Tamil Nadu

South Chennai

CC/434/2015

M/s.Lalchand S/o Mr.Radhumull - Complainant(s)

Versus

M/s.Orgin ifts Private Ltd - Opp.Party(s)

K.Kanesan , P.Asha Rao

03 Mar 2020

ORDER

                                                                             Date of filing      : 13.11.2015

                                                                               Date of disposal : 03.03.2020

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.434/2015

DATED THIS TUESDAY THE 03^RD DAY OF MARCH 2020

                                 

1. Mr. Lalchand,

S/o. Mr. Radhumull,

 

2. Mr. Radhumull,

S/o. Mr. Khemchand,

Both residing at:-

Flat No.2B, Second Floor,

Door No.14, 5^th Main Road,

Kasthuriba Nagar,

Adyar,

Chennai – 600 020.                                                       .. Complainants.                        

..Versus..

 

M/s. ORIGIN IFTS PRIVATE LIIMITED,

Represented by its Chairman & Managing Director,

No.2/3, First Main Road,

Nehru Nagar,

Adyar,

Chennai – 600 020.                                                  ..  Opposite party.

 

Counsel for the complainants   : M/s. K. Ganesan & another

Counsel for the opposite party : M/s. N.P. Vijaykumar & others

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to carry out / repairs all the defects as mentioned in para 11 of the complaint and to pay a sum of Rs.10,00,000/- towards compensation for unfair trade practice, mental agony, loss of comforts, physical strain and strain with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainants submit that on 24.09.2012, they have entered into an agreement for construction with the opposite party for constructing a flat No.2-B, “Surabhi Apartments” in the Second Floor with super built up area of 1785 sq. ft inclusive of car parking slot for a consideration of Rs.48,55,200/.  The complainants submit that as per Clause 2 of the Agreement, the opposite party specifically agreed for the payment of construction cost as per stage wise.   Similarly, as per Clause 7, the opposite party specifically agreed and undertaken that they shall adhere to standard of good construction practice and safety norms throughout the project and agreed specification with amenities contained in schedule ‘C’.  As per Clause 8, the opposite party is responsible for procuring of quality building and scaffolding materials.   As per Clause 11, the opposite party had undertaken to complete the construction as per the specification within a period of 15 months from the date of Agreement.   The opposite party as a Power of Attorney of the owners had executed necessary Sale Deed dated:26.09.2012 registered as document No.1976/2012 Book No.1 in the office of SRO, Adyar.   The complainants also have entered into an Agreement for Interior Work in the month of September 2012 for a total sum of Rs.28,73,500/-.  

2.     The complainants submit that they have entered into an Agreement for Electrical Work dated:21.09.2012 for a sum of Rs.12,13,800/-.   The opposite party also completed the construction and delivered the possession of the flat on 01.01.2013.   The opposite party would construct the flat as per the specifications and used only good quality of building materials and standard materials.   But the opposite party miserably failed to construct the flat as per the specification agreed in the Construction Agreement and also failed handover the necessary documents pertaining to the complainant’s flats namely; Property Tax Assessment, Electricity Board name changes and Metro and Drainage Connection card in their names.  Even after repeated requests, the opposite party turned deaf ears.   Thereby, the complainant was constrained to spend huge amount towards that.  The complainant submits that immediately after taking possession of the apartment, the complainants noticed several cracks all over the walls besides seepage of water from the roof level, water line leakage at line from water tank at terrace, poor alignment of doors and fixations, bad shape of wardrobe fittings and workings etc were intimated to the opposite party, but he failed and neglected to rectify that.   As per the Agreement for Civil Work, the opposite party promised to carry out the construction with standard materials and qualified workers but the opposite party has not constructed as they promised.   Even after due intimation regarding the cracks, seepage etc, the opposite party totally failed to attend the work.  Hence, the complainant issued legal notice dated:19.09.2013 for which, the opposite party sent reply with false allegations dated:25.09.2013.  The complainants submit that the opposite party let out some of the flats belongs to other good owners for Korean Guest House caused nuisance.   It creates mental agony also.   The opposite party failed and neglected to provide basic equipments for Gym room, pressure pump noise, ramp for taking car etc.   The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.   Hence, the complaint is filed.

3.      The brief averments in the written version filed by opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The opposite party states that he is a reputed builder and developer.   The opposite party states that the apartment have been provided with amenities like lift, security services, water pump, housekeeping  services etc.   Since the number of flats are less, the opposite party has been providing maintenance service to the apartments based on the personal interest with the owners from time to time various services and repairs have been done to all flat owners.    The opposite party states that the complainant is in arrears of maintenance charges in order to avoid such payment of maintenance filed this case.   The opposite party states that some of the repair works were done and there is no substantial defects in the building which needs repair of the building.   The opposite party states that the alleged amenities like Gym, pressure pump noise, ramp for taking car etc  are not agreed in the agreement.   Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainants have filed proof affidavit as his evidence and documents Ex.A1 to Ex.A13 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.B3 are marked on the side of the opposite party.  Court Exhibits are marked as Ex.C1 & Ex.C2.

5.      The points for consideration is:-

1. Whether the opposite party is liable to carry out the repairs alleged in the complaint and provide all the amenities as per the Agreement as prayed for?
2. Whether the complainants are entitled to a sum of Rs.10,00,000/- towards compensation for unfair trade practice, mental agony, deficiency in service with cost as prayed for?

6.      On point:-

Both parties filed their respective written arguments.   Heard their Counsels also.  Perused the records namely; the complaint, written version, proof affidavits and documents etc.  The complainant pleaded in the complaint and contended that on 24.09.2012, they have entered into an agreement for construction with the opposite party as per Ex.A1 for constructing a flat No.2-B, “Surabhi Apartments” in the Second Floor with super built up area of 1785 sq. ft inclusive of car parking slot for a consideration of Rs.48,55,200/- is admitted.  Further the contention of the complainant is that as per Clause 2 of the Agreement, the opposite party specifically agreed for the payment of construction cost as per stage wise.   Similarly, as per Clause 7, the opposite party specifically agreed and undertaken that they shall adhere to standard of good construction practice and safety norms throughout the project and agreed specification with amenities contained in schedule ‘C’.   As per Clause 8, the opposite party is responsible for procuring of quality building and scaffolding materials.   As per Clause 11, the opposite party had undertaken to complete the construction  as per the specification within a period of 15 months from the date of Agreement.   On 26.09.2012, the opposite party as a Power of Attorney of the owners executed necessary Sale Deed as per Ex.A4.   The complainant also entered into an Agreement for Interior Work in the month of September 2012 for a total sum of Rs.28,73,500/- as per Ex.A3.   As per Ex.A2 dared:24.09.2012, the complainant entered into an Agreement for Electrical Work for a sum of Rs.12,13,800/-.  The opposite party also completed the construction and delivered the possession of the flat on 01.01.2013 is also admitted.   But the opposite party miserably failed to construct the flat as per the specifications agreed in the construction on agreement and also failed to handover the necessary documents pertaining to the complainant’s flats namely; Property Tax Assessment, Electricity Board name changes and Metro and Drainage Connection card in their names.   Even after repeated requests, the opposite party turned deaf ears.  Thereby, the complainant was constrained to spend huge amount towards that.  

7.     Further the contention of the complainant is that immediately after taking possession of the apartment, the complainants noticed several cracks all over the walls besides seepage of water from the roof level, water line leakage from water tank at terrace, poor alignment of doors and fixations, bad shape of wardrobe fittings and workings etc were intimated to the opposite party, but he failed and neglected to rectify that.   As per the Ex.A1, copy of Agreement for Civil Work, the opposite party promised to carry out the construction with standard materials and qualified workers but the opposite party has failed to do the same.  Even after due intimation regarding the cracks, seepage etc, the opposite party totally failed to attend the work.   Hence, the complainant issued legal notice dated:19.09.2013 as per Ex.A6 for which, the opposite party sent reply with untenable contention dated:25.09.2013 as per Ex.A7.   The allegation of the opposite party is that the complainant and others has not paid the maintenance properly shall not be considered for improper construction against the agreement.   The opposite party let out some of the flats belongs to other good owners for Korean Guest House caused nuisance.   It creates mental agony also.   The opposite party failed and neglected to provide basic equipments for Gym room, pressure pump noise, ramp for taking car etc for which, the opposite party’s contention that on payment it will be provided cannot be accepted because, the brochure and understanding at the time of execution of agreement with all amenities are admitted proves the unfair trade practice.  

8.     Further the contention of the complainants is that the opposite party also in his written version para No.9 admitted some defects namely;

(i) Seepage in one of the bedrooms will be attended

(ii) Seepage in the overhead tank

(iii) Cracks in the parapet and pillars

(iv) The main gate can be done after examining etc. 

But the defects and repairs related to the complainant’s apartments is narrated in para No.11 of the complaint namely; development of cracks all over the walls, parapet and pillars which is admitted proves the strength of the building is under question.  The seepage of water from the roof levels and over head tank will cause very great damage to the building walls, of the door alignment and fixing are not done properly creates hardship, wardrobe fittings and working are in a bad shape on account of poor quality materials shall be replaced.   An Advocate Commissioner also appointed to note down the defects and due assessment of damages.   The Commissioner also inspected the flat on 23.09.2017 and filed his report along with Chartered Civil and Structural Engineer as per Ex.C1 & Ex.C2 dated: 04.04.2018 & 02.10.2017 respectively.   The contents of which are self explanatory.  But the value of damages estimated to the tune of Rs.15,00,000/- proves the deficiency in service and unfair trade practice of the opposite party builder.

9.     The learned Counsel for the opposite party would contend that the opposite party is a reputed builder and developer.   But in his written version it is admitted very clearly that certain defects and untitled nature of work and some agreed amenities were not provided proves the deficiency in service.   Further the contention of the opposite party is that the apartment have been provided with amenities like lift, security services, water pump, housekeeping  services etc.   Since the number of flats are less, the opposite party has been providing maintenance service to the apartments based on the personal interest with the owners from time to time various services and repairs has been provided to all owners.  But the opposite party has not produced any document to prove such requisition from the apartment owners to maintenance and services.  On the other hand, the complainant’s requisition regarding the repairs and defects has not complied by the opposite party proves deficiency in service.  Further the contention of the opposite party is that the complainant is in arrears of maintenance charges in order to avoid such payment of maintenance filed this case; is not acceptable; because, the opposite party has not filed any proof for the payment of alleged maintenance of arrears.  

10.    Further the contention of the opposite party is that some of the repair works were done and there is no substantial defects in the building which needs no repair of the building.  But on a careful perusal of the Commissioner Report Ex.C1, there are various repairs works and defects to be attended.  Further the contention of the opposite party is that the alleged amenities like Gym, pressure pump noise, ramp for taking car etc  are not agreed in the agreement.   But as per the brochure, it is accepted and has not done by the opposite party amounts to unfair trade practice.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall rectify all the defects as per the Advocate Commissioner’s Report within one month, failing which, the opposite party shall pay a sum of Rs.10,00,000/- for such repairs with a compensation of Rs.1,00,000/- and cost of Rs.10,000/- to the complainants.

In the result, this complaint is allowed in part.  The opposite party is directed to rectify the defects as per the Advocate Commissioner’s Report within one month, failing which, the opposite party shall pay a sum of Rs.10,00,000/- (Rupees Ten lakhs only) for such repairs with a compensation of Rs.1,00,000/- (Rupees One lakh only) for mental agony and cost of Rs.10,000/- (Rupees Ten thousand only) to the complainants.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 03^rd day  March 2020. 

 

MEMBER                                                                                                                                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	24.09.2012	Copy of agreement for Civil work entered into by the complainant
Ex.A2	24.09.2012	Copy of Agreement for electrical work entered into by the complainant
Ex.A3		Copy of Agreement for Interior entered into by the complainant
Ex.A4	26.09.2012	Copy of Sale Deed entered into between parties
Ex.A5	15.05.2013	Copy of e-mail by the complainant
Ex.A6	19.09.2013	Copy of legal notice by the complainant’s Counsel
Ex.A7	25.09.2013	Copy of reply notice by the opposite parties
Ex.A8	08.11.2013	Copy of explanatory notice by the opposite parties
Ex.A9	20.11.2013	Copy of reply notice by the complainant’s Counsel
Ex.A10	03.12.2013	Copy of Minutes of the Meeting
Ex.A11	27.01.2015	Copy of issues raised by the complainant
Ex.A12	06.02.2015	Copy of reply letter by the opposite party
Ex.A13	18.02.2015	Copy of letter by the complainant

 

OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1		Copy of the Surabhi Apartments maintenance charges
Ex.B2		Copy of remainder letter sent by the opposite party to complainant for non-payment of maintenance charges
Ex.B3	25.11.2013 & 17.01.2014	Copies of letter sent by the opposite party to the complainant’s Counsel informing about the work done along with proofs of delivery

 

Court Exhibits:-

Ex.C1	19.09.2017	Copies of the notices to parties of the case
Ex.C2	02.10.2017	The structural stability of the Civil & Structural Engineer

 

 

 

MEMBER                                                                                                                                                                                             PRESIDENT