State Consumer Disputes Redressal Commission
M/S. Macro Marvel Projects Ltd.,813, ... vs Balasubramanian,Rep. By Power Agent ... on 30 December, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER Tmt.Vasugi Ramanan, M.A., B.L., MEMBER II FA.290/2010 & F.A.291/2010 (Against the order in CC.34/2002 & C.C.35/2002 on the file of DCDRC, Chennai [North]) DATED THIS THE 30th DAY OF DECEMBER 2011 COMMON ORDERF.A.290/2010
M/s. Macro Marvel Projects Ltd., | Appellant/Opposite Party Rep. by its Managing Director M.Muthian, | Regd.
Office Glenden Place, | 813, Poonamallee High Road, | Chennai 600 010. | Vs. Balasubramanian, | Respondent/complainant Rep. by Power Agent R.Aghoramurthy, | E-4, Triveni Apartments, | No.62, Alwarpet Street, | Chennai 600 018. | FA.291/2010 M/s. Macro Marvel Projects Ltd., | Appellant/Opposite Party Rep. by its Managing Director M.Muthian, | Regd.
Office Glenden Place, | 813, Poonamallee High Road, | Chennai 600 010. | Vs. M. Vasudevan, | Respondent/complainant No.195, Scientist Apartments, | Central Avenue, Dae Township, | Kalpakkam 603 102. | This appeal coming before us for hearing finally on 05.12.2011, upon hearing the arguments of the counsels on eitherside and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant/O.P. : M/s.P.Elango, Advocate.
Counsel for the Respondent/Complainant : M/s.R.Venkatraman, Advocate.
M. THANIKACHALAM J. PRESIDENT
1. The opposite party in C.C.34/2002 and C.C.35/2002 on the file of the District Consumer Disputes Redressal Forum, Chennai [North] [who is the one and the same] are the appellants in F.A.290/2010 and F.A.291/2010.
2. As agreed, both the cases were heard together since plea and counterplea are more or less similar in nature.
3. The complainant[s] case in brief:-
The complainant[s], induced by the oral and written representation mad by the opposite party, have agreed to take each, one independent house, set amidst 21 acres of land with 1200 sq.ft. of land with built up area of 1118 sq.ft. with covered car parking for the price of Rs.12 lakhs, in addition payment of Rs.1 lakh for Stamp Duty, Registration, TNEB charges and Panchayat expenses etc., Accordingly, an agreement for construction was entered into between the parties on 14.11.98, wherein, the opposite party had agreed to build a house as described in the C Schedule of the Construction Agreement.
4. The opposite party as agreed, has not provided the amenities, and they has also used sub-stand materials, resulting cracks and damage in the building. The opposite party also collected for water tap more than the MRP price.
The complainant[s] have paid the agreed consideration, then and there and despite, the opposite party by adopting coercive illegal method, had collected from each complainant excess cost of Rs.64,000/- which they are not entitled to collect as per the agreement, which should be ordered to be refunded, in addition, the amount collected over and above MRP rate for some articles as well as they should be directed, to provide the facilities promised as per the agreement and brochures, in addition, a sum of Rs.3,75,000/- as compensation for not providing the facilities, as well as collecting excess amount and causing mental agony. On the above basis, the complainant in C.C.34/2002 had claimed a total sum of Rs.4,50,878/- and the complainant in C.C.35/2002 had claimed a total sum of Rs.4,65,252/-, in addition to, seeking directions to provide certain facilities, as detailed in the prayer paragraphs. Thus, two separate consumer complaints have been filed before the District Forum, Chennai [North].
5. The opposite party/appellant in both the cases, in the Written Version and in Additional Written Version, would contend as follows in brief:
As per the agreement, any dispute assigning out of the agreement, shall be referred to Arbitration, which is binding upon the parties and in this view, instead of referring the matter to the Arbitrator, filing the consumer complaint is not maintainable. The complaint is bad for non-joinder of necessary parties. It is true, the plot size for independent house was 1200 sq.ft. and the built up area was 1118 sq.ft. and the price range was Rs.12.5 lakhs. Because of the dispute between the land owners and the developer, the original project has been shrunken into 39 independent houses, in which, complainant[s] had, each, purchased one house. As agreed, the opposite party had paid the development charges, towards providing infrastructure facilities to the said Nandambakkam Town Panchayat and therefore, it is not obligatory on the part of the opposite party to provide all the infrastructure facilities now claimed by the complainant[s]. The only facility which is yet to be provide is Club House and the opposite party undertakes to provide the said facilities as per the terms and conditions of the agreement.
6. As per the construction agreement, the complainant has to pay all amounts due, failing which, he is not entitled for the possession of the house.
The opposite party calculating the excess built up area, claimed more amount in terms of the agreement, but finally the opposite party accepted for a sum of Rs.64,000/- as full and final settlement of the claim towards the earlier claim of Rs.1,17,000/-, after mutual discussion and agreement and this being the admitted position, the complainants are not entitled to any refund of the said amount, labeling the same as collected under coercion or illegally.
7. The opposite party cannot be held responsible if the quality of water is not potable. There were no defects in the building at the time of delivery and the alleged deficiencies are invented for the purpose of the case. Even now, the opposite party is willing to return the entire amount, paid by the complainant[s] provided the complainant[s] executes Sale Deed. As per the documents, possession was taken, free from all defects and if there was any subsequent defect due to poor workmanship, the opposite party is not responsible since quality materials were used. The opposite party had attended the various minor defects, when it was pointed out and he is not responsible for air line crack, which should have occurred due to seasonal changes. The other allegations are denied as false, since the opposite party has not committed any deficiency in service, they are not entitled to pay any amount much less any compensation, thereby praying for the dismissal of the complaint.
8. The District Forum by its separate order dated 26.08.2009, has recorded independent findings, as if, the opposite party had collected excess amount than the agreed amount, thereby directed to refund a sum Rs.64,000/- to each complainant. Similarly, it has also come to the conclusion that over and above the MRP rate for health faucet, amounts were collected, that also should be refunded. Based upon the Commissioners report, finding some deficiency on the part of the opposite party, the District Forum felt that the defects noted by the Commissioner and Civil Engineer should be rectified, for which also, directions were given, in addition, to pay a sum of Rs.50,000/- as compensation, for mental agony with costs of Rs.5,000/-, not recording specific reasons for what deficiency committed, the complainant[s] are entitled to so much of amount. Aggrieved by the above said orders, as said above, the opposite party has filed two appeals, questioning the findings of the District Forum, on various grounds, including, challenging the Commissioners Report also, since both the parties are not agreed with the Commissioners report.
9. In the complaint, as pointed out supra, many reliefs were sought for including providing of water treatment scheme, rainwater harvest as well as to provide amenities and facilities as listed in the brochure. The District Forum has not granted all those reliefs though it has come to the conclusion, that not providing those things, would amount to deficiency in service. Probably for that alone, the compensation was granted, though we find no specific direction, to provide the amenities and facilities. Aggrieved by the refusal, the complainant[s] have not preferred any appeal and therefore, we feel, it is not necessary for us, to go into detail except regarding the reliefs granted, which alone are challenged by the opposite party.
10. The opposite party had developed and promoted, an area, wherein, he has offered independent houses to the needy, naming the project Wood Creek County, and we are not very much concerned about its history, how the major project shrunken, as pleaded by the opposite party. Admittedly as evidenced by Ex.A2-Allotment Letter [in both the cases] the complainant in C.C.34/2002 by name A. Balasubramanian was given an Allotment Letter, allotting an independent House No.IH-48 and for M. Vasudevan, allotting an independent House No.IH-49. As per the these Allotment Letter[s], the proposed area of the independent house was 1117 sq.ft. and the agreed price for both houses was Rs.12 lakhs, in addition to, another sum of Rs.1 lakh towards Registration and Stamp Duty charges. Based upon these Allotment Letter[s], an agreement for construction, was entered into between the parties independently, as evidenced by Ex.A4, in both the cases, on 14.11.98, under which, the opposite party had agreed to construct an independent house, with a built up area of 1118 sq.ft. in Plot No.21 for a total consideration of Rs.12 lakhs, as described in Schedule-C. Clause-4 of the Agreement reads The PARTY OF THE SECOND PART should settle the entire dues to the PARTY OF THE FIRST PART inclusive of the cost of any additional work done in the schedule C and on such settlement only possession of constructed house as mentioned in Schedule C will be given to the PARTY OF THE SECOND PART by the PARTY OF THE FIRST PART, thereby contemplating payment should precede, possession as well as permitting additional construction also, for which, rate is fixed under Clause-7 of the agreement at Rs.750/- sq.ft. Therefore, if any additional construction had been put up, at the request of the complainant or out of necessity, the complainant should pay the costs for the extra built up area, in addition to the agreed amount of Rs.12 lakhs, and there cannot be any dispute since the terms and conditions of the agreement are not under challenge, either before the District Forum or before us.
11. In the C Schedule, while defining Built up area, it is said Built-up area of the House 1118 sq.ft. (exclusive of car park, head room and built up cupboard totaling 176 sq.ft.), thereby indicating Car Parking, head room and built up cupboard should be construed as additional construction. As per the specification, admittedly, though there was some problem, the opposite party getting approval, completed the construction and possession was given to the complainant[s] on 11.01.2001.
Before handing over possession, there was some dispute between the parties regarding the built up area, and additional construction. The exchange of notices and letters would reveal after persuasion or otherwise, the complainant[s] have paid a sum of Rs.64,000/- for additional construction and receiving the amount, in full and final settlement, admittedly without any reservation, possession was given to the complainant[s], which is also not in dispute. After taking possession of the house, labeling the collection of Rs.64,000/- as coercive and illegal collection as well as alleging deficiency, as said above complaints were filed, which ended in partial success. Therefore, the main dispute now urged before us was regarding the built up area as well as additional construction.
12. As pointed out, quoting the agreement, built up area agreed to be constructed, within the limit of Rs.12 lakhs was only 1118 sq.ft. For this built up area alone, total consideration of Rs.12 lakhs was mentioned in Clause-3 of the Agreement, wherein, it is said towards the costs of construction of house which is mentioned in the Schedule C. Schedule C says exclusive of 176 sq.ft. which covers Car Parking, Head Room, built up cupboard. Therefore, it may not proper on the part of the complainant[s] to claim, that the opposite party had agreed to construct the building as handed over only for Rs.12 lakhs including car parking, head room, built up cupboard. Though the cupboard may form part of the building, care park being under the first floor, the parties while entering into an agreement, have specifically agreed to exclude that area from the built up area, and similarly head room also.
Therefore, the opposite party is justified in claiming extra costs for 176 sq.ft., for which alone, as full and final settlement, Rs.64,000/- was paid, wherein, there was reservation.
13. The documents produced before us also would indicate that the complainant had agreed to pay for the excess built up area, though supplementary agreement was not executed, between the parties as mentioned in Ex.A14.
While taking possession also, the complainant has not reserved any right, have not questioned the excess amount collected, whereas they have stated that they have inspected the house, taken possession of the house in good condition, free from all defects.
Even before taking possession, this question was raised. It is not the case of the complainant that the alleged excess area 176 sq.ft. was not available or the built up area is only 1118 sq.ft. alone. In Ex.A16, the opposite party has explained the exclusive definition, that 1118 sq.ft. does not include 3 areas namely car porch, head room and built in cup board of approximately 176 sq.ft., thereby they claimed unless the complainant settled the dues, they will not hand over possession.
They have also informed under a letter dated 20.11.2000, what is the ground floor area, what is the first floor area, committed in the brochure and agreement, indicating other built up area and actual built up area available at the site, as 1274 sq.ft. On the basis of that alone, amounts were calculated and thereby as evidenced by Ex.A24, No Due Certificate was issued. The complainant in C.C.35/2002 also paid Rs.64,000/- in full and final settlement of the amounts, requesting to hand over possession without any reservation, on which basis, Ex.A23 No Due Certificate was issued. Therefore, when the agreement said excluding the car park, head room as well as built up cupboard, when they are provided, it is for the complainant to pay the amount and accordingly, they have paid, which cannot be termed as excess collection, that too, by coercion or illegal method, for which, we have no semblance of evidence.
14. As seen from Ex.A6 in C.C.34/2002, the complainant had accepted the plan which indicates, the plot area, built up area, for which, approval was sought for, total built up area 1294 sq.ft. which is the case in another complaint also. Though, an approval was obtained for 1294 sq.ft. as per the agreement, as per the rate fixed, three areas are excluded for the purpose of the construction, explicitly, not hiding anything. Thus it is evident, the complainant[s] knowing fully well, that the above three areas are excluded in the C Schedule, had agreed, paid the amount and subsequently also paid the amount, which they are not entitled to get back by way of refund, which was not properly considered by the District Forum. As seen from the order of the District Forum, it had recorded a finding, based upon C Schedule It would be clear that an built up area of the house was only 1118 sq.ft. and the car park, head room and built up covered car park totally 167 sq.ft. are excluded from the area of the built up house. Thus concluding, abruptly the District Forum has come to the conclusion, collection of an additional amount for 176 sq.ft. amounts to violation of the construction agreement, which we are unable to understand. If the agreement has not specifically excluded the area or if the agreement had stated that the total built up area is 1294 sq.ft., then only it can be concluded that the Developers is not entitled to the excess amount, which is not the case. Further, we find no materials, regarding coercive collection or illegal collection and in fact as full and final settlement amount paid without any protest and therefore, the complainant[s] are estopped from claiming that amount.
Hence, the order of the District Forum, directing the opposite party to refund Rs.64,000/-, to each complainant is not in accordance with facts and law and liable to be upset.
15. As far as the refund of the amount over and above MRP also, it is erroneous in our considered opinion. It is not the case of the complainant that they have purchased the items independently from the opposite party and they had sold over and above MRP.
The costs of the health faucet or any other thing will come within the construction costs, and that should cover within Rs.12 lakhs. Therefore, though the opposite party had calculated the amount so, that cannot be separated from the total construction costs, and in this view of the matter, we are of the considered opinion, the District Forum committed an error, in ordering the refund of some amount, as if, the complainant had collected over and above MRP, which kind of question does not arise for consideration.
16. As far as another direction is concerned, regarding the rectification of the defects, there appears to be mistake also. Possession was handed over on 11.01.2001 and at that time, building was in good condition, as per the Possession Certificate. The Commissioner inspected the premises in the year 2003. Therefore, the superficial cracks, seasonal cracks if any noticed by Advocate Commissioner or the Civil Engineer, as the case may be, cannot be termed as deficiency in service, warranting to pay a sum of Rs.50,000/- as compensation. As seen from the Advocate Commissioners Report, he has given in both the case, the only availability and non-availability of the facilities, for which, there is no direction, as pointed by supra. As seen from the Engineers Report-Ex.C2 in both the cases, there were only sill crack, seasoning cracks, not significantly affecting the building. Therefore, ordering the opposite party to rectify all the defects, as if, they have committed or occurred due to improper construction, may not be proper and in this view, we are inclined to modify the direction to rectify the defects, excluding superficial cracks, seasonal crack and insignificant cracks, restricting the directions only regarding the substantial crack, affecting the stability building,, as indicated by the Civil Engineer by name C.Ganesh, in both the cases.
In view of our findings supra since there was no serious deficiency or negligence, we feel, granting compensation of Rs.50,000/- may not be proper and considering the non-availability of the facilities promised, assured, we restrict compensation for mental agony and non-availability of the facilities, as noted by Advocate Commissioner, at Rs.30,000/-, otherwise confirming the order of the District Forum, with above observation.
17. In the result, both the appeals are allowed in part, setting aside the order of refund, in both the case and modifying the order of compensation from Rs.50,000/- to Rs.30,000/- in each case, otherwise confirming the order of the District Forum as indicated above, regarding rectification of defects, directing the parties to bear their respective costs in these appeals.
VASUGI RAMANAN J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT