M/S. Kalyanasundaram,

14, Secretariat Colony,

Old Ambattur.

Chennai – 600 053. Complainant



Vs.



M/S. Aditya Foundations,

Rep. by its Partner A.Chinnadurai,

A-79, First Floor, III Avenue,

Anna Nagar,

Chennai – 600 012.



A.Chinnadurai,

S/o. Late Ananda Vijayan,

Partner M/S. Aditya Foundations,

No.3, Sunderlal Nehatha Colony,

Kilpauk,

Chennai – 600 017.



Malathy Ram Kumar,

W/O. J. Ram Kumar,

Partner M/S. Aditya Foundations,

No.5, Parthasarathypuram,

Opp. North Usman Road,

T.Nagar,

Chennai – 600 017.



T. Rajendran,

S/O. Thigaraja Pillai,

Partner M/S. Aditya Foundations,

Plot No.1993, J T 5-A,

Anna Nagar West, Chennai.



Sheela Rani Vecher,

W/O. K.L. Vacher,

Partner M/S. Aditya Foundations,

Jothy Apartments,

No.21/5, Third Main Road,

Kasturi Nagar,

Chennai – 600 070



G. Usha,

W/O. P. Gunasekaran,

Partner M/S. Aditya Foundations,

Plot No.271, 3rd Street,

Murugu Nagar,

Chennai – 600 042.



G.R. Swarna Ravi Krishnan,

W/O. J. Ravi Krishnan,

Partner M/S. Aditya Foundations,

No.25, Puspha Nagar Main Road,

Nungambakkam,

Chennai – 600 034



S. Jayaprakash,

S/O. A Sridhar,

Partner M/S. Aditya Foundations,

AA-147, 3rd Avenue,

Anna Nagar,

Chennai – 600 040.



J. Ram Kumar,

S/O. J. Jeenanathan,

Partner M/S. Aditya Foundations,

No.5, Parthasarathypuram,

T. Nagar,

Chennai – 600 017. Opposite Parties



Date of complaint 09.02.2005.





M/S. A. Thayaparan Counsel for the complainant



M/S. D. Jeeva &

Balasubramanian Counsel for the 1,2,3,5,7

And 9 Opposite Parties.



Ex Parte 4th Opposite Party.



M/S. Uma Maheswari Counsel for the 6th & 8th

Opposite parties

The complainant is the absolute owner of the land bearing plot No 19 in Ambattur Village Chengalpattu to an extent of 13.950 sq.ft. He entered into an agreement with Ist opposite party for developing the land and construction of flats . As per the agreement the complainant shall be entitled to 30% of the constructed flats and the Ist opposite party developer shall be entitled to 70% of the constructed area. But the Ist opposite party after constructing the flat failed to hand over 30% of the built up area as per the condition of the agreement. The Ist Opposite party handed over only 7 flats to the complainant on 6.10.1999. On measuring the flats it was found that only 4,380 Sq.ft of built up area was handed over instead of 5.132 sq.ft as agreed under the agreement.

The complainant issued a notice to the Ist opposite party . But the parties have agreed to resolve the dispute by appointing arbitrator . One M/S. V. Sundararajulu and Associates was appointed as Arbitrator. The arbitrator after measuring the flats submitted his report dated 10.2.2004. According to the report only 4000 sq feet was handed over to the complainant instead of 5,424 sq.ft Therefore the complainant is entitled for1,424 sq.ft of built up area. The cost of the area is estimated at Rs. 9,96,800/-. Non delivery of the area of 1,424 sq.ft amounts to deficiency in service. The complainant filed this complaint for delivery of 1424 sq.ft constructed area or in the alternative to pay Rs. 9,96,800/- being the value of the land and 1,00,000/- as damages and Rs. 1,00,000/- for mental agony.

2. The Ist opposite party filed version and contended inter alia they have entered into an agreement with the complainant and after constructing the flats, the Ist Opposite party handed over 7 flats to the complainant being 30% of the total built up area. The opposite party had also deposited a sum of Rs. 2,25,000/- as refundable deposit with the complainant. The complainant has to pay 15,000/- per flat towards the E,.B and water connection charges. As per the approved plan builder has built17,108sq.ft and handed over 4,843 Sq.ft to the complainant. The short fall of 289 sq.ft has to be adjusted in the deposit amount of Rs. 3,30,000/- payable by the complainant. Because of some variation in the construction the Ist opposite party could not deliver 289 sq.ft of area . The opposite party is not aware of the report of the arbitrator .There is no deficiency in service on the part of the opposite party. The version of opposite party is adopted by opposite parties 2,3,5,7 and 9.

3. 6th opposite party filed version and contended that he

has resigned from the partnership firm in the year 1996 and is not aware of agreement between the complainant and the Ist opposite party There is no deficiency in service on the part of the opposite party.

4.8th opposite party filed version and contended that he has resigned from the partnership firm of the Ist O.P. in the year 1996 and is not aware of the agreement between the complainant and the Ist opposite party and there is no deficiency service on the part of the 8th opposite party

5. Proof Affidavits have been filed by the complainant and the opposite parties. Ex. A1 to A5 were marked on the side of the complainant. Ex.B1 to B9 were marked on the side of the opposite parties.

6. The points that arise for considerations are:

1. Whether there is any deficiency in service on the part of the opposite parties?

2. To what relief the complainant is entitled to ?

7 Point No: 1

The complainant being the owner of plot No 19 to an extent of Rs. 13.950 Sq.ft in Ambattur village Chengalpattu entered into an agreement with the Ist opposite party to develop and construct flats and allot 30 % of the constructed flats to the complainant. Accordingly the Ist opposite party constructed the flats and allotted 7 flats to the complainant being 30% of the share. The constructed flats were handed over to the complainant.

The grievance of the complainant is that the total constructed area was 8080 sq.ft as against 7180 sq.ft approved by the CMDA and as per the measurements the complainant is entitled to 5,424 sq.ft, whereas he was given only 4000 sq.ft .Hence 1,424 is still due to the complainant. The complaint relied upon Ex. A5 report of an arbitrator. But the arbitrator was not appointed by the complainant and the Ist opposite party. The report did not show that arbitrator was appointed with the consent of both parties. It is only an expart report which is not binding on the opposite party. Ex. B5 is the CMDA approved plan. As per the plan the approved area for the construction was 7,180 sq.ft. The complainant is disputing the extent of land delivered to him by the Ist opposite party . He should have taken steps for appointment of advocate commissioner with the help of engineer to measure the flats but the complainant has not filed any petition for appointment of Advocate commissioner. He has relied upon Ex.A5 the report of the engineer who had inspected the flats and submitted a report without the knowledge of the Ist Opposite party. We are unable to accept the report Ex.A5 because it is only an expart report However the complainant has admitted in the version that there was short fall of the 289 sq.ft in the share of the complainant. This act of the opposite party amounts to deficiency in service. The point is answered accordingly


8. Point No:2

In the result, the complaint is allowed. The Ist opposite party is directed to handover 289 sq.ft to the complainant or in the alternative to pay the cost of the above said extent of land at the rate of 700 per sq.ft and also directed to pay compensation of Rs. 50,000/- for mental agony and Rs. 3000/- as cost of the complaint to the complainant The amount shall be payable within six weeks from the date of receipt of copy of this order failing

which the amount shall carry interest at the rate of 9% per annum till the date of payment.