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P. Sivalingam & Another v/s M/s. Shree Mangalam Builders & Real Estate Ltd, Rep. by Mahaveer Chand Kothari, Director, T. Nagar

    C.C. No.234 of 2017

    Decided On, 25 January 2022

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, MEMBER

    For the Complainants: S.N. Subramani, Advocate. For the Opposite Parties: Exparte.

Judgment Text

(This complaint coming before us for final hearing on 30.12.2021 and on hearing the arguments of complainant and on perusing the material records, this Commission made the following order :-)

Dr. S.M. Latha Maheswari, Member

1. The complaint was filed alleging deficiency in service against the opposite party by the complainants with a prayer as follows:-

a. To direct the opposite party to return the extra amount received over and above the amount calculated at the time of booking, Rs.21,89,063/- with 18% interest;

b. Penalty of 18% for delayed handing over possession from 1.1.2013 to till date;

c. Rs.25 lakhs as compensation for mental agony, physical and mental harassment;

d. To comply with all the terms and conditions of the agreement and to attend the defects in the construction;

e. To pay Rs.50,000/- towards cost.

Brief facts culled out from the complaint is as follows :-

2. The complainants who are husband and wife had preferred the present complaint stating that during the month of May 2010, the opposite party who was engaged in the Real estate business offered them flats for sale named as “Mangalam Moon Light Apartments” situated at No.16, Hospital Road, Ambattur, Chennai. The offer was made by the opposite party for 1 BHK, 2BHK and 3BHK available in 7 blocks and the rate was quoted as Rs.2900/- per sq. ft. It was also promised by them that the possession would be handed over in 18 months i.e. in December 2012 with various amenities. The complainant visited the construction site and after inspecting the model flat decided to buy a 3BHK apartment in Block G, Flat 403, with 1068 sq. ft. and also paid booking advance of Rs.2000/- and received the receipt from the opposite party. After 10 days the complainant paid a further amount of Rs.48,000/- by way of cheque, but the opposite party intimated that the flat booked by the complainant was already sold to another party and hence could not sell the same to the complainant. Inspite of repeated requests the complainant was not offered the said flat but was allotted a smaller 3 BHK apartment in block G, flat No. 405 with 974 sq. ft. The construction agreement was entered on 14.1.2012 and the opposite parties agreed to complete the construction as per the agreement on or before 31.12.2012. After certain period while surfing the internet the complainants came to know that the flat earlier booked was still available for sale and when the opposite party was questioned they demanded Rs. 4500/- per sq.ft instead of Rs. 2900/-. The complainants made repeated negotiations to the opposite party for the payment of Rs.2900/- for the difference of 94 sq. ft. But, the opposite party demanded extra payment of 65,000/- which was paid by the complainants with protest and finally a memorandum of understanding was signed between the parties for the exchange of flat from Block G, flat 405 of 974 sq. ft. to block G flat 403 of 1068 sq.ft. The complainants obtained housing loan from State Bank of Mysore and with all other savings had paid the sale price without any delay as and when demanded by the opposite parties. However, the flat was not handed over after completing the construction as agreed on or before 31.1.2012. In April 2015, the opposite party asked the complainants to visit the flat and on inspection it was found that there were lot of patch works and damages and the construction was improper. The complainants submitted that without basic amenities such as water, lift with power back up etc., the opposite party requested to take over the possession of the flat. Further, the amenities such as elevator power back up, swimming pool, club house, landscape, RO water supply, Gymnasium, Johnson Elevators, were not provided by the builder till date. Thus even after taking possession of the flat, the complainants had to vacate the premises and to move on to another place. All the other flat owners jointly made complaints to the opposite party about the poor workmanship, deviation and incomplete work etc. In response, the opposite party assured that he would complete all the amenities stage by stage before 31.12.2015. In February 2015, the builder informed the complainants that the flat is ready, but when inspected both the flat and the amenties were incomplete. Later in September 2015, the document and key was handed over to the complainants but still there were many incomplete works including the amenities. Until 31.12.2015, the opposite party failed to complete all the pending works and to provide the amenities, though the complainants had paid the entire amount. Thus the present complaint was filed for the reliefs as mentioned above.

3. The opposite party inspite of sufficient notice failed to appear before this Commission and hence he was set ex-parte for non appearance and for non-filing of written version.

4. The complainant filed proof affidavit and submitted documents marked as Ex.A.1 to A.12.

5. Point for consideration :

Whether the opposite party has committed any deficiency in service and if so to what relief the complainant is entitled?

6. Point :-

The complainant along with the complaint pleadings had filed the following documents in proof of his contentions which are as follows:

i. The payment receipt for Rs.2000/- issued by the opposite party for Rs.2000/- dated 18.5.2010 was marked as Ex.A.1;

ii. The payment receipt for Rs.48,000/- paid as booking advance dated 27.5.2010 was marked as Ex.A.2;

iii. The sale deed registered for UDS for Block G flat, 405 dated 18.12.2013 was marked as Ex.A.3;

iv. The Avadi Municipality tax receipt, Block G flat, 405 dated 1.4.2014 was marked as Ex.A.4;

v. The partial completion certificate issued by CMDA, dated 17.12.2014 was marked as Ex.A.5;

vi. The construction agreement dated 6.4.2015 entered and registered between the complainant and the opposite party was marked as Ex.A.6;

vii. The total amount calculation and the payment schedule for the flat Block G flat, 405 was marked as Ex.A.7;

viii. The details of vacant flats sent by email by the opposite party dated 29.10.2013 was marked as Ex.A.8;

ix. The demand notice seeking extra amount of Rs.8,57,650/- for the flat Block G 403, dated 3.2.2015 was marked as Ex.A.9;

x. The letter issued by the opposite party with regard to completion certificate and about carrying out the maintenance work and completing the pending works with regard to amenities dated 12.9.2015 was marked as Ex.A.10;

xi. The legal notice issued by the complainant dated 26.6.2016 was marked as Ex.A.11;

xii. The reply notice dated 9.8.2016 issued by the opposite party was marked as Ex.A.12;

7. The Learned Counsel for the complainant argued that initially they have booked a 3 BHK apartment measuring 1068 sq. ft. in Block G Flat No.403 at the rate of Rs.2,900/- per sq. ft. and had paid Rs.2,000/- as booking advance and has filed receipt Ex.A1 in which, it has been specifically mentioned that the flat booked was Flat No.403. However, when the balance booking advance of Rs.48,000/- was paid the builder/ opposite party informed them that the said flat was not available for sale as it was already sold to a third party and pressurized the complainant to purchase another small flat measuring 974 sq. ft. i.e. Flat G 403. Left with no other option, the complainant booked the Flat G 403. He relied upon Ex.A2, the receipt issued by the opposite party in which, the flat purchased was mentioned as Flat G 405. Thus he argued that purposefully the opposite party made the complainant to book an alternative flat. However when the complainant was surfing the net he found that flat No.403 was available for sale and when he contacted the opposite party he said it is available for sale but at the rate of Rs.4,500/- per sq. ft. When the complainant after a prolonged discussion agreed for the purchase of Flat 403 for an enhanced rate, Rs.65,000/- was demanded as extra payment by the opposite party which was duly paid by the complainant. Even after paying the amounts as demanded by the opposite party, the flat was not handed over after completion as per the agreed terms. Even when it was handed over after a long delay the flat was in an incomplete stage and also consisted of various defects and with lack of amenities as promised at the time of booking. The following amenities such as,

a. Elevator power back up

b. Swimming pool

c. Club house

d. Land scape

e. RO water supply to the flat

f. Walking tack 24/7 power backup

g. Gymnasium

h. Johnson Elevators

was never provided till date.

Thus, he prayed for the complaint to be allowed and to direct the opposite party to repay the extra amount of Rs.2,18,963/- charged by them for change of flat, to pay the interest at the rate of 18% for the delayed handing over of possession which amounts to Rs.35,13,372/- and to pay a compensation of Rs.25,00,000/- for the mental agony and inconvenience along with cost of the complaint.

8. We perused the pleadings and documents submitted by the complainant. The opposite party never appeared and hence was set ex-parte. Only for the reason that the opposite party did not contest the case of complainant, the complainant cannot succeed in his case unless he proves the same by admissible evidence. Though it was argued that the builder played fraud in enhancing the rate per sq. ft. in booking the flat G 403 measuring 1,068 sq. ft., except Ex.A1 & Ex.A2 there is no sufficient pleadings or documents produced by the complainant in proof of the same. No document was submitted by the complainant wherein the opposite party had referred to the change of the flat and enhancement of the rate per sq. ft. from Rs. 2900 /- to Rs.4500/-. In such circumstances we are unable to accept the case of the complainant that the builder had played fraud to get an enhanced rate per sq. ft. for the flat purchased by him.

9. The next contention raised by the complainant with regard to defects in the construction and the lack of amenities not provided as per the terms of the Construction Agreement could also not to be entertained as the complainant had not taken any steps to prove it by the production of any documentary evidence. The complainant ought to have sought the assistance of the Consumer Commission to appoint an Advocate Commissioner along with a qualified Engineer to inspect the premises and to file a detailed report about the status of construction to substantiate his contentions that there are defects in the construction and that the amenities are not provided by the opposite party. H

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ence due to lack of evidence we are unable to accept the arguments of the complainant. 10. Further, the case of the complainant involves lot of evidence which cannot be decided in a Consumer Commission where summary procedure is adopted. The factual position was required to be established by leading oral and documentary evidence before appropriate civil Court. We refer to a decision of the Apex Court made in Synco Industries v. State Bank of Bikaner and Jaipur and Ors. I (2002) CPJ 16 (SC), in which the Supreme Court had observed that where complicated questions of law and facts are involved and which require elaborate evidence the Forum under the Consumer Protection Act may not be a proper Forum to dispose of such a case in a summary fashion. Therefore, civil Court would be the appropriate forum for the complainant to prove his case for claim of extra amount charged and other reliefs. Hence, we hold that the complainant has not proved that the opposite party has committed deficiency in service and that the complainant is not entitled to any relief. Thus, the point is answered accordingly against the complainant. In the result, this complaint is dismissed. No costs.