BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

Dated this the 15^th December 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                      : HON’BLE MEMBER

ORDER IN

C.C.No.194/2014

(Admitted on 07.6.2014)

Mr. Lava Kumar P.M, aged 48 years,

S/o Late N.S. Machaiah,

Residing at No.15.1.24/18,

III Floor, Prasad Apartment,

Bendorewell, Kankanady,Mangalore.

                                                                         ….. COMPLAINANT

(Advocate for the Complainant: Sri NMS)

VERSUS

1. M/s BRP Developers,

    A partnership firm having its office at

    Shop no.6, 7, 8, 1^st Floor,

    Manasa Towers, M.G. Road,

    Mangalore  3.

    Represented by its partners.

2. Mr. Pramod Gupta, S/o Late T.D. Gupta,

    Partner, M/s BRP Developers,

    Shop No:6, 7, 8, 1^st Floor,

    Manasa Towers, M.G. Road,

    Mangalore  3

3. Mr. P.S. Bharath, S/o P S N Aithal,

    Partner M/s BRP Developers,

    Shop No:6, 7, 8, 1^st Floor,

    Manasa Towers, M.G. Road,

    Mangalore  3.

4. Mr. Raj Kumar, S/o late Ramphal,

    Partner, M/s BRP Developers,

    Shop No:6, 7, 8, 1^st Floor,

    Manasa Towers, M.G. Road,

    Mangalore  3

                                                                   ......OPPOSITE PARTIES

 (Opposite Parties No.1, No.3 & NO.4: Ex parte)

 (Advocate for the Opposite party No.2: Sri TP)

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 contends he agreed to purchase a site No.22 in Blue Heaven project at Kotekar developed by opponents.  Under agreement of sale deed dated 29.8.2008 and on various days paid part consideration totalling Rs.11,08,800/. Under clause 8 therein opposite parties required to obtain layout approval of competent authority to complete the project within 8 months of agreement of sale.  Under clause 9 (a) of the agreement for sale the complainant required to issue 30 days notice to opposite parties to executive registered sale deed.   On failure entitled to claim interest at 24% on the value of house site.  Opposite parties failed to comply repeated request of oral demands and legal notice issued on 3.1.2013.  The opposite parties promised complainant that they have applied to MUDA for approval and so on getting approval will executive sale deed.  The complainant is ready to pay balance of Rs.2,77,200/.  Contending opposite parties failed to comply with even after legal notice issued seeks remedies claimed in the complaint against opposite parties. 

II.     Opposite party No.2 filed written version claiming is Managing Partner and is representative of his firm and complainant is not a consumer opposite parties never agreed to render any services to the complainant.  The question of deficiency arises only on the completion of the agreement i.e. after execution of sale deed if any defect in the site.  If the complainant agreed of non compliance of any condition of the agreement has to move Civil Court for enforcement. 

2.     It is further alleged all efforts has been made by opposite parties to obtain permission to enable delivery of B schedule house site of the complainant.  The complainant has not complied with terms and conditions of the agreement.  To avoid payment of Court fee before Civil Court the complainant had come up for this Forum.  Hence seeks dismissal of complaint.

 3.      In support of the above complainant Mr. Lava Kumar P M filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C19 detailed in the annexure here below.  On behalf of the opposite party Mr. Pramod Gupta (RW1) Partner M.S. BRP Developers also filed affidavit evidence and answered the interrogatories served on him.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. 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): Affirmative

              Point No.(iii): As per the final order.                  

REASONS

IV.   POINTS No. (i):   Admittedly there is a sale agreement in respect of site No.22 executed by opposite parties to sell it in favour of complainant.  As such complainant being the intending purchaser and the opposite parties being persons who agreed to develop the layout in question and to sell one of the house sites to complainants, in our view, is a service provider within the meaning of deficiency of service under 2(1)(o) of C P Act. In this case the claim to execute sale deed after obtaining required licences permission from MUDA admittedly is not complied by the opposite parties. The contention of opposite parties that there is no completion of the agreement and that the transaction is not completed hence the question of deficiency does not arise  cannot be accepted in as much as  the agreement of sale under which opposite parties agreed to execute registered sale deed to complainant in respect of site No.22 by developing the layout and obtaining required permissions from MUDA amounts to service agreed to be provided to complainant.   Hence there is a live dispute between the parties.  Hence we answer Point No.1 in the affirmative.

POINTS No. (ii):    In this case the Forum as appointed an Advocate as commissioner to visit the spot and he filed his report on the points raised by the parties at answer No.4 in respect of a, d, l, o, p, q, r, s, i, k, & m  were not pointed out/not available. These answers are in the respect quoted below:

4. The undersigned request the opposite parties to point out the facilities, at the site:

a) Club House                           Not Pointed out/not available

d) Indoor and outdoor

    game facility                         Not Pointed out/not available

l) Modern supermarket             Not Pointed out/not available

o) Park                                      Not Pointed out/not available

p) children play ground            Not Pointed out/not available

q) Indoor and Outdoor play      Not Pointed out/not available

r) Multipurpose auditorium      Not Pointed out/not available

s) Multi gymnasium                 Not Pointed out/not available

i) 24 hours security                   Not Pointed out/not available

k) Rain water harvesting           Not Pointed out/not available

m) underground cable and

     pipe line                               Not Pointed out/not available

     2.  It was also pointed out by the Advocate commissioner that the drainage chambers have not been provided but no such drainage chamber were provided in respect of particular site No.22 it was found open on all 3 sides namely South North West with only compound on the Eastern side.  He also mentioned no electrical polls were found in the layout an temporary arrangement for water supply is provided through open wall (Open well?) he also mentioned there is no permanent water supply facility and overhead water tank facility were also not provided and electric wire were found on the ground.  It seems the opposite party has not filed reply to the interrogatories served on them on behalf of complainant; of course object were filed to commissioners report. 

     3.  Thus it is clear that there is no compliance on the part of opposite party on the conditions of the agreement of sale.

    4.   As seen from clause 12 of the agreement sale between the parties except water and electricity deposits and the registration expences the opposite parties are liable to make expenditure.  Clause 12 at page 9 of the agreement reads thus:

It is specifically agreed that, the consideration paid under this Agreement is inclusive of all licence fees, service tax, Land Revenue and development charges which are levied by the Government Authorities to acquire full marketable title to the property as approved housing layout (including MUDA approval) except water and electricity deposits and registration expenses.  The PURCHASER is liable to pay service tax to the VENDORS separately as applicable.

    5.   On the other hand the learned counsel for opposite party No.2 in their written argument had pointed out took 9 Para of the beginning he mentioned that opposite party is not liable for the delay caused in comply the agreement.  Clause 9 of the agreement reads thus:

9. It is agreed between the parties that the VENDORS shall not be held responsible for any delay to handover the B Schedule house site within the stipulated period, if such delay is caused also due to any acts of God, Delay in getting power supply, water connection.  U.G.D. Connection, or any other licences or permissions from any government and the statutory authorities or for any other bonafide reasons beyond the VENDORS control.

It is also agreed by the PURCHASER that, the VENDORS shall be given 3(three) months grace period excluding the period of delay caused to complete the project due to the aforesaid reasons. If the VENDORS further delays the completion and handing over the B Schedule house site to the PURCHASER, the PURCHASER is at liberty to take any of the following action.

    6.   Under clause 9(a) of the agreement which is infact marked at Ex.C1 the liability of the vendors is described at clause 9 (a) reads:-

1. To issue written notice requiring the VENDORS to complete the project and handover the B Schedule residential house site to the PURCHASER within 30 days from the date of receipt of the notice to the VENDORS and in case the

VENDORS further delay the completion and fails to deliver the ‘B’ Schedule house site to the PURCHASER beyond the period mentioned above, the PURCHASE  shall be entitled to claim the interest from the VENDORS at 24% on the value of the residential house site, already paid by him. 

        7.   However the argument of the learned counsel for opposite party No.2 in respect of clause 9 do not give shelter against the claim made by the complainant  cannot be accepted for the reason that the delay caused as noted by the court Advocate Commissioner cannot be attributed to any acts of God and in respect of delay on power supply and water connection and U.G.D Connection or any other licences or permissions of any other government and statutory authorities as mentioned in the first part of Rule 9 the non completion of the work of the layout cannot be attributed to the act of God.  Hence we are of the view as the complainant had issued notice on 2.1.2013 as per Ex.C13 the complainant did invoke the remedy available at the clause 9(a) of Ex.C1 as quoted above. 

          8.  It was pointed out for opponents by referring to clause 6 of the agreement Ex.C1 that the complainant has not paid the amounts due as mentioned at annexure C of Ex.C1.  Clause 6 of agreement Ex.C1 and annexure C the second portion as to the amounts paid subsequent to the date of Ex.C1 date of the agreement on 29.8.2008 reads thus:

6. It is agreed that the time of payment is the essence of this Agreement and the PURCHASER shall not default in making timely payments of any of the instalments as mentioned in the payment Schedule Annexure C and any other amounts.  

        9.  Payment schedule portion and actual payment made date by complainant are:

    10.   Even though under clause 6 there is a certain agreement for the payments and there are certain delay by the complainant in making payments as seen from the above tabulation it was open to the opposite parties to seek remedies from complainant under the agreement.  However it seems to us the opponents have not approached any Forum for delay caused in making payments by complainant as mentioned at in Schedule c read with clause 6 of the agreement Ex.C1.  Hence opposite parties cannot be permitted to take it as a defence in view of their failure to comply with other terms of Ex.C1.       

11.    Infact has already mentioned and quoted from clause 9 (a) opposite party has agreed to pay interest at 24% on their amount already paid by the complainant purchaser.  As such considering that opposite parties failed to abide by the terms of the agreement of Ex.C1 the complainant having exercised his rights under clause 9(a) of agreement of sale deed of Ex.C1 in view of legal notice Ex.C13 dated 2.1.2013 the complainant in our considered view established in proving deficiency in service on the part of the opposite parties.  Hence we are of opinion that opposite parties shall be directed to pay interest at 24% on Rs.11,08,800/commencing 30 days from the date of Ex.C13 till the date of payment. 

12.      It was contended for opposite parties that the remedy available to complainant was to approach Civil Court for specific performance and also with remedy to forfeit the contract.  However opposite party cannot dictate terms to complainant as to which Forum the complainant has to approach to remedy his grievances when there are more than one avenue and Forums are available to him nearly because the complainant has remedy available under Specific Act does not rest the jurisdiction of this Forum to the complainant to pursue his remedy C P Act 1986.

13.     Reference was also made by learned counsel for opposite party in their written argument there is an arbitration clause.  However a clause pertaining to arbitration in the agreement for sale does not preclude complainant from approaching this Forum for the Redressal of his remedies available to him under Ex.C1. Infact the learned counsel for complainant referring to the arbitration clause and the scope of the Forum to entertain a complainant of the present nature has drawn our attention to a reported judgment of Supreme Court of India in Skypak Couriers ltd. And others Vs Tata Chemicala Ltd and others in 2000 Legal Eagle (SC) 1007.  In this reported judgment by referring to section 2(1) (c) of 12, 14, 18 and 22 it is held interaila thus:

CONSUMER PROTECTION ACT, 1986

Arbitration clause- Section 2(1)(c) , 12, 14, 18 and 22 Existence of arbitration clause in the agreement is no bar for entertaining the complaint under the Consumer Protection Act, 1986.  In the absence of any provision in the Act itself, authorising the Commission to refer a pending proceeding before it, on receipt of a complaint from a consumer, for being settled through a consensual adjudication, the conclusion is irresistible that the Commission under the Consumer Protection Act do not have the jurisdiction to refer the dispute for a consensual adjudication and then make the said decision o the so-called consensual arbitrator an order of the Commission itself. Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.Thus the argument for opponents on this count is rejected.

     14. Another point canvassed for defence is that the prayer of complainant for payment by him is not as per contract Ex.C1and as such the question of payment of interest does not come within the preview of the C P Act as it is of civil nature.  However clause 9 (a) of Ex.C1 is a provision intending to compel opposite parties to complete the projects as per terms of Ex.C1 so long it is not done and so long it is not completed.  It amounts to in our view the deficiency of service entitling the complainant to enforce the said penal provision even before this Forum.  Hence the objection raised on this ground of opposite parties is also rejected. 

15.    In the circumstances for the reason discussed above the complainant succeeded in proving deficiency in service has claimed.  Hence we answer point No.2 in the affirmative.

16.      In this case in the relief column the complainant claimed interest at 24% from the date of Ex.C1 the sale agreement that is from 29.8.2008.  But under clause 9(a) quoted above the entitlement of complainant for interest at 24% is on the value of the residential house site already paid by him and the date as to be reckoned with in after 30 days from the date of service of notice as per Ex.C13.  Hence the interest as to be calculated on Rs.11,08,800/ from 4.2.2013 as the notice was served on opposite party No.2 the Managing Partner of opposite party No.1 on 4.1.2013 as seen from Ex.C14 the postal acknowledgment.  Hence interest has to be calculated on 11,08,800/ at 24% commencing from 4.2.2013 only till the date of filing of the complaint on 7.6.2014.  The opposite parties shall also be directed to pay future interest i.e. from 8.6.2014 on Rs.11,08,800/ at 12% till the date of payment of the amount to the complainant.  The opponents shall also be directed to pay interest at 12% on the calculated interest amount as per relief as above till the date of payment.  Further opposite parties shall also be directed to pay compensation assessed at Rs.25,000/ and cost of legal notice fixed at Rs.1,000/ and also the cost of the complaint, advocate fee fixed at Rs. 3000/. 

POINTS No. (iii): Wherefore the following order

                                                                                                                        ORDER

 The complaint is allowed with costs.

1.   The opposite parties are directed to pay interest to be calculated on 11,08,800/ at 24% commencing from 4.2.2013 only till the date of filing of the complaint on 7.6.2014. 
2. The opposite parties are directed to pay future interest i.e. from 8.6.2014 on Rs.11,08,800/ at 12% till the date of payment of the amount to the complainant. 
3. The opponents are also directed to pay interest at 12% on the calculated interest amount as per relief (1) above till the date of payment. 
4. Further opposite parties are directed to pay compensation assessed at Rs.25,000/ and cost of legal notice fixed at Rs.1,000/ and also the cost of the complaint, advocate fee fixed at Rs. 3000/. 
5. Payment shall be made within 30 days from the date of receipt of the copy of this order.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 14 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 15^th December 2016)

             MEMBER                                              PRESIDENT

(SRI. T.C. RAJASHEKAR)              (SRI. VISHWESHWARA BHAT D)

D.K. District Consumer Forum                D.K. District Consumer Forum

 Additional Bench, Mangalore                  Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Lava Kumar P M

Documents marked on behalf of the Complainant:

Ex.C1: 29.08.2008     : Copy of the Agreement for sale entered into Between the complainant and the opposite Parties

Ex.C2: 12.06.2008     : Receipt issued by the opposite party for Paying Rs.15,000/

Ex.C3: 19.07.2008     : Receipt issued by the opposite party for Paying Rs.2,00,000/ 

Ex.C4: 23.08.2008     : Receipt issued by the opposite party for Paying Rs.1,00,000/

Ex.C5:25.08.2008      : Receipt issued by the opposite party for Paying Rs.85,000/

Ex.C6: 07.10.2008      : Receipt issued by the opposite party for Paying Rs.1,40,000/  

Ex.C7: 24.10.2008      : Receipt issued by the opposite party for Paying Rs.1,00,000/ 

Ex.C8:28.02.2009       : Receipt issued by the opposite party for Paying Rs.1,00,000/ 

Ex.C9:11.06.2009       : Receipt issued by the opposite party for Paying Rs.3,00,000/

Ex.C10:6.8.2010         : Receipt issued by the opposite party for Paying Rs. 68,000/

Ex.C11:                      : Broacher of the opposite party regarding  the Blue Heaven Project

Ex.C12:7.12.2012        : E-mail addressed to the opposite party by the complainant

Ex.C13:2.1.2013          : First legal notice sent to the opposite party by the complainant

Ex.C14:                       : Postal Acknowledgment sent to 1^st opposite party

Ex.C15: 27.1.2014         : Second legal notice sent to the opposite party by the complainant

Ex.C16:                         : Postal Acknowledgment (one in number)

Ex.C17:                         : Unclaimed postal envelope with A.D form

Ex.C18 (a) :27.1.2014     : Legal Notice with unclaimed postal Envelope and AD

Ex.C19 (a) :27.1.2014     : Legal Notice with unclaimed postal Envelope and AD

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Pramod Gupta Partner M.S. BRP Developers

Documents marked on behalf of the Opposite Parties:

 Nil 

COURT DOCUMENT: Commissioners Report

Dated:  15.12.2016                                         PRESIDENT