Adarsh Developers V/S C.K. Sabareeshan - Consumer Court Case

Karnataka

Bangalore Urban

CC/09/1189

C.K. Sabareeshan - Complainant(s)

Versus

Adarsh Developers - Opp.Party(s)

06 Jun 2009

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/09/1189

C.K. Sabareeshan						...........Appellant(s)
Vs.
Adarsh Developers						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED ON: 25.05.2009 DISPOSED ON: 29.09.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 29TH SEPTEMBER 2010 PRESENT:- SRI. B.S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO.1189/2009 COMPLAINANTS 1. Mr. C.K. Sabareeshan, S/o Late C.R. Kalyanakrishnan, Aged about 54 years, Parvathikripa, Apartment No.GB, Sankalp Parvathi, 1028/2, Jayalakshmi Road, Chamarajapuram, Mysore 570 005. 2. Mrs. Jayashree Sabareeshan, W/o Mr. C.K. Sabareeshan, Aged about 50 years, Parvathikripa, Apartment No.GB, Sankalp Parvathi, 1028/2, Jayalakshmi Road, Chamarajapuram, Mysore 570 005. Advocate: Sri. Shyamal Mukerjee V/s. OPPOSITE PARTY M/s Adarsh Developers, A Partnership form having its office at No.10, Vittal Malya Road, Bangalore. Rep: by its Partner Sri. B.M. Karunesh Advocate: Sri. Vishwanath R.Hegde O R D E R The complainants filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P) to: a) Pay the amount of Rs.71,340/- as penalty for the delay in handing over possession. b) Rs.87,000/- being the difference in the deposits payable to BWSSB / BESCOM borne by the complainants. c) Rs.2,41,189/- being the difference in Stamp Duty and Registration charges borne by the complainants. d) Rs.1,00,000/- being the compensation for not allotting the two park slots in the same block. e) Rs.39,905/- being the difference in upfront payment benefit payable to the complainants but withheld by them. f) Rs.25,000/- to the cost of litigation. g) To register the apartment in the name of the complainants as per the agreement to sale. h) To pay damages of Rs.10,000/- for the inconvenience caused by postponement of registration and further to compensate the complainants at Rs.100/- per day if the parties delays the registration of the unit by more than one month from the original date fixed for the registration i.e. on 26.06.2009. On the allegations of deficiency in service on the part of the OP. 2. In the complaint it is stated that OP is a Developer in the business of building apartments and Adarsh Rhythm is one of such apartment constructed by it. OP approached the complainants with an offer to sell a unit in the said apartment with an assurance that the unit would be completed and possession handed over within 22 months from the date of approval of plan by the authorities. The complainants believing the assurances entered into an agreement to sell on 28.11.2005. OP had given the cost break-up which had to be paid by the complainants as a consideration to the said flat. The schedule payment which forms part of the agreement indicates as to how much and when the purchaser has to pay the consideration to the OP. Subsequently when the complainants sought the actual schedule of payment by their mail dated 28.12.2005 OP replied giving detailed schedule. The first installment commenced on 30.11.2005 and the last installment was due on 31.08.2007 at the time of giving possession. The complainants paid the installments ahead of time and paid the entire consideration by 28.02.2006. Only BESCOM / BWSSB deposits, registration, stamp duty charges, legal charges and maintenance deposit totally amounting to Rs.5,73,932/- was payable by the complainants at the time of possession. The OP considering the upfront and prompt payments made by the complainants, gave benefit of Rs.1,92,329/- which was to be deducted from the balance payments to be made at the time of handing over the possession. The complainants in order to pay the consideration to the OP had obtained loan from ICICI bank on 28.02.2006 for Rs.31,85,000/-. The OP did not complete the construction within 22 months as agreed in the agreement to sell. The interest on the loan borrowed by the complainants was mounting without the unit getting ready; they were apprehensive as they had borrowed with the hope that the unit would be ready to let out so as to offset the burden of the payment towards interest on loan. The delay in handing over the flat by OP caused enormous loss to the complainants. Finally OP wrote to the complainants that the unit was ready for registration and possession on 15th March 2009. The possession was, however handed over on 17th April 2009. Thus the delay was 20½ months. During this period the stamp duty for registration and deposits to BWSSB / BESCOM had gone up. The OP demanded payment of Rs.2,61,000/- towards the deposits of BESCOM / BWSSB as against Rs.1,74,000/- demanded earlier. Similarly stamp duty and registration charges went up from Rs.1,53,732/- to Rs.3,94,921/-. The plan was sanctioned on 15.11.2005 and the agreement to sell was executed on 28.11.2005. Hence the OP was liable to complete the construction and put the complainants in possession of their unit by 31st August 2007. It was agreed by the OP that in the event he fails to deliver the possession of the apartment within the stipulated period then the purchaser would be entitled for Rs.2/- per sq. ft. per month of delay by way of damages. There is delay of 20½ months in handing over possession; OP is liable to pay Rs.71,340/- as penalty at the rate of Rs.2/- per sq. ft. for 1740 sq. ft. super built up area. The complainants have suffered damages in consequent to the delay in handing over possession they are entitled for these damages. The complainants had paid the installments in advance and were given upfront payment benefit amounting to Rs.1,92,329/- by the OP. However for some inexplicable reason it was reduced to Rs.1,52,424/-. The reason given was that an error in calculating it. The complainants are entitled to unpaid upfront payment benefit of Rs.39,905/-. Under the agreement to sell the complainants were entitled to two car parking spaces in the basement along with the flat. However, one year of the execution of the agreement to sell, the OP informed the complainants that it was not possible to allot two car park slots in one basement floor and allotted two slots in two different blocks (buildings). The buildings are far apart and the whole purpose of purchasing two car parks along with the unit would have been defeated by accepting such an arrangement. The complainants have protested this arrangement not allotting the car park slots in the same buildings amounts to deficiency in service. Hence the complainants are entitled for compensating for the deficiency in service. The complainants are entitled to penalty as provided in the agreement they are also entitled to the difference in deposit to BWSSB / BESCOM and stamp duty amounting to Rs.87,000/- and Rs.2,41,189/- respectively. OP on coming to know about the complaint filed before this Forum postponed the registration of the complainants unit which was earlier scheduled for 26th June 2009. The said action of the OP leads to further deficiency of service and puts the complainants under heavy hardship. The complaint preferred has nothing to do with the postponement of registration. OP is enormously deficient in services by not performing the obligation on his part under the agreement to sale and has to compensate the complainants. The complainants have suffered enormous mental and physical harassment; they have also incurred huge financial liabilities due to the delay caused by the OP. Hence the complaint seeking the above stated reliefs. 3. On appearance, OP filed version admitting that the complainants agreed to purchase a unit in the Adarsh Rhythm the project which was taken up by OP and OP assured that the unit would be completed and possession handed over within 22 months from the date of approval of plan by the authorities. It is also admitted that the complainants sought the actual schedule of payment by their mail 28.12.2005; OP replied giving a detailed schedule and the first installment commenced on 30.11.2005 and the last installment was due on 31.08.2007 at the time of giving possession. It is admitted that BESCOM / BWSSB deposits, registration, stamp duty charges, legal charges and maintenance deposit totaling to Rs.5,73,932/- was payable by the complainants at the time of taking possession. Further it is admitted that considering the upfront and prompt payment made by the complaints; they were given a benefit of Rs.1,92,329/- which was to be deducted from the balance payments to be made at the time of handing over possession. The allegation that the complainants availed loan from ICICI bank is not within the knowledge of the OP. The allegation that OP wrote the complainant that unit was ready for registration and possession on 15.03.2009 and further the possession was however, handed over on 17.04.2009 and thus the delay was 20½ months is not fully true. It is admitted that during this period, the stamp duty for registration and deposits to BWSSB / BESCOM had gone up and the OP demanded payment of Rs.2,61,000/- towards the deposits of BESCOM / BWSSB as against Rs.1,74,000/- demanded earlier may be true. However the same is for the reasons beyond the control of the OP which cannot be held against the OP. The allegation that OP had agreed to complete the construction within 22 months and the plan was sanctioned on 15.11.2005 and the agreement was executed on 28.11.2005 and that the OP was liable to complete the construction and put the complainants in possession of their unit by 31.08.2007 is not admitted. The allegation that OP has agreed that in the event of he fails to deliver the possession of the apartment within the stipulated period then the purchaser would be entitled for Rs.2/- per sq. ft. per month of delay by way of damages is not admitted. OP denied the allegation that possession was handed over on 17.04.2009 causing delay of 20½ months and thus liable to pay an amount of Rs.71,340/- as penalty for the delay in handing over possession for 20½ months. The allegation that the complainants were entitled to two car parking spaces in the basement along with the flat is not fully true. The OP informed the complainants that it was not possible to allot two car park slots in one basement floor and allotted the slots in two different blocks. The complainants agreed that additional car parking space depending upon the availability of the car parking space only in the same block and it was allotted to additional car parking space, the complainants were very well aware of the allotment of the additional car parking space in the adjoining block which is very closely situated. It is denied that the complainants could have saved on the escalation of deposits to BWSSB / BESCOM and stamp duty, if OP has completed the construction and handed over possession as per schedule and that OP is liable to pay the penalty of difference of amount with regard to the deposits to BWSSB / BESCOM. The complainants failed to prove the mental as well as physical harassment caused by the OP. It is admitted that the registration of the unit scheduled for 26.06.2009 was postponed. The complainants having entered into an agreement to sell dated 28.11.2005 are bound to adhere to the terms and conditions stipulated under the said agreement. OP is ever ready to willing the register the sale deed provided the complainants deposit the necessary charges for the same and withdraw the complaint. The complainants having received the intimation regarding the date fixed for registration of the sale deed have rushed to this Forum with illegal intentions. There is no cause of action for the complaint. Hence it is prayed to dismiss the complaint with exemplary costs. 4. In order to substantiate the complaint averments, the complainants filed affidavit evidence and produced documents. The partner of the OP filed affidavit evidence and produced documents in support of the defence version. 5. Both parties filed written arguments. Arguments heard. Points for consideration: Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OP? Point No.2:- If so, whether the complainants are entitled for the relief now claimed? Point No.3:- To what Order? 6. We have gone through the pleadings, the affidavit and documentary evidence, written arguments filed and taken into consideration the points urged at the time of arguments. We record our findings on the above points: Point No.1:- In Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 7. At the outset it is not at dispute that the complainants being the husband and wife approached OP for purchasing a apartment in Adarsh Rhythm and entered into an agreement to sell on 28.11.2005. The schedule of payment towards the cost of the apartment to be constructed was incorporated in the agreement deed; the approximate cost break up of the flat No.002 in block D is shown at Rs.47,30,994/- as per the letter dated 23.12.2005 issued by OP to the complainants, the flat cost (including two car park) is shown at Rs.41,57.062/-. As per the terms of the agreement the parties shall complete the sale of schedule B and schedule C property in all respects in terms of the agreement within 22 months from the date of plan sanction. Further it was agreed that in the event of delay in handing over possession, the developers agreed to pay to the purchaser Rs.2/- per sq. ft. of area of the apartment per month for a delay by way of damages. The date of sanction of the plan is 15.11.2005. The first installment of payment commenced on 30.11.2005 and the last installment was due on 31.08.2007 at the time of giving possession. Though OP agreed to complete the construction within 22 months from the date of plan sanction and the plan was sanctioned on 15.11.2005, the complainants were to be put in possession of the apartment by 31.08.2007, but the possession was handed over on 17.04.2009; thereby causing delay of 20½ months. Thus the complainants are claiming by way of penalty at the rate of Rs.2/- per sq. ft. for 1740 sq. ft. super built up area per month for a period of 20½ months which works out at Rs.71,340/-. In the version filed OP has not set up any justifiable cause for the delay in handing over possession. In the affidavit evidence at para 7 the partner of the OP has come up with a defence that due to strike of cement and sand industry and the same was beyond the control of OP. In the version there is no such defence, but for the first time in the affidavit evidence OP has come with the reasons for the delay, the same cannot be accepted. OP has not produced any material to show that during that relevant period there was any strike with regard to cement and sand industry. As per the terms of the agreement OP has agreed to pay Rs.2/- per sq. ft. area of the apartment per month of delay by way of damages. Therefore the complainants are justified in claiming an amount of Rs.71,340/- as damages for the delay 20½ months of the delay in handing over possession of flat. The very fact of OP not completing the construction and handing over the possession within stipulated period amounts to deficiency in service on its part. 8. The complainants paid the entire amount a head of time, as they paid the entire consideration by 28.02.2006; as such they were given upfront benefit amounting to Rs.1,52,424/-, but the complainants claims that the benefit for upfront payment was amounting to Rs.1,92,329/-, OP reduced the same to Rs.1,52,424/- for some inapplicable reason. Hence they claim the difference of the amount which was reduced to an extent of Rs.39,905/-. Annexure 5 is the letter produced by the complainants. In the said letter OP informed the complainants that the benefit offered for the upfront payment is approximately Rs.1,92,329/-. The exact amount will be calculated at the time of possession based on the actual completion of the events. From this letter it becomes clear that the amounts stated at Rs.1,92,329/- was approximately worked out, but the actual amount was calculated at Rs.1,52,424/-. Therefore the complainants cannot claim the approximate amount worked out as the amount which was payable by OP towards upfront payment made. Accordingly we are of the view that the complainants are not entitled for an amount of Rs.39,905/- claimed as unpaid upfront payment benefit. 9. In the letter dated 23.12.2005 while furnishing the cost break up of the flat; OP has shown BWSSB and BESCOM deposit at Rs.1,74,000/-. As per reply for the e-mail BWSSB and BESCOM deposit is shown as Rs.2,61,000/- as such there was increase of Rs.87,000/- in deposit. The complainants claims that the increase in deposit of Rs.87,000/- towards the deposit of BWSSB and BESCOM is only on account of the delay in completion of the construction and handing over the possession, as such OP is liable to reimburse that amount of Rs.87,000/-. OP in the reply e-mail informed the complainants that the increase in deposit by BESCOM and BWSSB is reasonable by taking into consideration of competitors tariff. In our view the statutory deposits are required to be paid to BESCOM and BWSSB by the purchasers. Merely because the estimation of the deposit while furnishing the cost break up was shown at Rs.1,74,000/- it cannot be said that OP cannot demand the increase in deposit by the statutory authorities. There is no justification to claim the amount towards increase in deposit amounting to Rs.87,000/- from OP. The complainants are not entitled for the said sum. 10. In the said letter dated 23.12.2005 issued by OP the registration and stamp duty charges is shown at Rs.1,53,732/-. The complainants claims that the stamp duty and registration charges works out at Rs.3,94,921/-, as against the amount of Rs.1,53,732/-, as such due to delay in completion of the construction and handing over the possession, the complainants were made to pay the difference in stamp duty and registration charges to an extent of Rs.2,41,189/-, OP is liable to pay the said difference amount. In our view the stamp duty and registration charges are to be borne by the complainants for the sale deed. The present stamp duty and registration charges are reduced from 8.5% to 6.72% with effect from 01.04.2009 as per the amendment to the Karnataka Stamp (Amendment) Act as such it cannot be said that on account of the delay in completion of the construction, the complainants were made to bear higher stamp duty and registration charges. It appears that the stamp duty and registration charges was worked out on the Government guidance value and the same was shown at Rs.1,53,732/-, while furnishing approximate cost break up of the flat. If the stamp duty and registration charges was worked on the actual cost of the flat at 8.5% it would have been more than the amount shown in the approximate cost break up. Under these circumstances we are of the view that there is no justification to claim the amount of Rs.2,41,189/- towards the difference in stamp duty and registration charges. 11. The complainants claims that as per the agreement to sell; they were entitled to two car parking slots in the basement along with the flat, OP allotted only one car parking slot in the basement floor and another car parking slot is allotted in a different block, which is for away from the purchased flat. Therefore the act of OP in not allotting two car park slots in the same basement floor amounts to deficiency in service, the complainants are entitled for compensation for the same. Though as per the agreement to sell OP agreed to allot two car parking slots in the basement along with the flat, but OP has brought to the notice of the complainants by the letter dated 16.11.2006 that it would not be possible to provide two car park slots in the same block. OP has allotted another car park slot in the adjacent block and one car parking slot is allotted in the same block where the flat purchased is situated. The complainants have not protested with regard to allotment of car parking slot in the adjacent block. In case if the complainants were not agreeable for the car park slot to be allotted in the adjacent block, they would have replied to the letter of the OP dated 16.11.2006 protesting the allotment of car parking slot in different block. When the complainants have accepted that allotment, it cannot be said that the same amounts to deficiency in service on the part of the OP and complainants are entitled to claim compensation of Rs.1,00,000/- towards the said deficiency in service. 12. It is not at dispute that the registration of the complainants unit was scheduled for 26.06.2009. The complainants presented this complaint on 25.05.2009. On admission notice was issued to the OP. OP by e-mail communication dated 25.06.2009 informed the complainants that as per the instruction received from their legal department, they have called of registration which was scheduled 26.06.2009. By way of amendment, the complainants sought the reliefs to direct the OP to register the sale deed as per the agreement of sale and to pay compensation of Rs.10,000/- on account of delay in registration. In our view as the complainants have filed the complaint, OP as per the advice of the legal department postponed execution of the registered sale deed. OP had already fixed the date for registration, hence it cannot be said that OP purposely postponed the execution of the sale deed. Even now OP is ready to execute the sale deed and register the same. Therefore we are of the view that the postponement of the registration of the sale deed cannot be held to be deficiency in service on the part of the OP. 13. The complainants have availed loan from ICICI bank on 28.02.2006 to an extent of Rs.31,85,000/-. It appears that loan amount was directly released in favour of the OP. The complainants expected that OP would complete construction within the stipulated period and deliver possession of the flat and they can let out the same and get the monthly rent as financial assistance for paying interest on the loan availed. OP was unable to complete the construction and deliver possession of the flat within stipulated period. However in the agreement deed itself an amount of Rs.2/- per sq. ft. per month was fixed as damages for the delayed period, the complainants cannot claim anything more than the agreed amount even if they have suffered financial loss towards interest payable on the loan availed. Under these circumstances we are of the view that the complainants are entitled for an amount of Rs.71,340/- making the same to round figure at Rs.71,500/- towards damages for the delay in handing over possession of the flat and for the direction to OP to register the apartment as per the terms of the agreement deed. Accordingly we proceed to pass the following: O R D E R The complaint filed by the complainants allowed in part. OP is directed to execute the registered sale deed in respect of the apartment purchased in favour of the complainants as per the terms of the agreement to sell and to pay an amount of Rs.71,500/- towards damages for the delay in handing over the possession of the flat with litigation cost of Rs.5,000/- to the complainants. This order is to be complied within four weeks from the date of communication of this order. Send copy of this order to both the parties free of costs. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 29th day of September 2010) PRESIDENT MEMBER MEMBER s.n.m.

COMPLAINT FILED ON: 25.05.2009 DISPOSED ON: 29.09.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 29TH SEPTEMBER 2010 PRESENT:- SRI. B.S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO.1189/2009 COMPLAINANTS 1. Mr. C.K. Sabareeshan, S/o Late C.R. Kalyanakrishnan, Aged about 54 years, Parvathikripa, Apartment No.GB, Sankalp Parvathi, 1028/2, Jayalakshmi Road, Chamarajapuram, Mysore 570 005. 2. Mrs. Jayashree Sabareeshan, W/o Mr. C.K. Sabareeshan, Aged about 50 years, Parvathikripa, Apartment No.GB, Sankalp Parvathi, 1028/2, Jayalakshmi Road, Chamarajapuram, Mysore 570 005. Advocate: Sri. Shyamal Mukerjee V/s. OPPOSITE PARTY M/s Adarsh Developers, A Partnership form having its office at No.10, Vittal Malya Road, Bangalore. Rep: by its Partner Sri. B.M. Karunesh Advocate: Sri. Vishwanath R.Hegde O R D E R The complainants filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P) to: a) Pay the amount of Rs.71,340/- as penalty for the delay in handing over possession. b) Rs.87,000/- being the difference in the deposits payable to BWSSB / BESCOM borne by the complainants. c) Rs.2,41,189/- being the difference in Stamp Duty and Registration charges borne by the complainants. d) Rs.1,00,000/- being the compensation for not allotting the two park slots in the same block. e) Rs.39,905/- being the difference in upfront payment benefit payable to the complainants but withheld by them. f) Rs.25,000/- to the cost of litigation. g) To register the apartment in the name of the complainants as per the agreement to sale. h) To pay damages of Rs.10,000/- for the inconvenience caused by postponement of registration and further to compensate the complainants at Rs.100/- per day if the parties delays the registration of the unit by more than one month from the original date fixed for the registration i.e. on 26.06.2009. On the allegations of deficiency in service on the part of the OP. 2. In the complaint it is stated that OP is a Developer in the business of building apartments and Adarsh Rhythm is one of such apartment constructed by it. OP approached the complainants with an offer to sell a unit in the said apartment with an assurance that the unit would be completed and possession handed over within 22 months from the date of approval of plan by the authorities. The complainants believing the assurances entered into an agreement to sell on 28.11.2005. OP had given the cost break-up which had to be paid by the complainants as a consideration to the said flat. The schedule payment which forms part of the agreement indicates as to how much and when the purchaser has to pay the consideration to the OP. Subsequently when the complainants sought the actual schedule of payment by their mail dated 28.12.2005 OP replied giving detailed schedule. The first installment commenced on 30.11.2005 and the last installment was due on 31.08.2007 at the time of giving possession. The complainants paid the installments ahead of time and paid the entire consideration by 28.02.2006. Only BESCOM / BWSSB deposits, registration, stamp duty charges, legal charges and maintenance deposit totally amounting to Rs.5,73,932/- was payable by the complainants at the time of possession. The OP considering the upfront and prompt payments made by the complainants, gave benefit of Rs.1,92,329/- which was to be deducted from the balance payments to be made at the time of handing over the possession. The complainants in order to pay the consideration to the OP had obtained loan from ICICI bank on 28.02.2006 for Rs.31,85,000/-. The OP did not complete the construction within 22 months as agreed in the agreement to sell. The interest on the loan borrowed by the complainants was mounting without the unit getting ready; they were apprehensive as they had borrowed with the hope that the unit would be ready to let out so as to offset the burden of the payment towards interest on loan. The delay in handing over the flat by OP caused enormous loss to the complainants. Finally OP wrote to the complainants that the unit was ready for registration and possession on 15th March 2009. The possession was, however handed over on 17th April 2009. Thus the delay was 20½ months. During this period the stamp duty for registration and deposits to BWSSB / BESCOM had gone up. The OP demanded payment of Rs.2,61,000/- towards the deposits of BESCOM / BWSSB as against Rs.1,74,000/- demanded earlier. Similarly stamp duty and registration charges went up from Rs.1,53,732/- to Rs.3,94,921/-. The plan was sanctioned on 15.11.2005 and the agreement to sell was executed on 28.11.2005. Hence the OP was liable to complete the construction and put the complainants in possession of their unit by 31st August 2007. It was agreed by the OP that in the event he fails to deliver the possession of the apartment within the stipulated period then the purchaser would be entitled for Rs.2/- per sq. ft. per month of delay by way of damages. There is delay of 20½ months in handing over possession; OP is liable to pay Rs.71,340/- as penalty at the rate of Rs.2/- per sq. ft. for 1740 sq. ft. super built up area. The complainants have suffered damages in consequent to the delay in handing over possession they are entitled for these damages. The complainants had paid the installments in advance and were given upfront payment benefit amounting to Rs.1,92,329/- by the OP. However for some inexplicable reason it was reduced to Rs.1,52,424/-. The reason given was that an error in calculating it. The complainants are entitled to unpaid upfront payment benefit of Rs.39,905/-. Under the agreement to sell the complainants were entitled to two car parking spaces in the basement along with the flat. However, one year of the execution of the agreement to sell, the OP informed the complainants that it was not possible to allot two car park slots in one basement floor and allotted two slots in two different blocks (buildings). The buildings are far apart and the whole purpose of purchasing two car parks along with the unit would have been defeated by accepting such an arrangement. The complainants have protested this arrangement not allotting the car park slots in the same buildings amounts to deficiency in service. Hence the complainants are entitled for compensating for the deficiency in service. The complainants are entitled to penalty as provided in the agreement they are also entitled to the difference in deposit to BWSSB / BESCOM and stamp duty amounting to Rs.87,000/- and Rs.2,41,189/- respectively. OP on coming to know about the complaint filed before this Forum postponed the registration of the complainants unit which was earlier scheduled for 26th June 2009. The said action of the OP leads to further deficiency of service and puts the complainants under heavy hardship. The complaint preferred has nothing to do with the postponement of registration. OP is enormously deficient in services by not performing the obligation on his part under the agreement to sale and has to compensate the complainants. The complainants have suffered enormous mental and physical harassment; they have also incurred huge financial liabilities due to the delay caused by the OP. Hence the complaint seeking the above stated reliefs. 3. On appearance, OP filed version admitting that the complainants agreed to purchase a unit in the Adarsh Rhythm the project which was taken up by OP and OP assured that the unit would be completed and possession handed over within 22 months from the date of approval of plan by the authorities. It is also admitted that the complainants sought the actual schedule of payment by their mail 28.12.2005; OP replied giving a detailed schedule and the first installment commenced on 30.11.2005 and the last installment was due on 31.08.2007 at the time of giving possession. It is admitted that BESCOM / BWSSB deposits, registration, stamp duty charges, legal charges and maintenance deposit totaling to Rs.5,73,932/- was payable by the complainants at the time of taking possession. Further it is admitted that considering the upfront and prompt payment made by the complaints; they were given a benefit of Rs.1,92,329/- which was to be deducted from the balance payments to be made at the time of handing over possession. The allegation that the complainants availed loan from ICICI bank is not within the knowledge of the OP. The allegation that OP wrote the complainant that unit was ready for registration and possession on 15.03.2009 and further the possession was however, handed over on 17.04.2009 and thus the delay was 20½ months is not fully true. It is admitted that during this period, the stamp duty for registration and deposits to BWSSB / BESCOM had gone up and the OP demanded payment of Rs.2,61,000/- towards the deposits of BESCOM / BWSSB as against Rs.1,74,000/- demanded earlier may be true. However the same is for the reasons beyond the control of the OP which cannot be held against the OP. The allegation that OP had agreed to complete the construction within 22 months and the plan was sanctioned on 15.11.2005 and the agreement was executed on 28.11.2005 and that the OP was liable to complete the construction and put the complainants in possession of their unit by 31.08.2007 is not admitted. The allegation that OP has agreed that in the event of he fails to deliver the possession of the apartment within the stipulated period then the purchaser would be entitled for Rs.2/- per sq. ft. per month of delay by way of damages is not admitted. OP denied the allegation that possession was handed over on 17.04.2009 causing delay of 20½ months and thus liable to pay an amount of Rs.71,340/- as penalty for the delay in handing over possession for 20½ months. The allegation that the complainants were entitled to two car parking spaces in the basement along with the flat is not fully true. The OP informed the complainants that it was not possible to allot two car park slots in one basement floor and allotted the slots in two different blocks. The complainants agreed that additional car parking space depending upon the availability of the car parking space only in the same block and it was allotted to additional car parking space, the complainants were very well aware of the allotment of the additional car parking space in the adjoining block which is very closely situated. It is denied that the complainants could have saved on the escalation of deposits to BWSSB / BESCOM and stamp duty, if OP has completed the construction and handed over possession as per schedule and that OP is liable to pay the penalty of difference of amount with regard to the deposits to BWSSB / BESCOM. The complainants failed to prove the mental as well as physical harassment caused by the OP. It is admitted that the registration of the unit scheduled for 26.06.2009 was postponed. The complainants having entered into an agreement to sell dated 28.11.2005 are bound to adhere to the terms and conditions stipulated under the said agreement. OP is ever ready to willing the register the sale deed provided the complainants deposit the necessary charges for the same and withdraw the complaint. The complainants having received the intimation regarding the date fixed for registration of the sale deed have rushed to this Forum with illegal intentions. There is no cause of action for the complaint. Hence it is prayed to dismiss the complaint with exemplary costs. 4. In order to substantiate the complaint averments, the complainants filed affidavit evidence and produced documents. The partner of the OP filed affidavit evidence and produced documents in support of the defence version. 5. Both parties filed written arguments. Arguments heard. Points for consideration: Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OP? Point No.2:- If so, whether the complainants are entitled for the relief now claimed? Point No.3:- To what Order? 6. We have gone through the pleadings, the affidavit and documentary evidence, written arguments filed and taken into consideration the points urged at the time of arguments. We record our findings on the above points: Point No.1:- In Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 7. At the outset it is not at dispute that the complainants being the husband and wife approached OP for purchasing a apartment in Adarsh Rhythm and entered into an agreement to sell on 28.11.2005. The schedule of payment towards the cost of the apartment to be constructed was incorporated in the agreement deed; the approximate cost break up of the flat No.002 in block D is shown at Rs.47,30,994/- as per the letter dated 23.12.2005 issued by OP to the complainants, the flat cost (including two car park) is shown at Rs.41,57.062/-. As per the terms of the agreement the parties shall complete the sale of schedule B and schedule C property in all respects in terms of the agreement within 22 months from the date of plan sanction. Further it was agreed that in the event of delay in handing over possession, the developers agreed to pay to the purchaser Rs.2/- per sq. ft. of area of the apartment per month for a delay by way of damages. The date of sanction of the plan is 15.11.2005. The first installment of payment commenced on 30.11.2005 and the last installment was due on 31.08.2007 at the time of giving possession. Though OP agreed to complete the construction within 22 months from the date of plan sanction and the plan was sanctioned on 15.11.2005, the complainants were to be put in possession of the apartment by 31.08.2007, but the possession was handed over on 17.04.2009; thereby causing delay of 20½ months. Thus the complainants are claiming by way of penalty at the rate of Rs.2/- per sq. ft. for 1740 sq. ft. super built up area per month for a period of 20½ months which works out at Rs.71,340/-. In the version filed OP has not set up any justifiable cause for the delay in handing over possession. In the affidavit evidence at para 7 the partner of the OP has come up with a defence that due to strike of cement and sand industry and the same was beyond the control of OP. In the version there is no such defence, but for the first time in the affidavit evidence OP has come with the reasons for the delay, the same cannot be accepted. OP has not produced any material to show that during that relevant period there was any strike with regard to cement and sand industry. As per the terms of the agreement OP has agreed to pay Rs.2/- per sq. ft. area of the apartment per month of delay by way of damages. Therefore the complainants are justified in claiming an amount of Rs.71,340/- as damages for the delay 20½ months of the delay in handing over possession of flat. The very fact of OP not completing the construction and handing over the possession within stipulated period amounts to deficiency in service on its part. 8. The complainants paid the entire amount a head of time, as they paid the entire consideration by 28.02.2006; as such they were given upfront benefit amounting to Rs.1,52,424/-, but the complainants claims that the benefit for upfront payment was amounting to Rs.1,92,329/-, OP reduced the same to Rs.1,52,424/- for some inapplicable reason. Hence they claim the difference of the amount which was reduced to an extent of Rs.39,905/-. Annexure 5 is the letter produced by the complainants. In the said letter OP informed the complainants that the benefit offered for the upfront payment is approximately Rs.1,92,329/-. The exact amount will be calculated at the time of possession based on the actual completion of the events. From this letter it becomes clear that the amounts stated at Rs.1,92,329/- was approximately worked out, but the actual amount was calculated at Rs.1,52,424/-. Therefore the complainants cannot claim the approximate amount worked out as the amount which was payable by OP towards upfront payment made. Accordingly we are of the view that the complainants are not entitled for an amount of Rs.39,905/- claimed as unpaid upfront payment benefit. 9. In the letter dated 23.12.2005 while furnishing the cost break up of the flat; OP has shown BWSSB and BESCOM deposit at Rs.1,74,000/-. As per reply for the e-mail BWSSB and BESCOM deposit is shown as Rs.2,61,000/- as such there was increase of Rs.87,000/- in deposit. The complainants claims that the increase in deposit of Rs.87,000/- towards the deposit of BWSSB and BESCOM is only on account of the delay in completion of the construction and handing over the possession, as such OP is liable to reimburse that amount of Rs.87,000/-. OP in the reply e-mail informed the complainants that the increase in deposit by BESCOM and BWSSB is reasonable by taking into consideration of competitors tariff. In our view the statutory deposits are required to be paid to BESCOM and BWSSB by the purchasers. Merely because the estimation of the deposit while furnishing the cost break up was shown at Rs.1,74,000/- it cannot be said that OP cannot demand the increase in deposit by the statutory authorities. There is no justification to claim the amount towards increase in deposit amounting to Rs.87,000/- from OP. The complainants are not entitled for the said sum. 10. In the said letter dated 23.12.2005 issued by OP the registration and stamp duty charges is shown at Rs.1,53,732/-. The complainants claims that the stamp duty and registration charges works out at Rs.3,94,921/-, as against the amount of Rs.1,53,732/-, as such due to delay in completion of the construction and handing over the possession, the complainants were made to pay the difference in stamp duty and registration charges to an extent of Rs.2,41,189/-, OP is liable to pay the said difference amount. In our view the stamp duty and registration charges are to be borne by the complainants for the sale deed. The present stamp duty and registration charges are reduced from 8.5% to 6.72% with effect from 01.04.2009 as per the amendment to the Karnataka Stamp (Amendment) Act as such it cannot be said that on account of the delay in completion of the construction, the complainants were made to bear higher stamp duty and registration charges. It appears that the stamp duty and registration charges was worked out on the Government guidance value and the same was shown at Rs.1,53,732/-, while furnishing approximate cost break up of the flat. If the stamp duty and registration charges was worked on the actual cost of the flat at 8.5% it would have been more than the amount shown in the approximate cost break up. Under these circumstances we are of the view that there is no justification to claim the amount of Rs.2,41,189/- towards the difference in stamp duty and registration charges. 11. The complainants claims that as per the agreement to sell; they were entitled to two car parking slots in the basement along with the flat, OP allotted only one car parking slot in the basement floor and another car parking slot is allotted in a different block, which is for away from the purchased flat. Therefore the act of OP in not allotting two car park slots in the same basement floor amounts to deficiency in service, the complainants are entitled for compensation for the same. Though as per the agreement to sell OP agreed to allot two car parking slots in the basement along with the flat, but OP has brought to the notice of the complainants by the letter dated 16.11.2006 that it would not be possible to provide two car park slots in the same block. OP has allotted another car park slot in the adjacent block and one car parking slot is allotted in the same block where the flat purchased is situated. The complainants have not protested with regard to allotment of car parking slot in the adjacent block. In case if the complainants were not agreeable for the car park slot to be allotted in the adjacent block, they would have replied to the letter of the OP dated 16.11.2006 protesting the allotment of car parking slot in different block. When the complainants have accepted that allotment, it cannot be said that the same amounts to deficiency in service on the part of the OP and complainants are entitled to claim compensation of Rs.1,00,000/- towards the said deficiency in service. 12. It is not at dispute that the registration of the complainants unit was scheduled for 26.06.2009. The complainants presented this complaint on 25.05.2009. On admission notice was issued to the OP. OP by e-mail communication dated 25.06.2009 informed the complainants that as per the instruction received from their legal department, they have called of registration which was scheduled 26.06.2009. By way of amendment, the complainants sought the reliefs to direct the OP to register the sale deed as per the agreement of sale and to pay compensation of Rs.10,000/- on account of delay in registration. In our view as the complainants have filed the complaint, OP as per the advice of the legal department postponed execution of the registered sale deed. OP had already fixed the date for registration, hence it cannot be said that OP purposely postponed the execution of the sale deed. Even now OP is ready to execute the sale deed and register the same. Therefore we are of the view that the postponement of the registration of the sale deed cannot be held to be deficiency in service on the part of the OP. 13. The complainants have availed loan from ICICI bank on 28.02.2006 to an extent of Rs.31,85,000/-. It appears that loan amount was directly released in favour of the OP. The complainants expected that OP would complete construction within the stipulated period and deliver possession of the flat and they can let out the same and get the monthly rent as financial assistance for paying interest on the loan availed. OP was unable to complete the construction and deliver possession of the flat within stipulated period. However in the agreement deed itself an amount of Rs.2/- per sq. ft. per month was fixed as damages for the delayed period, the complainants cannot claim anything more than the agreed amount even if they have suffered financial loss towards interest payable on the loan availed. Under these circumstances we are of the view that the complainants are entitled for an amount of Rs.71,340/- making the same to round figure at Rs.71,500/- towards damages for the delay in handing over possession of the flat and for the direction to OP to register the apartment as per the terms of the agreement deed. Accordingly we proceed to pass the following: O R D E R The complaint filed by the complainants allowed in part. OP is directed to execute the registered sale deed in respect of the apartment purchased in favour of the complainants as per the terms of the agreement to sell and to pay an amount of Rs.71,500/- towards damages for the delay in handing over the possession of the flat with litigation cost of Rs.5,000/- to the complainants. This order is to be complied within four weeks from the date of communication of this order. Send copy of this order to both the parties free of costs. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 29th day of September 2010) PRESIDENT MEMBER MEMBER s.n.m.