BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 28th November 2016
PRESENT
SRI. VISHWESHWARA BHAT D : HONBLE PRESIDENT
SRI. T.C. RAJASHEKAR : MEMBER
ORDER IN
C.C.No.148/2014
(Admitted on 29.04.2014)
Mr. Maxiem Charles Lewis,
S/o Late Joseph Lewis,
Aged about years,
Residing at Joseph s Cote,
Kinnigoli Post, D.K 574 150,
Represented by his
General Power of Attorney holder,
Mr. Nicholas Lewis,
Aged about years,
Residing at Joseph s Cote,
Kinnigoli Post, D.K 574 150.
…........ COMPLAINANTS
(Advocate for the Complainants: MNA)
VERSUS
1. Mr. Noel F. C. Pinto,
S/o late William Pinto,
Joseph Villa, Chilimbi,
Mangalore 575 006.
2. Mrs. Jacintha Pinto,
W/o Noel F.C, Pinto,
Joseph Villa, Chilimbi,
Mangalore 575 006.
3. Mohtisham Complexes Pvt., Ltd.,
6th and 7th Floor, Empire,
M.G. Road, Mangalore 575 003,
Represented by its Managing Director,
Mr.S. M Arshad.
….........OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1 & No.2: Sri DALA)
(Advocate for the Opposite Parties No.3: Sri KSS)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs.
The brief facts of the case are as under:
The complainant seeks the relief claimed in the complaint against the opposite parties with cost.
2. The admitted facts between two parties are that opposite party No.1 and No. 2 is the land owner of complainant. A schedule property have entered into joint development agreement dated 19.10.2004 with opposite party No.3 the developer. Opposite party No.3 was empowered to enter into agreement with intending purchasers for sale of proportionate undivided right in the A schedule property along with apartment to be constructed with car parks.
3. The complainant approached to opposite party No.3 after purchase B Schedule Apartment with car park which was accepted by opposite parties under agreement dated 7.11.2005 as per they which agreed to sell with ‘B’ schedule with 1.37% undivided rights in the common areas and facilities and also in the land in A schedule. The complainant Paid Rs.3,15,000 by cheque on the date of agreement to opposite parties subsequent payments were made by complainant by way of 3 different cheques on 29.12.2005 Rs.1,08,500/, on 18.1.2006 Rs.54,000/ and on 22.2.2006 Rs. 69,000/. The total amount paid infact exceeds the agreed amount when complainant contact opposite party for delivery of the B schedule and that he has been relied this part of the contract communicated with the opponents . However the opposite parties completely stopped construction work. False e-mail were been sent by opposite parties to complainants. On 4.6.2011 complainant got issued legal notice to opposite parties to execute registered sale deed and deliver B schedule property with car park as per agreement to which opposite party replied inability to complete the construction work due to impossible condition imposed by Fire Service Department and Mangalore City Corporation and offered to return amount by cheque of Rs.5,46,500. However on 24.6.2011 the complainant returned the cheque subsequent to rejoinder opposite parties called on the complainant and tried to convince him that he already applied for fresh licence and that as per the agreement on apartment will be allotted to him. Later complainant came to know on 10.1.2014 Mangalore City Corporation had issued licence to opposite parties to construct the proposed apartment building and thereby the alleged impossible conditions mentioned in the reply dated 11.6.2011 and 29.6.2011 are cleared. On 10.2.2014 complainant got issued another legal notice seeking to deliver either B schedule apartment or any other apartment equal to B Schedule apartment with car park. However they are not complying with this hence this complaint.
II. Opposite party No.1 and No.2 filed written version disputing the agreement entered with complainant but admitted their owner ship of the land in question and entered into Joint Development Agreement (JDA) with opposite party No.3 for construction and completion of apartment in their lands. As per the JDA the promoters opposite party No.3 was allotted certain number of apartment in lieu of the constructing the building in the land of opposite party No. 1 and No. 2 a GPA was executed by opposite party No.1 and No. 2 in favour of opposite party No.3 but it did not authorised by opposite party No.3 to necessitated to enter into any agreements for the apartments allotted to opposite party No.1 and No.2 under JDA. Opposite party No.1 and No.2 are not responsible for the construction and as land owner are committed to register and execute the sale deed to intending purchasers. They never met complainant or contact with complainant no payments were received by them. Hence seek dismissal.
2. Opposite party No.3 in the written version contends the complaint is barred by time. In this sale agreement entered with complainant there is specific allegations that opposite party No.3 have applied for building licence. And that construction work is in progress and had obtained the necessary Licence from all the concerned authorities including the MCC. On 14.3.2006 MCC served notice to opposite party No.3 to stop unauthorized construction and proceeding was stayed by the District Court which was applied against by MCC before the High Court of Karnataka
3. Opposite party further contends that he narrated the unfortunate incident this to all the purchaser of apartment including the complainant and refunded the amount paid and cancelled their booking and was conveyed through e-mail dated 12.5.2011 and 18.5.2011. The complainant through email dated 19.05.2011 thanked the opposite party for reminder as opposite party No.3 was in Qatar and authorised his brother Mr.Nicholas Lewis to handle COTTAGE booking issues and all communications were to be addressed to him. During the matter pending before the High Court of Karnataka Revised Master Plan along with the Zonal Regulations was implemented in Mangalore by the State Government. Thereafter building only with 10m height was permitted and opposite party No.3 was forced to demolish 2 floors of the building already constructed and thereafter obtained NOC from the DFES and technical opinion from MUDA. Then in view of order of Hon’ble High Court of Karnataka MCC issued Building Licence for ground plus five floors. Inspite of the sufferings and losses by opposite party No.3 offered to refund the amount paid by the complainant with interest was no option under their allegation.
4. It is further contended in view of the ground plus five floors it was impossible to go ahead and execute, register and deliver the apartment No. 705 which should have been housed in the seventh floor of the said project unless does not exist the question with complainant notice of Rejoinder Development agreement dated 29.6.2011 or notice 10.02.2014 does not arise.
5. It is further contended he offered to refund the entire amount of Rs.5,46,500/ with interest at 15% as received amount settled was not accepted by the complainant. There is no deficiency of service on the part of opposite party No.3 hence seeks dismissal.
6. In support of the above complainant Mr. Nicholas Lewis (GPA) holder filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C.11 detailed in the annexure here below. On behalf of the opposite party Mr. Dharmaraj (Rw1) and Mr. Noel F.C. Pinto (RW2) also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked Ex R1 and R7 detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether there is consumer dispute between the parties?
- Whether the complainant barred by Time?
- If so, whether the Complainant is entitled for any of the other reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No. (i): Affirmative
Point No. (ii): Negative
Point No. (iii): Affirmative
Point No.(iv): As per the final order.
REASONS
IV. POINTS No. (i): The complainant entered into the agreement with opposite party No.3 who is developer for purchase of flat No. 705 in the building agreed to be build by him in the land of opposite party No.1 and No.2 and that complainant paid amounts to opposite party No.1 on various dates by way of cheque totalling Rs.5,46,500/ is not disputed. Similarly opposite party No.3 has not executed the sale deed in the complaint. Pertaining to flat apartment No.705 (herein as referred to flat) is undisputed. The complainant even after refusal of licence to complainant demanded execution of sale deed in his favour of registered sale deed by opposite party No.3 by complainant the flat or a flat equivalent to flat No.705 was refused by opposite party No.3 is admitted. Hence opposite parties having admitted to sell the flat to complainant but later did refuse the demand of complainant there is a consumer dispute between the parties. Hence answer point No. 1 is in the affirmative.
Point No (ii) and (iii). The license obtained by opposite party No.3 to the construction of apartment build in the land of opposite No.1 and No. 2 that is the a schedule property was refused by MCC and Fire Department is not in dispute that this as per it was brought to the notice to complainant through email on 12.5.2011 and the 18.5.2011 and complainant by email met 19.5.2011 thanked opposite party No.3 for this reminder and authorized his brother Mr.Nicholas Lewis to handle this cottage business is not also dispute by the side. Opposite party No.3 challenged the refuse of licence for construction before the District Court and stay such an order of MCC and the matter was taken before High Court by opposite party No.3. Later MCC sanction license and it consists only up to ground plus 5 floors is undisputed but his order admitted is on Ex.C9 is the order of MCC dated 12.01.2014 under which permission was issued for construction in the schedule property. But admitted this permission is only up to ground plus five floor construction.
2. Ex.C1 is notice addressed to opposite parties on behalf of complainant no dated 2.6.2011 calling up on them to execute sale deed in respect of B Schedule apartment with car park in undivided right to ‘A’ schedule property . Ex.C2 is reply to Ex.C1 dated 11.6.2011 and as along with Ex.C2 refund cheque for Rs.5,40,500 / was also sent to complainant’s counsel . Ex.C3 is rejoinder sent to opposite parties counsel dated 24.6.2011 mentioning that complainant returning the cheque sent on behalf of opposite parties and seeking delivery of the apartment and execution of sale deed. Ex.C4 is a reply to the rejoinder sent on behalf of opposite parties stating that they are not in a position to comply with that demand of complainant.
3. Thus it is clear there was demand for a execution of sale deed and a refusal to execute sale deed and instead refund of advance to complainant in June 2011 itself. But the complainant under Ex.C5 another notice issued on behalf of complainant to opposite parties the demand made is to execute and to register and to delivery either B schedule property or any other apartment equal to B Schedule apartment with car park and undivided right in the A schedule property. This notice Ex.C5 is apparently issued subsequent to Ex.C9 dated on 10.1.2014 .
4. However the ground urged on behalf of opposite parties is they are not in a position to deliver either flat No.705 or an equivalent flat demanded by the complainant under Ex.C5. The reason assigned for this is that by the time this demand under Ex.C5 was made on all the flats with opposite party No.3 was already booked/sold.
5. Ex.R7 is a document styled as status of the Registration Forms and First Payment Received Dates in the respect of Project Cottage of opposite party No.3.2 in this document it is seen from 2012 onwards that is 19.3.2012 in respect of premises 105 at the date of registration form and date of first payment received at 19.3.2012. There is one application registration form issue date of 24.2.2014 in the respect of flat No. 205 with first payment receipt as 24.02.2014 and in the respect of flat No.407 with first payment receipt as12.02.2014. Except these entries in respect of entry, are of prior to the notice date of Ex.C5. Dated 10.2.2014 referring to this learned counsel for opposite party No.3 argued that the demand of complainant latest at Ex.C5 before filing of this complaint it is argued the area and size were not equal to or nearer to flat no. 705 and no such flat was available with opposite party No.3. But as seen from the list of area schedule cottage apartment B of sale agreement dated 7.11.2005 i.e. annexure Ex.C8 indicates the size of 205 and 705 are almost identical in all respect namely common area of 40.06 sq.ft super built up are a 1245 sq ft and 1205 sq.ft of undivided interest in land as 1.27%. Hence argument on this count for opposite party No.3 is unsustainable as when demanded by complainant on 10.2.2014 of flat No.205 with almost identical in size of that 705 was available with opposite party No.3
6. The learned counsel for complainant referring to Ex.R7 argued numerous flats vacant flats were available like flat No. 102, 104, 106, 108, 201, 204, 206, 208, 301, 305, 307 etc.. However as seen from entries at Ex.R7 the above flats and the other flats in heading as noted as ‘land owners share’ i.e. of opposite party No.1 and No.2 and opposite party No. 3 the developer cannot claim any right to alienate these flats as he is obligated under the development agreement referred earlier to give them to land owners i.e. opposite party No.1 and 2. The rights of opposite party No.3 the developer to alienate being only inrespect of other flats the circumstances in which we have already discussed.
7. Thus it is clear from the above discussion about flat available of equal in dimension to opposite party No.3 which he could have transferred to complainant under a registered document as per the agreement. It is needless to mention that before the date of Ex.C9 opposite party could not have conveyed to complainant, over the property that he is required to sell as per the original agreement. However it was argued for opposite party that when the flat No.705 which the complainant intended to purchase from opposite party No.3 was not in existence we cannot see another flat in the apartment building developed by opposite party No.3 in the land of opposite party No.1 and No.2 the remedy available to complainant was to accept the amount sent by way cheque in June 2011 itself which however admittedly was not enchased and returned back to opposite party No.3. When subject to the matter flat No.705 is not available for sale, the complainant, it was argued, for opposite party No.3 that the complainant cannot seek another flat to be sold in the building to him. It was further pointed out that the complainant was aware even as the agreement of sale was entered in 2005 under Ex.C8 on 7.11.2005 the complainant was aware that the permission for the construction was only applied and was not obtained. The complainant was aware that the construction permission was not obtained by opponent by then but only applied. Hence as seen from Ex.C8 at clause 25 The Promoter undertakes to hand over the following items to the Purchaser at the time of handing over the possession of the B Schedule Apartment or within a maximum period of six months of the handing over of the B Schedule Apartment of which occupancy certificate team MCC authorities is mentioned at (a).
8. Considering that the opposite party No.3 has not obtained the required licence for the construction till the first week of January 2014, the licence having been issued as per Ex.C9 only on 10.1.2014. Opponent no. 3 could not have compiled the construction before Ex.C9 at no point of time earlier including from the date of Ex.C5 there is a demand for delivery of ‘B’ Schedule property or any other apartment equal to B schedule apartment in an unfinished condition. Infact the agreement as per the Ex.C8 is under by opposite party No.3 is towards construction and delivery of possession of ‘B’ schedule property to complainant ready for occupation. Hence we are of the view that opposite party No.3 cannot escape the liability to sell ‘B’ schedule or its equivalent property in the complex like the one 205 available to opposite party No.3 as on Ex.C9 .
9. It was argued for complainant that the Forum can mould the relief for B schedule property i.e. flat No. 705 if not available for sale to opposite party No.3 as the statutory authorities in refusing permission to construct 6th and 7th floor in the apartment in the residential complex any other flat in the complex can be sold of equal in size to complainant.
10. Reference on this count to complainant s counsel was made to a reported judgment in U.P. State Brassware Corpn. Ltd. Vs. Udai Narain Pandey in year 2006 Supreme Court 586 wherein it is held interalia referring to order 7 rule 7 CPC that in respect of Moulding of relief Discretionary jurisdiction need not be conferred always by statute it is held :
It is one thing to say that Court interprets a provision of a statute and lays down a law, but it is another thing to say that Courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as parities may be found to be entitled to in equity and justice. If that be so, the Court s function as court of justice would be totally impaired. Discretionary jurisdiction in a Court need not be conferred always by a statute.
11. Similar is the view expressed by Hon’ble High Court of Karnataka in Manohar Ramakrishna Shirodkar Vs Trimbak Rama Kelkar I.L.R. 1992 KAR 213 .
12. The learned counsel for opposite party No.3 and in the written notes of argument and to some extension during the course of oral arguments referred to sec. 34 to KAR stamp Act 1957 and sec 35 of Indian stamp Act to point out i.e. the agreement entered to insufficient stamp paper of Rs.100/ and deficit stamp duty and penalty are not paid. However subsequently the learned counsel did concede that the original agreement was written on a paper of sufficient stamp duty and withdrew his argument on the question of insufficiency of stamp paper.
13. The learned counsel for opposite party No. 3 referring to Oriental Aroma Chemical vs. Gujarat Industrial Development Corp & Anr. Civil appeal No 2075/2010 this judgment of Supreme Court of India on dated February 26th 2010. In the report of case there was delay in filing the appeal. However the delay on the facts of the report judged was not condoned.
14. Similarly in respect of Consumer Protection Act the Supreme Court in a reported Judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, (2011) 14 SCC 578 reported in 2011 held:
Appeal before Supreme Court Limitation Condonation of delay Exercise of powers Refusal of Petitioner challenging order of National Commission after delay of 233 days She contended that she was resident of Kuwait and she came to know about passing of impugned order after a fortnigh of its passing She instructed her counsel to file appeal before Supreme Court but she could not come to India and meet her counsel That even though when she had come to India to attend religious ceremony she could not meet her counsel due to viral fever Therefore there was delay of 233 days held, petitioner instructed her counsel to prepare draft but she did not take necessary steps to file it before Supreme Court Contention that she could not meet her counsel when she was in India due to viral fever not substantiated by any documents-As consumer Protection Act specifies special period of limitation, object of expeditious adjudication of consumer disputes would be defeated if belated petitions are entertained-Hence delay not condoned.
However in the case on hand we are of view even though from the date of demand in Ex.C1 dated 2.6.2011 the complaint filed beyond two years from the date of Ex.C1 in view of clause 25 (a) of Ex.C8 as Ex.C9 is of 10.1.2014 when the complaint filed on 15.4.2015 is within 2 years. Under the terms of the agreement Ex.C8 opposite party was duty bound to execute sale deed on the completion of the construction work.
15. As such we are of the view as the construction licence was obtained by complainant only under Ex.C9 on 10.1.2014 as per Ex.C9 he could not have executed sale deed in respect of flat or apartment as per Ex.C8 in favour of complainant. Hence the contention of learned counsel for opposite party No.3 that there is delay beyond the period of two year prescribed under C P Act cannot be accepted.
16. As earlier discussed it is a case that opposite party No.3 collected amount when he obtained licence for construction from the competent authority as per Ex.C9. the opposite party No.3 entered in agreement with other 3rd parties even after receiving demand notice i.e.Ex.C5 on behalf of complainant to execute or registered or deliver ‘B’ schedule apartment or any other equivalent to B schedule apartment with undivided right with car park and facilities . Hence the action of opposite party No.3 in entering to agreement with 3rd parties for sale of identical property as of B schedule property in our view is unjustified. We cannot forget opposite party No.3 invested the amount of complainant in the construction work. Hence we are of the view that the complainant succeeds and the first prayer made in the complaint Para no.15 shall be allowed.
17. In respect of damages the complainant has demanded for a sum of Rs.2,15,000/ towards mental agony stress and inconvenience. However it is to noted that as on the date when complainant entered into sale agreement with opposite parties way back in 2005 as per Ex.C8 he was aware licence for construction was not obtained and it was only applied for. Hence the complainant cannot comply of mental agony and stress all these years. Hence in our view and amount of Rs.50,000/ on this head and towards cost a sum of Rs.10,000 is just and proper. Hence answer points 2 negative and 3 in the affirmative.
POINTS No. (iv): Wherefore the following order
ORDER
The complaint is partly allowed. Opposite parties No.1, No.2 and No.3 are directed to allot and transfer a property equivalent to B Schedule Apartment with car park and proportionate undivided right in the A Schedule Property and common areas and facilities in favour of the complainant in Cottage Apartment situated in A Schedule property for the price already fixed under agreement Ex.C8.
Opposite party No.3 shall also pay sum of Rs.50,000/ (Rupees Fifty thousand only) as compensation and cost of the litigation expences of the case is Rs.10,000/ (Rupees Ten thousand only). Hence within 60 days time from the date of receipt of copy of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 16 Dictated directly to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 28th November 2016)
MEMBER (SRI. T.C. RAJASHEKAR) D.K. District Consumer Forum Additional Bench Mangalore. | | PRESIDENT (SRI.VISHWESHWARA BHAT D) D.K. District Consumer Forum Additional Bench Mangalore. |
SCHEDULE A
1.37% undivided right in the immovable non agricultural converted property held on warg right and being situated at Kadri A Village of Mangalore Taluk, Bendore Ward of Mangalore City Corporation and within Mangalore City Sub Registration District of Dakshina Kannada District and comprised in :
ITEM NO.1:
Sl.No. Rs.No. T.S.No. Extent
A.C
1. 123/22 743/22 025.80
2. 123/20 743/21 0.03.00
3. 123/19 743/20 0.02.00
4. 123/23 743/23 0.00.90
5. 123/24 743/24 0.01.8
0.33.50
together with all mamool and easementary rights appurtenant thereto.
BOUNDARIES:
East : Survey Line and Road
West : Survey Line
North : Portion of T.S No.743/22, 743/23 and 743/24
South : Survey Line
ITEM NO.2:
R.S. No. T.S. No. Extent Which Portion
A.C
124/12A 742/12A 0.27.00 Whole
Together with all mamool and easementary rights appurtenant thereto.
BOUNDARIES:
East : Survey Line
West : Survey Line
North : Survey Line
South : Road and Survey Line
SCHEDULE
Two bedroom Apartment No. 705 on the Seventh Floor of THE COTTAGE Apartments building measuring 1,205.00 Sq.Ft built up
area along with additional common area of 40.06 Sq.Ft. totally measuring1,245.06 Sq.Ft along with the 1.37% undivided right in the common area and amenities of the said apartments building with car parking space Np.44B on the Ground Floor.
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 Mr. Dharmaraj GPA holder
Documents marked on behalf of the Complainants:
Ex.C1 : 02.06.2011 : Legal notice issued on behalf of the Complainant
Ex.C2 : 11.06.2011 : Reply by the opposite party
Ex.C3 : 24.06.2011 : Rejoinder by the complainant
Ex.C4 : 29.06.2011 : Reply by the opposite party
Ex.C5 : 10.02.2014 : Legal notice issued on behalf of the complainant
Ex.C6 : 15.03.2014 : Reply by the opposite party
Ex.C7 : 01.02.2014 : G.P.A executed by the complainant
Ex.C8 : : Copy of the agreement
Ex.C9 : : Copy of the fresh licence
Ex.C10: 15.02.2006 : Letter issued by the opposite party
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Dharmaraj, Chief Executive Officer
RW2: Mr. Noel F.C. Pinto, Joseph Villa, Chilimbi
Documents marked on behalf of the Opposite Parties:
Ex.R1: 12.05.2011 : E Mail sent to the complainant by O.P3
Ex.R2: 18.05.2011 : E Mail sent to the complainant by O.P3
Ex.R3: 19.05.2011 : Reply E Mail by complainant to O.P3
Ex.R4: 21.05.2011 : E-Mail sent to the brother of complainant by O.P3
Ex.R5: 30.05.2011 : E-Mail sent to the brother of complainant by O.P3
Ex.R6: : Section 8 of Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 And Rules, 1975
Ex.R7: : Chart showing status of Registration
Dated: 28.11.2016 PRESIDENT
