V L BHANUKUMAR Vs. DEGA SUNDARA RAMA REDDY

JUDGEMENT

(1.) THIS complaint was originally filed before the Tamil Nadu State Consumer Disputes Redressal Commission at Madras and was registered on its file as O.P. No. 386 of 1993. However, vide Order dated 11th February, 1994 the complaint was returned by it for presentation to this Commission as the valuation of the reliefs claimed was found to be beyond its pecuniary jurisdiction. The Complainant has thus filed this complaint before this Commission.

(2.) THE case of the Complainant is that he was in need of a residential accommodation in the city of Madras. He came across an advertisement/brochure issued by M/s. Pioneer Building Syndicate Pvt. Ltd. (Opposite Party No. 3) and the Architect, Mr. Sarat Kakumanu (Opposite Party No. 6) advertising their building project as "Pioneer Homes constructing Mandira Apartments in T. Nagar area." The classic and distinctive features mentioned in the brochure included amongst other facilities like glass capsule lift, purview theater, indoor recreation room, basement car parking for the owners of the flats to be constructed by them. In response to the enquiries made by the Complainant he received a letter dated 30th January, 1991 informing him that the Opposite Parties are tentatively allotting to him flat No. 3 M measuring 1724 sq.ft. at Mandira Apartments to be constructed at No. 35, L. Raman Street, T. Nagar. The total cost of the flat was quoted as Rs. 13,56,800/- comprising among other things - value of the proportionate share in the land - Rs. 74,496/-, cost of the flat construction - Rs. 7,06,100/-, cost of amenities - Rs. 1,49,200/- and the amount to be paid under the agreement of finishes - Rs. 4,26,204/-. The Opposite Parties assured the Complainant that the flat with all the facilities and the amenities would be delivered to him in the month of June, 1991. The Complainant was persuaded to make the entire payment in one lump sum by way of full payment in a sum of Rs. 13,50,000/-. Believing the said representation the Complainant arranged to pay the entire sum of Rs. 13,50,000/- as early as on 22nd February, 1991 and a receipt was issued by the Opposite Parties. The Complainant thus became entitled to the allotment of flat bearing No. 3 M on the third floor in the project together with the sale of the undivided share in the land proportionate to the flat. Separate agreements for the sale of the proportionate share of the land, for construction, for amenities and for finishes all dated 25th February, 1991 were entered into at Madras between the Opposite Parties and the Complainant who was made to believe that the completed flat with all the facilities will be delivered to him within the stipulated time of six months as per the conditions in the agreement. However, the Opposite Parties have not adhered to the time schedule or other stipulations and till date the flat together with all the amenities has not been completed. In the mean time, when the work was in progress the Opposite Parties persuaded the Complainant and on their suggestion he opted for extra works to be carried out by the Opposite Parties for his flat and an estimate dated 24th April, 1991 was given by them to the Complainant and as per the consensus the Complainant agreed to pay the amount when the Opposite Parties completed those additional works as per specifications in the proposed flat. The Complainant visited Madras from Bombay, where he was then working, several times for the purpose of inspecting the flat. He has incurred heavy expenditure on this account. However, on all occasions the Opposite Parties used to admit that there was delay on their part in completing the project and used to assure him that the same would be completed as early as possible. Having made the full payment, the Complainant had no other option but to wait for the Opposite Parties to complete the construction. When the Complainant visited the work spot in the month of March, 1993 he found that the work was not completed and the progress was not as promised by the Opposite Parties. The Complainant demanded that the Opposite Parties must come forward with a final commitment as to when they would be able to deliver possession of the flat as he was being put to heavy loss. The Opposite Parties started raising untenable disputes with a view to side track the issue and cover up their default, demanding that cost for the additional work also has to be paid by the Complainant in advance. As the Complainant had already burnt his fingers by paying the entire cost of the flat in advance and since the construction was not completed the Complainant flatly refused to comply with their demand and demanded that they should deliver the flat with all the amenities as per the agreement immediately to him. The Complainant also visited the work site in May, 1993 and found that several of the works were yet to be completed like providing the lift for the third floor flat and provision of car park amongst various other works left unfinished. When the Complainant threatened to take remedial measure unless the Opposite Parties completed the work and delivered the flat to him, the Opposite Parties in a hasty move issued a notice dated 16th June, 1993, falsely alleging that the flat was ready a long time ago and the handing over possession of the flat was being delayed by them for the alleged non-payment of the value of the additional work agreed to be carried out by them. The Opposite Parties falsely demanded payment of the amount for the alleged additional works together with interest at an exorbitant rate which was never agreed upon between the parties. They refused to complete the construction and hand over the flat to him. In such circumstances, the Complainant caused to issue a lawyer's notice dated the 10th July, 1993 to the Opposite Parties demanding, amongst other things, delivery of the original registered sale deed conveying the undivided share in the land to him or his Bankers, completing construction of the flat together with all the amenities agreed upon and fitting and fixtures and handing over possession thereof to him forthwith and also payment of damages for the loss and inconvenience and mental strain caused to him by the default committed by the Opposite Parties. The Opposite Parties sent a reply dated 18th July, 1993 on behalf of the Opposite Parties Nos. 2, 4, 5 and 6 raising false and untenable contentions. A due rejoinder dated 6th August, 1993 was issued on behalf of the Complainant.

(3.) THE Opposite Party No. 1 did not appeal in spite of service of notice. The Opposite Party Nos. 2 to 6 filed joint counter affidavit contesting the complaint. According to them the Complainant is an employee of Standard Chartered Bank and in order to avail the facilities provided by the said Bank for purchase of a house or a flat by an employee the Complainant was looking for some decent flat and after having seen the advertisement made by the Opposite Parties and after ascertaining the entire material facts from them, he agreed to purchase the flat in Mandira Apartments, the price of which was Rs. 13,56,800/-. Since the Complainant was an employee of the Bank and as per the regulations of the bank, they used to make the entire payment in one lump sum for the purchase of a flat or house by the employee and in consonance with such policy, the Complainant also availed of the loan and had it sanctioned for Rs. 13,50,000/- in the name of the third Opposite Party, M/s. Pioneer Building Syndicate (P) Ltd. The Complainant's brother was scheduled to apply for American Visa for his higher studies and he had to prove that he had enough funds in the Bank for his higher studies. The Complainant requested the Opposite Party to pay back a sum of Rs. 3,50,000/- as the flat was not fully complete. He wanted the money to be transferred to his brother, Mr. V. C. Hemasagar and agreed to repay the same at the time of taking possession of the flat. The Standard Chartered Bank paid a sum of Rs. 13,50,000/- to the Opposite Parties on 22nd February, 1991 and on the very next date the Opposite Party issued a cheque drawn on Andhra Bank in the name of the Complainant's brother for a sum of Rs. 3,50,000/-. The Opposite Parties also got registered the undivided share of the land in the name of the Complainant and kept the sale deed with them. The Complainant agreed to collect the same at the time of repaying the said amount of Rs. 3,50,000/- and the balance amount of Rs. 6,800/-. After inspecting the flat during the month of April, 1991, the Complainant wanted to have certain additional facilities provided to him in his flat and made a requisition on 24th April, 1991 for carrying out the extra work for a sum of Rs. 59,855/- and also agreed to make payment for the additional work by paying 75% in advance and 25% on completion of the extra work. Later on he also came forward with certain more additional amenities costing Rs. 13,700/- to be provided to him. Believing the representations of the Complainant, the Opposite Parties carried out the extra work and got the flat ready for delivery, even though the Complainant did not make the advance payment as agreed to in his letter dated the 24th April, 1991. The Complainant was also making periodical inspection of the flat and in view of the fact that he was not able to repay the sum of Rs. 3,50,000/- paid to him for the purpose of enabling his brother to proceed to U.S.A. and also failed to pay the amount for the extra work carried out for Rs. 73,555/- as requested by him, the flat could not be delivered. The Complainant was postponing taking delivery of the flat. As far as the Opposite Parties were concerned, they have made the flat ready for delivery as early as August, 1991 and only due to non-payment of Rs. 3,56,800/- and the amount due in respect of extra work done, delivery of possession was not given. Since he has not paid the amount for the additional amenities, the Opposite Parties claimed a sum of Rs. 1,42,460.30 including the value of reserved car parking to be provided to him, association fee, maintenance charges etc. The Complainant was, thus, postponing the payment and at no point of time was there any negligence or any deficiency or defect in the service rendered by the Opposite Parties both in complying with the original agreements as well as construction of flat in accordance with the specifications. The Opposite parties were always ready and even now ready and willing to deliver the flat No. 3 M in Mandira Apartments provided the Complainant pays the sum due from him. Even at the time when the Complainant entered into the agreement for the purchase of flat, he had the same inspected by his own Engineer, who had certified that 60% of the work was already over even as early as February, 1991 and therefore in spite of the fact that the flat was ready as per schedule it is only by reason of extra work the Complainant was wanting to be carried out and also due to the fact that he has not paid the entire amount and has been postponing payment of the same and taking delivery of the flat, the flat could not be delivered to him. The Opposites Parties have never refused to deliver possession of the flat provided the Complainant made the payment. The Opposite Parties had not persuaded the Complainant for the extra work and in fact the Complainant himself gave two letters about the extra work to be carried out. Other allegations of the Complainant were also denied.