jaganathan vs Metro City Foundation, Managing ... on 5 November, 2015
Daily Order BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE Thiru. J.JAYARAM PRESIDING JUDICIAL MEMBER
Tmt. P. BAKIYAVATHI MEMBER
C.C. 51/2012
DATED THIS THE 5TH DAY OF NOVEMBER 2015
Mrs. Saradha Jaganathan
W/o Mr. Jaganathan
No.10, Devanagapuram street
Tirupur - 641 602 ..complainant
Vs
1. M/s Metro City Foundation
No.96, Perumal Kovil street,
Tiruppur 641 604
Represented by its Managing Director,
2. D.Prabhu
Partner
M/s Metro City Foundation,
No.10, Deepam Complex
No.577, 100 Feet Road
Gandhipuram
Coimbatore-12
3. Mrs.P.Jayanthi
Partner
M/s Metro City Foundation,
No.10, Deepam Complex
No.577, 100 Feet Road
Gandhipuram
Coimbatore-12
4. M.P.S.Thiagarajan,
s/o M.P.Subramaniam,
49, Ramalinga Layouts
K.P.N colony
Tiruppur 641 601
5.Mrs. T.Sudha
W/o M.P.S.Thiagarajan,
49, Ramalinga Layouts
K.P.N colony
Tiruppur 641 601 ..opposite parties
Counsel for the complainant : M/s. S.Natarajan
Opposite parties 1 to 5 : Exparte
This case coming before us for final hearing on 12.10.2015 and on hearing the arguments of the complainant and upon perusing the material records, this Commission made the following order Thiru. J.JAYARAM, PRESIDING JUDICIAL MEMBER
1. The Case of the complainant are as follows:-
Flat No. L-1, with 2200 sq.ft of built up area along with 800 sq.ft of undivided share was allotted and agreed to be sold to the complainant. Accordingly a separate agreement for construction dated 30.11.2006 was executed between the complainant and the 1st opposite party. As per the agreement for construction, the 1st opposite party undertook to construct the multi storied building in accordance with the development plans sanctioned by the Directorate of Town and Country Planning Authority, Local Panchayat and other statutory authorities like Coimbatore Corporation and Ministry of Local Administration. Under Article I(i) of the Agreement for construction, the total sale consideration is Rs. 59,30,000/- towards the land and construction. Further under Article I(7), the first opposite party undertook to hand possession by January 2008. The 1st opposite party under Article 3(iii), of the construction agreement, agreed to pay 18% interest for the delayed period of delivery beyond January 2008.
2. The 4th and 5th opposite parties being owners of the suit premises executed the registered sale deed of undivided share of 800 sq.ft on 29.12.2006. 4th and 5th opposite parties have appointed and engaged the developer herein to put up a multi-storied residential complex in the A schedule properties as per the approved plan.
3. The complainant paid a total sum of Rs. 70,05,000/- as per the construction agreement on 4.2.2008 itself and she performed the obligation as per the construction agreement. Due to interse dispute between the opposite parties they have delayed the construction work. The 1st opposite party handed over the incomplete possession on 18.1.2010. The complainant finds following incomplete work.
i) Proper Corporation drinking water bulk lines not provided ii) There was no access to Club House. There are no proper play area with right equipment for children
in the complainant flat, Electrical fittings, lights, Lamps, Wardrobes, substandard tiles are used. Floor tiles are fixed by unskilled cheap labour, totally running the output.
The Door, window hinges, tower bolts, locks, handles were missing.
Parking area flooring is poorly laid with lot of undulations.
The quality of floor tiles, bathroom fittings are below the quality.
No complete wardrobe in one bedroom Swimming pool is not yet provided.
No sanctioned plan has been given.
No parental deed relating to the title of the suit proper has been given There was no proper water and sewerage connection.
No approved layout plan given Generator facility provided is highly underrated, insufficient and substandard equipment is provided resulting in high maintenance and fuel consumption.
Common toilet is not provided.
Lighting in the common areas, open areas, garden and parking area is highly insufficient.
Rain water harvesting is not provided.
Poor quality Gym equipments and AC not provided in the Gym.
Weathering course on the open terrace is substandard.
Intercom facility among the flats not provided.
Plumbing carried out by unskilled workers causing permanent worries.
Thus there was total absence of common amenities in the project and defects in the individual project.
4. As per the construction agreement, the 1st opposite party agreed to handover possession by January 2008, but they handed over possession on 18.1.2010 and hence they are liable to pay Rs. 24,60,375/- as compensation for the delayed period.
5. The completion certificate given by Corporation is mandatory for multi storied building before occupation and in the event of deviation, there is a serious threat of demolition. The 1st opposite party is under legal obligation to get completion certificate from Corporation Authority. Only on getting completion certificate and occupancy certificate, the complainant will enjoy of the statutory benefit. The corporation usually has given completion certificate, only on completion of the entire project as per sanctioned plan; but the opposite party has not handed over the completion certificate till today.
6. It is in trade practice that before handing over possession measurement of the flat to be given must be done by the purchaser to avoid future dispute of area reduction. The measurement plan and architect plan are not given and the opposite parties are liable to pay Rs.1,52,500/- towards the claim in respect of unfinished works, namely Electrical fittings, lights, Lamps, Wardrobes and substandard tiles used. There was undue delay in completing the project which amounts to deficiency in service.
Hence the complainant praying for direction to the 1st opposite party to refund the excess amount a sum of Rs.10,75,000/- collected from the complainant, to direct the opposite parties to pay a sum of Rs. 24,60,375/- as compensation for the delay in delivering possession and a sum of Rs.1,52,500/- towards the incomplete work, and a sum of Rs. 5,00,000/- as compensation for mental agony and deficiency in service and in indulging in unfair trade practice, to direct the opposite parties to execute the sale of undivided share of 365 sq.ft as per the price prevailed on 29.12.2006 and to pay costs of Rs.25,000/-
The opposite parties 1 to 5 remained absent before the Commission and they were set exparte.
7. There is an averment in the complaint that the 1st opposite party in their letter dated 31.8.2009, admitted that the complainant is entitled to the area of 1165 sq.ft undivided share of balance 365 sq.ft, but the complainant is willing to pay the price prevailing at the time of execution of sale deed dated 29.12.2006.
8. The complainant filed proof affidavit reiterating the averments in the complaint. 7 documents were filed and marked as Ex.A.1 to A.7 on the side of the complainant.
9. Points for consideration:-
1) Whether the opposite parties adopted unfair trade practice and whether there is any deficiency in service on the part of the opposite parties, as alleged the complaint?
2) Whether the complainant is entitled to claim compensation from the opposite parties?
3) To what relief the complainant is entitled ? 10. Points 1 &2 :- Ex.A.1 is the copy of construction agreement dated 30.11.2006 Ex.A.2 is copy of sale deed dated 29.12.2006, Ex.A.3, is the copy of possession certificate dated 18.1.2010, Ex.A.4, copy of letter of the complainant to the 1st op dated 31.8.2009, Ex.A.5, copy of protest letter dated 19.1.2010, Ex.A.6, copy of payment details and Ex.A.7, photos of flats L1 and L2.
11. We find that Rs.59,30,000/- is the total amount of sale consideration and the cost of the construction and also we find that the stipulated period for completion of construction and handing over possession is January 2008 and per Article 1(7) of the Construction Agreement, the 1st opposite party will pay 18% p.a interest for the delayed period of delivering possession beyond January 2008, the complainant has paid a total sum of Rs.70,05,000/- as per the construction agreement on 4.2.2008 and also we find that the 1st opposite party has delivered the possession of constructed flat to the complainant on 18.1.2010.
12. On considering the entire material record it is established that the 1st opposite party has adopted unfair trade practice and there is deficiency in service on the part of the opposite parties.
13. For the aforesaid reasons, we hold that the opposite parties have adopted unfair trade practice and there is deficiency in service on the part of the opposite parties and that the complainant is entitled to get compensation from the opposite parties and the points are answered accordingly.
14. Point No.3 :
In view of the finding of points 1 and 2, we hold that the complainant is entitled to get compensation for the delay in delivering the possession and for the incomplete works and compensation for mental agony and deficiency in service and unfair trade practice and costs and the point is answered accordingly,
15. The complainant has claimed Rs.24,60,375/- as compensation for the delay in handing over the possession and Rs.1,52,500/- towards the incomplete works and to pay a sum of Rs. 5 lakhs for compensation for mental agony etc., and cost of Rs.25,000/-. We feel that the claim of Rs.5 lakhs as compensation for mental agony etc, is on the higher side and we are inclined to award Rs.2 lakhs. So also, we are inclined to reduce the cost to Rs.10,000/- instead of Rs.25,000/-.
In the result, the complaint is partly allowed, directing the 1st opposite party to refund the excess amount a sum of Rs.10,75,000/- collected from the complainant, to direct the opposite parties to pay jointly and severally a sum of Rs. 24,60,375/- as compensation for the delay in delivering possession and to pay a sum of Rs. 1,52,500/- as compensation towards incomplete works and to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as compensation for mental agony, deficiency in service and unfair trade practice, to direct the opposite parties to execute the sale of undivided share of 365 sq.ft as per the price prevailed on 29.12.2006 and to pay costs of Rs.10,000/-(Ten Thousand Rupees only) Time for compliance : Two months from the date of receipt of copy of this order. In case of default in compliance of the order, the amounts shall carry interest at the rate of 9% p.a. from the date of default till compliance.
TMT. P. BAKIYAVATHI J. JAYARAM MEMBER PRESIDING JUDICIAL MEMBER Documents filed by the Complainant :- Ex.A.1 30.11.2006 copy of construction agreement Ex.A.2 29.12.2006 copy of sale deed Ex.A.3 18.1.2010 copy of possession certificate Ex.A.4 31.8.2009 copy of letter of the complainant to the 1st op Ex.A.5 19.1.2010 copy of protest letter Ex.A.6 copy of payment details Ex.A.7 photos of flats L1 and L2. TMT. P. BAKIYAVATHI J. JAYARAM MEMBER PRESIDING JUDICIAL MEMBER