State Consumer Disputes Redressal Commission
N.S. Parameswari W/O. Somasundaram ... vs E.R.R. Constructions (P) Ltd., Rep. By ... on 24 June, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) Tmt. VASUGI RAMANAN MEMBER II F.A.NO.135/2009 (Against order in CC.NO.34/2004 on the file of the DCDRF, Erode) DATED THIS THE 24th DAY OF JUNE 2011 N.S. Parameswari W/o. Somasundaram No.16/8, Old State Bank Colony Erode-1 Appellants/ Complainant Vs. 1.
E.R.R. Constructions (P) Ltd., Rep. by its Director E.R.Mohanasundaram No.230, Gandhiji Road Erode- 638 002
2. E.R. Mohanasundaram S/o. E.R. Rangasamy Director: E.R.Constructions (P) Ltd., Rukmani Apartment, Annai Sathya Nagar Erode 11 (R1 & R2 served absent)
3. E.R. Parvathavarthini S/o. E.R. Rangasamy Gounder Director: E.R. Constructions (P) Ltd., Chetti Thottam, Perundurai Main Road Ingur 638 058 (called absent)
4. LIC Housing Finance Ltd., Rep. by its Area Manager United India Building Avinashi Road, Coimbtore Rep. by its Area Manager Respondents/ Opposite parties The Appellant as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.4,55,000/- with 18% interest, alongwith compensation of Rs.1 lakh and cost. The District Forum allowed the complaint.
Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.22.8.2008 in CC.No.34/2004.
This petition coming before us for hearing finally on 08.06.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ Complainant: M/s.V. Annalakshmi Counsel for the 4th Respondent/Opposite parties : M/s. B.B.Senthil Kumar M. THANIKACHALAM J, PRESIDENT
1. The complainant is the appellant.
2. The complainant/ appellant, had purchased a house, in the first floor of Rukmani Apartments, Annai Sathya Nagar, Erode for Rs.4,55,000/- from the opposite party, as per the agreement dt.15.7.1998. The opposite party had agreed to finish the construction work and hand over possession of the building, on or before August 2002. On the basis of the above said agreement, the complainant had paid entire sale price of Rs.4,55,000/- in time, but the opposite parties have not finished the work, and handed over possession of the same, as agreed, thereby caused deficiency in service, as well as monetary loss to the complainant, since he had borrowed loan from LIC, assigning the insurance policy. Because of the deficiency committed, the complainant is entitled to not only a sum of RS.1 lakh as compensation, but also entitled to refund of the amount paid viz.
Rs.4,55,000/-, and interest.
Thus the consumer complaint was filed before the District Forum.
3. The opposite parties, admitting the agreement between themselves and the complainant, as well as the price fixed for the building, resisted the case, interalia contending that the complainant has to pay a balance of Rs.27,500/- to the opposite parties, and because of the non-payment of the said amount, construction was not completed and handed over, which cannot be termed as deficiency in service, thereby prayed for the dismissal of the complaint, disputing other averments also.
4. The District Forum, by its order dt.22.8.2008, approaching the case negatively, as if the opposite parties have failed to prove that they have not received the balance, came to the conclusion, that there was deficiency of service, on the part of the opposite parties, and in this way, a direction was issued against them, to handover the house, specified in the agreement, after completion of the entire work, as well to pay a sum of Rs.25000/- towards compensation, with cost of Rs.2000/-, which had not satisfied the complainant, resulting this appeal.
5. The opposite parties, though suffered some kind of adverse order, as well adverse remarks, have not challenged the same before us, to our knowledge, since it was not pointed out, any appeal is pending, if any filed by the opposite party, and in this view, we can safely conclude that the opposite parties have accepted the findings of the District Forum. However, the complainant is not satisfied, resulting this appeal.
6. The learned counsel for the appellant would contend, that since the complainant has not sought for possession of the building, the order of the District Forum is erroneous, that too since the prayer was only for the refund of the amount paid, for the purchase of the constructed building, which is also not opposed.
The prayer in the complaint reads:
a) to repay Rs.4,55,000/ to the complainant with interest at 18% per annum from 22.5.2002 to the date of repayment by the opposite parties 1 to 3.
b) to direct the opposite parties 1 to 3 to pay Rs.1,00,000/- toward the mental agony caused to the complainant;
But the relief given reads the opposite parties 1 to 3 are directed to handover the house as specified in the agreement after completion of the entire work, to pay a sum of Rs.25000/- towards compensation for mental agony and sufferings. Thus we see the 1st prayer is not complied with, as such, and a portion of the 2nd prayer alone was complied with. Therefore, now the appeal aims for the recovery of the amount not for building. Admittedly, the parties have entered into the agreement, under which the total consideration payable by the complainant was Rs.4,55,000/-. Except for Rs.27,500/-, for the other payments, there are receipts, and the opposite party disputed the payment of Rs.27,500/-, alone further contending that since the complainant has not paid the balance, he has not completed the construction. But unfortunately taking the strange view, the District Forum has accepted the case of the complainant, as if the opposite parties have failed to prove, that they have not received the amount, which is not challenged, and therefore, we are declined to disturb the said finding also.
7. In the agreement, which is exhibited as Ex.A1, we find no time limit, and the agreement says, as per the schedule attached to the agreement, the opposite party should construct and handover possession in good condition, to the complainant. Major portion of the building was also constructed, and in the complaint also we do not find any allegation regarding any defective nature of construction, or substandard materials used or something like that, and infact in paragraph 5 of the complaint, it is said that opposite parties 1 to 3, have not finished their wok, in the apartment and handed over possession of the same, as agreed. Since there is no specific agreement, regarding the period, we should say, within the reasonable period, the building should have been constructed and handed year, and taking this view alone, the District Forum has passed an order, directing the opposite party to handover possession, which cannot be perse faulted, as if the complainant is entitled only to recover the amount.
8. As seen from Ex.A14 on 28.4.2002 itself, the opposite parties have issued a notice to the complainant, admitting the receipt of a sum of Rs.4,07,500/-, demanding the balance of Rs.47030/-, further assuring that the apartment will be handed over by the complainant, fully furnished, as agreed by both, within 30 days from the date of payment of balance amount. After this notice dt.28.4.2002, it seems the complainant has not paid any amount, and even after this, there was no payment, evidenced by any receipt, and oral payment said to have been made, was accepted by the District Forum. Therefore, we cannot say there was any deficiency, on the part of the opposite party, when the complainant failed to prove the full payment, unfortunately the opposite parties have not challenged the order of the District Forum, and therefore we are constrained, to confirm the same, with some modification, since the opposite party had not handed over the possession of the building, within the reasonable time, though the agreement have entered into between the parties on 15.7.1998, and as of right the complainant is not entitled to get back the amount, when the payments were made as per the agreement, and when no defective nature of the building is complained and proved. Under the above said facts and circumstances of the case, we are constrained to allow the appeal partly, modifying the order of District Forum, to serve the purpose, for both the parties.
9. In the result, the appeal is allowed in part, modifying the order of the District Forum in CC.No.34/2004, dt.22.8.2008, directing the opposite parties 1 to 3 to handover possession of the building, completing the construction fully, as per the agreement dt.15.7.1998 (Ex.A1), within 4 months, from the date of receipt of this order, failing which, directing the opposite parties to pay a sum of Rs.4,55,000/- with interest thereon, from the date of default of handing over possession @9% p.a., with compensation and cost, as ordered by the District Forum. There will be no order as to cost in this appeal.
VASUGI RAMANAN A.K.ANNAMALAI M.THANIKACHALAM MEMBERII JUDICIALMEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Bank