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Builder penalised for delayed delivery

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO. 4138 OF 2014
(Against the Order dated 22/09/2014 in Appeal No. 8/2014 of the State Commission Tamil Nadu)

1. M/S. SAS REALTORS (P) LTD.
(MEMBER APPASWAMY GROUP)
REP BT ITS CEO MR.T.S.S. KRISHNAN,
NO-3, MANGESH STREET, T NAGAR
CHENNAI - 600 017 TAMIL NADU ...........Petitioner(s)
Versus
R. RAJAGOPALAN
POWER AGENT OF: 1. ANAND RAJAGOPALAN,
S-6 ASHOK CASTLE NEW NO-41, OLD NO-47,
12 TH AVENUE, ASHOK NAGAR,
CHENNAI - 600 083 TAMIL NADU ...........Respondent(s)

BEFORE:
    HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

Dated : 04 Apr 2016

ORDER

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

      This revision petition has been filed by the petitioner against the order dated 22.9.2014 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short, ‘the State Commission’) in Appeal No. 8/2014 –R. Rajagopalan, Power Agent of Mr. Anand & Anr. Vs. M/s. SAS Realtors (P) Ltd. by which, while allowing appeal, order of District Forum dismissing complaint was set aside.

2.      Brief facts of the case are that Complainant/respondent‘s son and wife applied for the allotment of flat in the opposite parties/petitioner Residential Project under name as ‘Orchards’ at Vadapalani, Chennai in January 2006 and Flat No.B-11 Block-4 was confirmed in favour of the complainant and executed documents for the UDS share of land for Rs.8,24,535/- and Rs.19,36,465/- towards construction costs. The opposite party agreed to complete the entire construction within 18 months from 23.6.2006 with grace period of 3 months provided the purchaser make the payment as agreed upon. For the same purpose house loan of Rs.26,23,288/- was availed from ICICI Bank. The complainant paid total amount of Rs.29,15,578/- during the period January 2006 to January 2008 and the last instalments of Rs.1,52,907/- was paid on 1.2.2008. Instead of handing over the possession of the flat as per agreement on 23.12.2007 within 18 months only after the delay of 14 months and by reducing grace period of 3 months the possession was given with delay of 11 months and the complainant conducted House Warming function on 21.8.2008 on which date the lift was not ready and the guests of the complainant had to climb up to 11th floor through staircase. The interior work also not taken up for want of installation of lift and no further work was carried out and the flat was completed only on 28.2.2009. The complainant managed to find a tenant on a lease for 11 months from 1.7.2009, but after two months he vacated the flat and the complainant wrote a letter to the opposite party to attend the defects and he finalized another tenant from 1.10.2009. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that Power Agent has no authority to file complaint in his own name. It was further submitted that complainant never adhered to the payment schedule and there was delay in payment of instalments and further submitted that there was no delay in delivery of possession. No verbal assurance was given that lift would be ready by 15.8.2008 and OP is not aware about Grahaprevesam function of complainant. It was further submitted that delay in facilities regarding water, etc., occurred due to statutory authorities. Claim of rental value and compensation is totally imaginary and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint. Appeal filed by complainant was allowed by learned State Commission vide impugned order and OP was directed to pay Rs.1,98,000/- towards loss of rental income and Rs.50,000/- as compensation and Rs.10,000/- as cost against which, this revision petition has been filed.

3.      Perusal of record reveals that payment was to be made as per agreement and OP was to handover possession in 21 months including grace period subject to payments made by complainant as agreed in the agreement. Admittedly, as per agreement, possession was to be handed over by 23.3.2008 whereas possession has been handed over on 28.2.2009 meaning thereby, there was, prima facie, delay of about 11 months in handing over possession. Learned Counsel for the petitioner submitted that there was delay of 170 days in making payment whereas respondent submitted that there was no delay in making payment. Perusal of statement of payment reveals that complainant was to pay Rs.5,29,885/- towards land cost upto 30.6.2006 whereas this payment has been made on 29.9.2006. In the same way, payment of Rs. 2,79,865/- towards cost of construction was to be made upto 30.6.2006 whereas this payment has been made on 29.9.2006. Thus, there was delay of 90 days in making aforesaid payment. As far other payments are concerned, there appears to be some days delay in making payment. Respondent submitted that respondent made payment as asked by different letters. Perusal of different letters reveals that they were only reminders and as per those letters amount was to be paid as per agreement. It appears that some of the letters lesser amount and in some of the letters higher amount was demanded by OP from the amount shown in agreement and it appears that complainant also made payment in piecemeal. Respondent argued that he was to make payment as per letters is devoid of force because in most of the letters it has been mentioned that payment was to be made as per agreement meaning thereby, complainant was bound to adhere payment schedule as per agreement. Clause 12 of agreement reveals that possession was to be handed over within 21 months provided complainant makes payment as agreed in Clause 4 & 9 and record reveals that complainant has not made payment as per clause 4 & 9 and when complainant himself delayed in making payment, OP was not bound to handover possession within 21 months from the date of execution of agreement, but as last payment was made on 1.2.2008 and possession has been handed over on 28.2.2009, certainly complainant is entitled to some compensation and learned State Commission has not committed any error in allowing compensation of Rs.50,000/-.

4.      As far loss of rent is concerned, learned State Commission has allowed Rs.18,000/- per month for a period of 11 months on the basis of two subsequent agreements. Prima facie, these agreements cannot be relied on in the absence of any rent receipts obtained by complainant because, prima facie, a flat costing Rs.27,60,000/- cannot fetch rent of Rs.18,000/- per month. Complainant has also not filed affidavit of lessees in support of lease deeds. I have already observed that complainant himself was defaulter in making payment as per agreement, so, complainant is not entitled to any compensation on account of loss of rental income and to this extent; order of learned State Commission is liable to set aside.

5.      In the light of above discussion, impugned order is liable to be modified.

6.      Consequently, revision petition filed by the petitioner is partly allowed and impugned order dated 22.9.2014 passed in Appeal No. 8/2014 – R. Rajagopalan, Power Agent of Mr. Anand & Anr. Vs. M/s. SAS Realtors (P) Ltd. is partly modified and direction of payment of Rs.1,98,000/- towards loss of rental income is set aside and rest of the order is upheld. Parties to bear their costs.

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