State Consumer Disputes Redressal Commission
B.M.Nagarajan,Rep. By Power Of ... vs Authorized Rep.Apesh Constructions ... on 24 November, 2015
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IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MADURAI BENCH.
Present: Thiru.J. JAYARAM, Presiding Judicial Member.
Thiru.M. MURUGESAN, Member.
C.C.No.33/2013
THE 24th DAY OF NOVEMBER 2015
B.M. Nagarajan,
Represented herein by his father and
Power of Attorney Mr. B.R. Mohanlal
10 (8-A), Balarengapuram Third Cross Street,
Madurai - 625 009. Complainant
-Vs-
(1). M/s. Apesh Constructions Limited,
Rep.herein by its Authorized Representative,
The Crystal,
# 52-A, 2nd Floor, HAK Road,
Opp. Seventh Day Adventist Church,
Chinna Chokkikulam,
Madurai - 625 002.
(2). M/s. Apesh Constructions Limited,
Rep. herein by its Chairman/Managing Director,
F-60, Malhotra Building, 2nd Floor,
Connaught Place,
New Delhi - 110 001
(3). M/s. India Bulls Real Estate Limited,
Rep. herein by its Chairman/Managing Director,
India Bulls House, India Bulls Finance Centre,
Tower-1, 14th Floor,
Senapati Bapat Marg,
Elphinstone Road,
Mumbai - 400 013 Opposite parties
Counsel for Complainant : Mr.M. Piravi Perumal
Counsel for Opposite Parties : Exparte
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This case coming before us for final hearing on 30-10-2015
and on hearing the arguments of the complainant side and upon perusing
the material records, this Commission made the following
ORDER
THIRU.J. JAYARAM, PRESIDING JUDICIAL MEMBER.
1. The case of the complainant is as follows: -
The opposite parties are promoters and builders of residential apartments. They have promoted/floated a residential apartment under the name and style "India Bulls Centrum" at Mahalipatti, Madurai. As per the details in their official website and brochure the residential apartments is situated in the bans of River Vaigai, it is a premium residential township provides an ideal opportunity to live in the historic centre of the city yet to enjoy an enviable, modern lifestyle, with meticulous attention to detailed and perfect blend of aesthetics, greenery and value added amenities inviting to a lavish home right in the heart of Madurai. The said project is in phases viz. Phase - 'A' 'B' 'C' 'D'.
According to the brochure the project had been completed and possession had started and the apartment is ready to move in. Further the opposite parties have represented that the residential apartments shall have the following delightful amenities : - (1). Discover the green outdoor (2). Jogging track (3). Children's Play Area (4). Amphitheatre 3 (5). Splash Pool (6). Club House with gym (7). Facility for indoor games (8). Multipurpose Hall (9). 24 X 7 power back up for apartments (10).
Common Area (10). Two automatic lifts (11). Beautiful garden (12). Gorgeous landscape (13). Wide internal road (14) Stilt car parking etc. The complainant, an NRI and his father intended to buy a posh apartment with all lavish facilities like swimming pool, club house, greeneries blended with modernity. The complainant believing the representations of the opposite parties about the premium/lucrative/ gorgeous salient features outlined by them approached the 1st opposite party along with his father who is the power agent. Regarding the price, mode and manner and duration of payment etc. the 1st opposite party stated that since the residential apartments had already been constructed and was ready for occupation, there was no question of making payment in installments in stage wise as done by those who booked in the year 2011. He stated the complainant has to pay Rs.49,56,800/- (excluding service tax and VAT) towards consideration for undivided share, cost of construction, car parking, electric water charges etc, club house, corpus fund and legal expenses. The complainant has made the payments to the tune of Rs. 58,14,207 in installments and the final payment being Rs. 1,10,222/- made on 20-12-2013. Even after receiving the final payment as agreed the opposite party is demanding excess amount from the complainant and has not handed over the flat to the complainant. After booking and 4 making payments the 1st opposite party much after entering into agreements and receiving hefty amount as stated above they have dropped plans for club house and swimming pool which was to the great shock, dejection and disappointment. The complainant being an Non- Resident Indian (NRI) wanted to purchase a posh apartment with all facilities and had gone ahead with the purchase of the flat on the fond hope that the features represented by the 1st opposite party would be provided to him; if not he would have opted some other residential apartments. The act of the opposite parties has caused acute mental agony and financial hardship to the complainant. There is deficiency in service and unfair trade practice on the part of the opposite party and hence the complaint.
2. The complainant has filed proof affidavit and has marked Exhibits A1 to A9. The advocate commissioner's report is marked as Ex.C1. The 1st opposite party filed version but did not file proof affidavit and so the 1st opposite party was set exparte. The 2nd and 3rd opposite parties did not file version or proof affidavit and they were set exparte.
3. The points for consideration are:-
(1) Whether there is unfair trade practice and deficiency in service on the part of the opposite party as alleged in the complainant?5
(2) Whether the complainant is entitled to claim compensation from the opposite parties?
(3) To what relief the complainant is entitled?4. POINTS No.1 & 2
The complainant has contended that the opposite parties in their official website and brochure advertised that residential apartments are situated in the banks of River Vaigai; and it is a premium residential township providing an ideal opportunity to live in the historic centre of the city yet to enjoy an enviable, modern lifestyle and with meticulous attention in detail and a perfect blend of aesthetics, greenery and value added amenities in the heart of Madurai. The said project is in phases viz. PHASE - 'A' 'B' 'C' 'D'. According to the brochure the project has been completed and possession has started and apartments is ready to move in. Further the opposite parties have represented that the residential apartments shall have the following delightful amenities : - (1). Discover the green outdoor (2). Jogging track (3). Children's Play Area (4). Amphitheatre (5). Splash Pool (6). Club House with gym (7). Facility for indoor games (8). Multipurpose Hall (9). 24 X 7 power back up for apartments (10). Common Area (10). Two automatic lifts (11). Beautiful garden (12). Gorgeous landscape (13). Wide internal road (14) Stilt car parking. Exhibit A-1 is the brochure of the opposite parties about the residential apartments. Perusal of the of Ex. A-1 establishes the 6 contention of the opposite parties regarding the salient features of the residential apartments. The complainant being a Non-Resident India it is quite natural that he opted to purchase the apartment based on the representations of the opposite parties about the residential apartments. The opposite party has quoted Rs.49,56,800/- as the cost of the apartment excluding the service tax and value added tax. The complainant has booked D-603 in Apartment No. 3 measuring 1374 sq. ft. of built-up area located on the 6th floor of "D" Block in the India Bulls Centrum at 2-B, Kothandaraman Mill Road, Mahalipatti, Madurai - 1. The complainant has paid Rs.58,14,207/- and the final payment being Rs. 1,10,222/- made on 20-12-2013 and in support of the payment he has marked series of receipts issued by the opposite parties as Exhibit A-4. On perusal of the Ex. A-4 it is evidenced that the complainant has paid Rs. 58,14,207/- and the final payment being made Rs.1,10,222/- on 20- 12-2013. After collecting the final amount it is not right and proper for the opposite party to demand further additional amount by levying penal interest. The opposite parties have not given any justifiable reply to any of the queries raised by the complainant for demand of additional amount. It is evidenced from the brochures of the opposite parties that the flat is ready for occupation and being so the opposite parties have not furnished proper and acceptable reasons to the complainants for crediting the payments made by the complainant as if the flat is under construction and 7 issuing receipts. Hence we find force in the contention of the complainant that the opposite parties are trying to extract more amount from the complainant under the head of late fee interest. We are inclined to accept the contention of the complainant that the question of levying interest will arise only in case of consumers/customers who booked apartments at the time of starting of the project and not for who purchased constructed and finished apartment. The complainant has made the final payment of Rs.1,10,222/- on 20-12-2013 and to substantiate the same he has produced and marked Exhibit A-7. On perusal of Exhibit A-7 it is clearly evidenced that the opposite party has made the following endorsement which reads as under : -
" Received sum of Rs.1,10,222/- towards final payment for D-603 "
Sd/-.
Apesh Constructions Limited, Cheque Received Subject to realization "
In these circumstances we feel that the demand of further additional amount from the complainant by the opposite parties for handing over the flat to the complaint is not right and proper It would be appropriate for us at this juncture to refer to Section 2 (1) (g) of the Consumer Protection Act - 1986 which defines deficiency in service as follows : -8
"2 (1) (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 as has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service".
On perusing the material records and the above relevant provision we hold that the act of the opposite party is deficiency in service.
5. As far as the contention of the complainant regarding non- provision of the salient features by the opposite parties are concerned, the complainant being an NRI would have naturally preferred to purchase a posh apartment with all facilities and had gone ahead with the purchase of the flat on the fond hope that the features represented by the opposite parties in the brochure would be provided to him, if not he would have opted some other residential apartment. The Advocate Commissioner Report has been filed as C-1. On perusal of the Advocate Commissioner's Report it is clearly evidenced that the opposite parties have not provided the major salient features highlighted by them in their brochure. The Consumer Protection Act defines the terms unfair trade practice in Section 2 (1) (r) as follows: -
"2(1)(r) "unfair trade practice " means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely ; (1). The practice of making any statement, whether orally or in writing or by 9
(j). Falsely represents that the goods are of particular standard, quality, quantity, grade, composition, style or model".
6. A conjoint reading of the facts of the case and the above proviso establish that the opposite parties have lured the complainant by representing about the gorgeous features and later unilaterally withdrawing it after the complainant has made the payment and therefore we find force in the contention of the complainant that the opposite parties have falsely represented and has not provided the salient features and committed unfair trade practice for promoting the sale of the flats.
7. In support of the case the complainant has relied upon the decision of the Hon'ble Supreme Court in the case of Pushpanjali Farms Owners And Residents Association Vs Ansal Properties And Industries reported in CDJ 2013 SC 473 has held as follows : -
" This is a case where we need to consider the impact of the conduct of the opposite party on the buyers of Pushpanjali Farms. No special expertise is required to appreciate that the opposite party would have realized significantly lower price from these farm, had the project been marketed without the country club. Therefore the element of loss suffered by individual farm purchasers cannot be ignored. Simultaneously, we also need to consider the future impact on consumers at large. If the consumer for a were to allow the service providers to benefit from such conduct, the later will be encouraged to renege on their commitments, without any fear of law. As already observed in this case, failure of the opposite party to provide the country club tantamount to deficiency of service as well as unfair trade practice "10
8. The other judgment relied upon the complainant is that of the Hon'ble National Consumer Disputes Redressal Commission, in the case of Pushpanjali Farms Owners And Residents Association Vs Ansal Properties And Industries reported in CDJ 2012 (Cons) Case 490 it has been held as follows : -
" It is our considered opinion that the conduct of the opposite party in first projecting the country club as the special feature of the project and then unilaterally decided to drop it from the project amounts to deficiency in service within the meaning of Section 2 (1) g of the Consumer Protection Act. It would also amount to unfair trade practice within the meaning of Section2 (1) (r) which inter alia includes adoption of unfair method or unfair deception practice including false representation that the service are of a particular standard, quality or grade "
9. The yet another judgment relied upon by the complainant is that of the Hon'ble National Consumer Disputes Redressal Commission, in the case of Sahara India Commercial Corporation Ltd & Ors Vs Mukamala Nataraja Rao & Anothers in F.A.No.393 OF 2006 vide order dated 09-09-2012 has held as follows :
"More importantly, the complete failure on the part of the appellants/ opposite parties to construct and provide the hospital a significant and highly projected feature of the township, without any acceptable explanation, makes it a clear case of deficiency of service as well as unfair trade practice within the meaning of the provision in Section 2 (1) (g) and Section 2 (1)(r) of the Act. It adversely affects a large body of consumers who have been deprived of promised services ..... In view of the detailed examination, we hold that defects in construction of these 11 apartments and long delays in provision of services like adequate potable water, external electrification, parks and gardens, amounts to serious deficiency in service under Section 2 (1)(g) of the Consumer Protection Act - 1986. Consequently, the award of compensation to individual complainants in the impugned order is upheld".
The above judgments relied upon by the complainant are squarely applicable to the instant case. On consideration of the facts and circumstances of the case we are of the considered opinion that the opposite parties have committed unfair trade practice and deficiency in service and the complainant is entitled to claim compensation from the opposite parties and the points are answered accordingly.
10. POINT No:3 As far as the relief of claiming interest for the Rs.58,14,207/- is concerned, the complainant has paid the hefty sum to the opposite parties and yet the flat purchased by him has not been handed over to the complainant. Thus the complainant was not able to enjoy the fruits of his hefty investment and therefore we are of the opinion that the complainant is entitled to get interest on the above said amount. However, we feel that the claim of interest at the rate of 18 % per annum by the complainant is on the higher side and in the circumstances of the case we feel that interest at the rate of 12 % per annum on Rs.58,14,207/- from the date of payment till date of handing over of the flat to the complainant would be just and reasonable. 12
11. Now coming to the quantum of compensation the complainant has sought Rs.20,00,000/- as compensation for mental agony suffered by him as he has suffered acute mental agony due to non-handing over of the flat to him even after making the entire payment. We are of the opinion that the complainant would have definitely suffered mental agony due to the above act of the opposite parties. In this regard it would be appropriate for us to refer the judgment rendered by the Hon'ble Supreme Court in the case of Ghaziabad Development vs Balbir Singh reported (2004) 5 SCC 65 wherein the court has held that "The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law." We find the above judgement to be appropriate for us to arrive at the quantum of compensation. In view of the above and considering the facts and circumstances of the complaint we feel that a 13 sum of Rs.3,00,000/- would be the just and reasonable compensation for loss suffered by the complainant.
12. As far the relief seeking Rs.25,000/- as cost of this proceeding the complainant has been forced to approach this Commission's and the complainant would have definitely incurred expenditure on the count of payment of fee Rs. 2,000/- for lodging the complaint and has paid Rs. 5,000/- towards the Advocate Commissioner's fee and apart from that he would paid legal and other miscellaneous filing expenses, taking into account all these expenses we feel that a sum of Rs. 20,000/- as cost of this proceedings would reasonable and proper and the point is answered accordingly.
13. In the result, the complaint is partly allowed directing the opposite parties jointly and severally;
1) To hand over possession of flat D-603 completed in all aspects in Apartment No. 3. 6th Floor of "D" Block in India Bulls Centrum at 2-B, Kothandraman Mill Road, Mahalipatti, Madurai 1 to the complainant without insisting on any additional amount.
2) To pay interest on Rs. 58,14,207/- (Rupees fifty eight lakhs fourteen thousand two hundred and seven only) at the rate of 12 % per annum to the complainant from the date of payment till the date of handing over possession of the flat.
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3). To pay a sum of Rs.3,00,000/- (Rupees three lakhs only) as compensation to the complainant for the mental agony suffered by him and
4) To pay a sum of Rs.20,000/- (Rupees twenty thousand only) as costs of the proceedings.
Time - for compliance two months from the date of receipt of copy of this order.
Sd/-xxxxxxxxxx Sd/-xxxxxxxxxx
M.MURUGESAN, J. JAYARAM,
Member. Presiding Judicial Member.
List of documents filed by the complainant:
EX.A-1. -- Brochure.
EX.A-2 20-02-2012 Sale Agreement.
EX.A-3 20-02-2012 Construction Agreement.
EX.A-4 -- Series of receipts issued by OP No.1.
EX.A-5 14-10-2013 Letter from the OP's .
EX.A-6 13-09-2013 Sale Deed in favour of complainant.
EX.A-7 20-12-2013 Acknowledgement for final payment.
EX.A-8 30-11-2012 Notice from OP.
EX.A-9 06-12-2008 Power of Attorney.
Sd/-xxxxxxxxxx Sd/-xxxxxxxxxx
M.MURUGESAN, J. JAYARAM,
Member. Presiding Judicial Member.
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