BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE.

DATED THIS THE 9^th DAY OF JUNE 2021

PRESENT

MR. RAVISHANKAR :                         JUDICIAL MEMBER

MRS. SUNITA CHANNABASAPPA BAGEWADI  :     MEMBER

COMPLAINT NO. 36/2018

V/s

ORDER

Mr. RAVISHANKAR, JUDICIAL MEMBER

1.      This is a complaint filed by the complainant against the Opposite Party alleging deficiency in service in not registering the apartment in his favour as per the Agreement to Sell and Agreement of Construction dt.16.08.2016.  Hence, prayed for a direction against the Opposite Party to register the said apartment in his favour and also to pay compensation towards delay in delivering the possession to the complainant as per the agreement along with litigation expenses. 

2.      The averments in the complaint are as hereunder;

It is the case of the complainant that after satisfying the advertisement given by the Opposite Party had agreed to purchase a flat bearing No.1502 in Birla Apple Spire, Bangalore and entered into an Agreement to Sell and also Construction Agreement on 16.08.2016.  At the time of agreement, the Opposite Party has agreed to deliver the possession by December 2016, but, so far they have not delivered the possession and executed the sale deed in his favour.  The complainant had paid nearly Rs.89,76,162/- towards the purchase of flat.  The same was admitted by the Opposite Party and entered into an agreement.   Even inspite of payment of 90% of the sale consideration, Opposite Party has not come forward to register the sale deed in his favour and handover the possession.  Hence, the complainant prays to pay interest at the rate of 2% on the said amount along with possession of the flat as prayed by him.

3.      After service of notice, the Opposite Party appeared through his counsel and filed their version and contended that there is no any deficiency in service on their part as per the agreement.  The complainant had not paid full amount towards the construction of the apartment.  They have entered into an agreement on 16.08.2016 and agreed to handover the possession of the flat within stipulated time.  Due to unavoidable circumstances, there was delay in construction, hence, they are not able to handover the possession as agreed.  The same is not due to malafide intention and it is for force majure. 

4.      The complainant had filed this complaint mischievously in order to gain wrongfully and there is no any intentional delay in handing over the possession.  The complainant is very much know about the reasons for delay in construction.  Inspite of that the complainant filed this complaint to gain wrongfully.  During November 2016, the Government of India had announced demonetization, due to which there was a drastic change in financial functions in their firm, due to which the cash crunch in market and the weekly labour payment was made through cash, leading skeleton of labour for few months.  Thereafter, there was also Metro Station Work in front of the project site had blocked the ingress and egress in the site, thereby restricting the movement of machinery and raw-materials.  Due to which the progress in construction was hampered to a great extent, inspite of the super structure of the tower along with the block masonry work including two coats of external plastering, over head tanks, Helipad, Periphery compound wall, underground pipeline for STP and flooring and other incidental interior works was completed well within time.

5.      The Opposite Party further contended that it is also in the month of March, April and May 2017, there was a Cauvery Agitation also affected the progress of the construction as because the majority of the labourers were from Tamil Nadu and they went to their native place, hence, did not turn back to take up the construction work.  These are the unavoidable circumstances where this Opposite Party was not able to construct well within time.  Even thy have planned to implant OTS lift to the apartment, but in order to provide best equipment has finalized “MITSUBISHI” lifts, which is far superior than other lifts and much more expensive when compared to the proposed lift.  The entire project is equipped with gas supplied with pipeline network directly from the supplier which will reduce the gas consumption cost by almost 50%.  They have also provided DTH services to the entire apartment along with wifi zones and they have completed almost all works as agreed.  Now the apartment is ready for registration and the complainant can register at any point of time and submits there is no deficiency in service and prayed to dismiss the complaint.

6.      The complainant and the Opposite Party have filed their affidavit evidence and also marked their documents.  Heard both parties.

7.      On perusal, the following points will arise for our consideration;

                    (i)       Whether the complaint deserves to be allowed?

                     (ii)      What order?

  8.      The findings to the above points are;

                   (i)       Affirmative

                   (ii)      As per final order

REASONS

9.      On going through the pleadings, affidavit evidence of both parties, there is no any dispute that the complainant had paid Rs.89,76,162/- and entered into an Agreement to Sell and Construction Agreement on 16.08.2016 whereas in the agreement, the Opposite Party has agreed to handover the constructed apartment to the complainant by March 2017, but, so far admittedly they have not handed over the possession of the apartment to the complainant by registering the sale deed in his favour by providing required documents such as Occupancy Certificate etc.  During the course of arguments, the learned counsel for Opposite Party suggested that they are ready to register the Sale Deed in favour of the complainant subject to payment of balance amount before the Sub Registrar Office.  The complainant also agreed to pay the balance amount towards the registration and insisted for payment of compensation towards delay in handing over the possession and registration of the apartment.  Ofcourse there is a clear violation on the part of the Opposite Party in not keeping up the promise made by them at the time of agreement.  We observed in Clause-11 of the agreement, the Opposite Parties have agreed to pay Rs.5/- per sq.ft. for each month as delay compensation.  Hence, the terms and conditions are binding on both parties.  Therefore, it is proper to direct the Opposite Party to pay Rs.5/- per sq.ft. for each month from the date of default, till realization.  Accordingly, they are liable to pay the amount.  We found there is deficiency in service on the part of the Opposite Party in not paying the said delay compensation inspite of repeated requests made by the complainant.  As such the Opposite Party is liable to pay compensation also.  Hence, the following;

ORDER

The complaint is allowed with costs of Rs.10,000/-. 

The Opposite Party is directed to register the flat in favour of the complainant by receiving balance sale consideration amount.

The Opposite Party is directed to pay Rs.5/- per sq.ft. per month from March 2017, till the registration of the Sale Deed in favour of the complainant.

The Opposite Party is further directed to pay a sum of Rs.5,00,000/- towards compensation for the delayed possession and registration of the flat.

The Opposite Party is granted 30 days time from this date to comply the Order.

 Forward free copies to both the parties. 

                    Sd/-                                                           Sd/-      

MEMBER                                           JUDICIAL MEMBER

KCS*