National Consumer Disputes Redressal
M/S. Jain Housing vs Arjunan Muthukrishnan on 29 November, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 324 OF 2020 (Against the Order dated 13/12/2019 in Complaint No. 127/2015 of the State Commission Tamil Nadu) 1. M/S. JAIN HOUSING A PARTNERSHIP FIRM, REP. BY ITS MANAGING PARTNER-SHRI SANDEEP MEHTA, HAVING OFFICE AT NO. 98-99, HABIBULLAH ROAD, T NAGAR, CHENNAI-600017 ...........Appellant(s) Versus 1. ARJUNAN MUTHUKRISHNAN R/O. FLAT TE/12, JAINS PEBBLE BROOK, SAKTI GARDEN, CROSS ST. NO. 1, OKKIAMPETTAI, THURAIPAKKAM, CHENNAI-600097 ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,MEMBER For the Appellant : Ms. G. Indira, Advocate For the Respondent : Respondent in person Dated : 29 Nov 2022 ORDER
1. This appeal has been filed under section 19 of the Act 1986 in challenge to the Order dated 13.12.2019 of the State Commission in complaint no. 127 of 2015.
2. We have heard the learned counsel for the builder firm (the appellant herein) and the complainant in person (the respondent herein). We have also perused the record, including inter alia the State Commission's impugned Order dated 13.12.2019 and the memo of appeal.
3. Briefly, as evinces from pleadings and the appraisal made by the State Commission, the complainant entered into an agreement for a flat inclusive of Undivided Share (UDS) in the land in the subject project of the builder firm. He paid the cost in instalments as per the schedule. The assured period for completing the project and for offering possession of the flat was 24 months from the date of starting construction with a grace period of 03 months. But the builder firm gave possession of the flat with delay of 13 months even beyond the grace period. Only a partial completion certificate was obtained and as such the overall amenities and conveniences in their entirety, which would have come into place only on the complete completion of the project, were lacking to a certain extent. At the time of delivering physical possession the complainant was forced to give an affidavit under duress by the builder firm. The sale-deed of the UDS was executed on 28.10.2011, but it was not handed over to him by the builder firm till 23.06.2014 i.e. for about 2 years and 08 months it was unduly and unfairly retained by the builder firm. At the time of booking the builder firm had informed the complainant that the sewage treatment plant (STP) would be installed on the west side of block 8 (which is corroborated by the layout approved by the development authority (CMDA) on 18.11.2011) and that it would not come near block 12 where the complainant's flat was situated. However the STP was finally installed near block 12, which was in violation of the assurance given, and it became a cause of continual nuisance to the complainant. And it had a depreciating and diminutive effect on the value of his flat for all times. Further, without the consent and knowledge of the complainant, the builder firm, treating his allotment to be in phase I of the project, started constructing a second phase II on land closely adjacent to his tower and selling the UDS to additional flat buyers in the total area of both phases taken together. This, in addition to creating more congestion, leaving less open space, having more people sharing the amenities, causing more pollution, etc., was also to his pecuniary detriment as it encumbered the marketable title in respect of his UDS in the land on which phase I was exclusively developed, much moreso since the UDS was now given on the total land of both phases taken together. Holding 'unfair trade practice' and 'deficiency in service' on the part of the builder firm the State Commission partly allowed the complaint and ordered it to pay a sum of Rs. 5 lakh with cost of litigation of Rs. 10,000/- to the complainant within a period of four weeks failing which the sum of Rs. 5 lakh shall carry interest at the rate of 12% per annum from the date of the complaint till actual payment.
4. A perusal of the State Commission's Order of 13.12.2019 shows that it is a well appraised and reasoned order and has aptly dealt with the issues germane to the dispute.
5. Learned counsel for the builder firm submits that the society, comprising of all allottees, of which the complainant herein is also a member, is currently engaged in arbitration with the builder firm and as such the complainant's individual complaint is not maintainable.
However, on a specific query, learned counsel has not been able to shed light on the matter directly and substantially in issue in the arbitration proceedings. Neither has any document or material been placed on record as may enable to discern the matter in issue in the arbitration proceedings. In the absence of the same we see no reason to treat the complainant's present complaint, filed in his individual capacity, in relation to his individual grievances, as not maintainable.
6. Learned counsel also submits that the complainant had given an affidavit to the effect that all the works in respect of the subject project were completed to his satisfaction which precludes him now to raise any grievance.
However, the facts and circumstances surrounding this affidavit have been extensively critiqued by the State Commission, and, for reasons recorded, the State Commission has determined that the affidavit was taken under duress by the builder firm and that it in no way estops the complainant from approaching the consumer protection forum.
7. No other point was argued by the learned counsel for the builder firm.
8. There is no plausible explanation forthcoming regarding the change in the location of the STP and the non-fulfilment of the initial assurance given to the complainant that the STP would be installed far removed from his flat. Nor is there any credible explanation for adding a phase II and selling UDS over the total land of both phases taken together, which was not only detrimental to the ease of living but was also to the pecuniary harm of the complainant. Both these aspects have been lengthily examined by the State Commission, and, for reasons given, determined against the builder firm.
9. The State Commission appears to have endeavoured to compensate the complainant for his loss and injury at a quantified sum of Rs. 5 lakh, which appears reasonably fair and optimally equitable in the facts and circumstances of the case.
10. We do not see any reason to take a different view of the matter than what has been taken by the State Commission. And we agree with the State Commission that the proved facts of the case constitute both 'unfair trade practice' and 'deficiency in service' under the Act 1986.
11. The appeal, being totally sans merit, is dismissed with cost of Rs. 25,000/- to defray litigation expenses in the appellate proceedings.
The award made by the State Commission vide its impugned Order dated 13.12.2019 is sustained.
The award as well as the cost imposed herein shall be made good by the builder firm through its partner(s) within four weeks from today, failing which the State Commission shall forthwith undertake execution, for 'enforcement' and for 'penalty', as per the law.
12. The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel forthwith. The stenographer is requested to upload this Order on the website of this Commission immediately.
...................... DINESH SINGH PRESIDING MEMBER ......................J KARUNA NAND BAJPAYEE MEMBER