Date of Filing:18.01.2008 Date of Order:06.10.2008 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 6TH DAY OF OCTOBER 2008 PRESENT Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 184 OF 2008 Sri. Aditya Mishra, S/o D.N. Mishra, R/at No. S-7, Jan Jeevan Classic, 8th Main, Maruthi Nagar, Mallesh Palya,Bangalore 560 075. COMPLAINT NO: 185 OF 2008 1. Manoj Kumar Sharma, S/o Sri. T.P. Singh, R/at No. 406, Sun Valley, Silpa Park, Kondapur, Hi tech City, Hyderabad-500032. 2. Smt. Jyothi Sharma, D/o Sri. A.B. Saran, R/at No. 406, Sun Valley, Silpa Park, Kondapur, Hi tech City, Hyderabad-500032. COMPLAINT NO: 186 OF 2008 1. Prasun Mishra, S/o S.K. Mishra, R/at No. B1/522, Ghata Prabha, National Games Village, Koramangala, Bangalore-560047. 2. Smt. Anumecha Mishra, W/o Prasun Mishra, R/at No. B1/522, Ghata Prabha, National Games Village, Koramangala, Bangalore-560047. Complainants v/s 1. The Managing Director, Sri. S.N. Ravi Kumar, ASN Holdings, Atria Institute of Technology Campus, Bangalore-560 024. 2. ASN Holdings, Atria Institute of Technology Campus, Anand Nagar, Bangalore-560 024. Opposite Parties ORDER By the President Sri. S.S. Nagarale These three complaints are clubbed together for passing common order since the opposite parties are one and the same and the facts and law points involved in these three complaints are also one and the same. The learned counsel for the parties also submitted that these three complaints may be clubbed and common order be passed. The respective complainants have filed complaint U/Sec.12 of the Consumer Protection Act, 1986 claiming Rs.5,31,000/- as compensation for deficiency of service, mental harassment etc., with interest. The facts of the case are that the complainants entered into sale agreement of flats on 09/05/2005. As per the agreement opposite parties were liable to pay pre-EMI against Bank loan taken by the complainants till handing over possession of flats to the complainants. The opposite parties assured that flats will be ready for occupation before 31st December-2005. The opposite parties never paid pre-EMI. The opposite parties have executed sale deed on 11/01/2007 in favour of Sri. Adithya Mishra, the complainant in complaint No.184/2008 after taking entire sale consideration amount from him. Sale deed in favour of Manoj Kumar Sharma was executed on 02/03/2006 and sale deed in favour of complainants in complaint No. 186/2008 is also executed on 02/03/2006. It is the case of the complainants that even after execution of sale deed the opposite parties did not take any action to hand over physical possession of the flats to the complainants. It is also the case of the complainants that as per the agreement the opposite parties are liable to allot car parking space to the complainants. Complainants have issued legal notice on 22/10/2007 calling upon the opposite parties to complete the construction and hand over actual possession of the flats along with car parking area and to compensate the complainants. Opposite party No.2 received legal notice. After receipt of the legal notice opposite parties handed over the key of the flats to the complainants, but did not take any action to allot car parking area as mentioned in the agreement and sale deed and did not issue Occupancy Certificate. Complainant is paying huge amount as rent for no fault of him. Opposite parties have harassed mentally. Therefore, the complainants have prayed for grant of Rs.5,31,000/- as compensation for deficiency of service, mental harassment and towards rent paid by them. 2. Notice was issued to opposite parties. Opposite parties put in their appearance through Advocate and submitted defence version as under:- The complaints filed by the complainants are not maintainable either in law or on facts and the same requires to be dismissed in limine. The above complaints require to be dismissed in limine for non-joinder of necessary parties and mis-joinder of parties. The above complaints are filed only to harass the opposite parties and to avoid the payment of balance consideration payable by the complainants to the opposite parties. The averments in paragraphs 2 and 3 of the complaints which are not contrary to the agreement of sale entered into between the complainants and the opposite parties are admitted as true. The averments made in paragraph 4 are hereby denied as false. Even at the time of entering into the agreement of sale, the complainants were aware of the fact that the flat purchased by him was part of a joint development agreement between the owners and one Sri. I. Mahabaleshwarappa, the developer. Handing over of possession of the property was subjected to handing over of possession by the developer. In such circumstances, the averments made in paragraph 4 and 5 of the complaint requires to be read as if the time was not the essence of the contract as the same was dependent on the act of the third party called developer who is not a party to the proceedings. The averments made in paragraphs 4 and 5 itself goes on to show the ill motive of the complainant to harass the opposite parties. In fact, even at the time of getting the sale deed executed, the complainant has not raised any objections as to the completion of construction and as to delay therein. Further, the opposite parties have already handed over the schedule flats to the complainant as agreed and he is residing therein. Such being the case, there is no cause of action for the above complaint. The averments made ion paragraphs 6 to 8 are denied in toto and the complainants are put to strict proof of the same. The averments made in paragraphs 9-11 are all created for the purpose of the case. There is no deficiency in service on the part of the opposite parties and the complaints are false, frivolous, vexatious and baseless. There is no cause of action for the above complaints. Hence, the opposite parties have prayed to dismiss the complaints. 3. Affidavit evidence of both the parties filed. Arguments on both the sides are heard. 4. The point for consideration is: Whether there was any deficiency in service on the part of the opposite parties? REASONS 5. It is an admitted case of the parties that the respective complainants had entered into an agreement of sale with the opposite party on 09/05/2005 for purchase of flats. The cost of the flat was Rs.21,36,000/- as per the agreement. The opposite party had executed sale deed in favour of complainant Adithya Mishra on 11/01/2007. The copy of sale deed and agreement of sale have also been produced. The opposite party had acknowledged the receipt of the entire sale consideration amount in the registered sale deed. Therefore, there is no dispute whatsoever between the parties in respect of the payment of sale consideration amount. In the sale deed executed in favour of Adithya Mishra at clause-31 of the sale deed, it has been mentioned that the vendor put the purchaser in possession of the Schedule-B property by the end of January-2007 or as soon as the developers completes the construction and hands over the apartment of the vendor in furtherance of joint development agreement dated 07/08/2003 and supplement agreement dated 12/05/2004. In Schedule-B apartment bearing No.D 702 has been mentioned. this property includes car parking in the basement. The agreements of sale in favour of Manojkumar Sharma and Prasun Mishra have been executed on 16/12/2004 by the opposite party and registered sale deed had been executed in favour of both the above complainants on 24/04/2006. The copy of sale deed and agreement of sale have been produced. As per the Clause-31of the sale deed it has been stated that the vendors put the purchaser in possession of Schedule-B property by the end of August-2006 or as soon as the developers completes the construction and hands over the apartment of the vendors in furtherance of joint development agreement and supplementary agreement. It is the case of the complainant that, the opposite parties did not hand over the possession of the flat even after the execution of sale deed. The respective complainants had caused a legal notice on 22nd October-2007 calling upon the opposite parties to complete the remaining work as specified in the agreement and hand over the actual possession along with car parking area. The complainants have stated that after receipt of the legal notice the opposite parties handed over the key of the respective flats to the complainants, but did not take any action to allot the car parking area as mentioned in the agreement and in the sale deed. As per the sale agreement the stipulated time for handing over possession was on or before 31st December-2005. The learned advocate for the complainants argued that since there was delay in handing over possession of flats the complainants have to stay in a rented premises by paying rent. Therefore, the advocate for the complainant argued that from January-2006 till handing over possession the opposite parties may be directed to pay the rent amount. The complainant in complaint No.184/2008 has taken sale deed on 11/01/2007, the other two complainants in complaint Nos. 185/2008 and 186/2008 have taken sale deed on 24/04/2006. In the sale deed nothing has been mentioned about the payment of rent by the opposite parties to the complainant for delay in delivery of possession. The agreement of sale naturally emerges with the sale deed. Therefore, the condition mentioned in the agreement of sale that possession shall be handed over on or before 31st December-2005 cannot be enforced in law. The complainants cannot claim compensation by way of rent from January-2006. At the most the complainants are entitled to be compensated towards payment of rent from the date stipulated for handing over possession in the sale deed. In case of Adithya Mishra under Clause-31 of the sale deed possession should have been handed over by the end of January-2007. But the opposite party did not hand over the actual possession of the flat by the end of January-2007. The possession was handed over in the month of October-2007 after legal notice. Therefore, from February-2007 to September-2007 for 8 months the complainant Adithya Mishra can be compensated towards payment on rent on account of delay on the part of the opposite parties to deliver the actual possession of the flat. In respect of other two complainants sale deed was taken on 24/04/2006 and under Clause-31 of the sale deed the opposite parties had agreed to put the purchasers in possession of the flat by the end of August-2006, but the possession was not handed over as per the stipulation mentioned in the sale deed. Therefore, from September-2006 to September-2007 for 13 months there was a delay in handing over possession of the flats. Therefore, the complainants in complaint Nos.185/2008 and 186/2008 can be compensated by way of rent for the period of 13 months since there was delay in handing over possession of the flats. The opposite parties admittedly did not hand over the possession of the flats by August-2006 as stipulated in the sale deed. The learned advocate for the opposite parties argued that under Clause-31 of the sale deed the obligation of handing over possession was dependent on the developers completing the construction and handing over the apartment. Therefore, the cut off date mentioned in the sale deeds are not binding on the opposite parties. I am of the opinion that this argument cannot be accepted as valid and legal argument because the condition that opposite parties are liable to hand over possession on the completion of building by the developers is a very vague and uncertain condition. Even it is not the case of the opposite parties that the developers completed and handed over the possession of the apartment after August-2006. Therefore, there was delay in handing over possession of the flats to the complainants. The opposite parties in the defence version never discussed as to on what date the developers completed the construction and handed over the apartments to them. The opposite parties have not come forward and no date had been mentioned by the opposite parties as to on what date he took possession of the apartment from the developers. So, under this circumstance the first part of the Clause-31 of the sale deed mentioning the cut off date for handing over possession of the flats shall have to be accepted and enforced. It is also admitted case of the parties that till receipt of the legal notice from the respective complainants the opposite parties did not handover possession of the respective flats to the complainants. Therefore, the date of handing over possession of the flats shall have to be taken in the month of October-2007. It is unfortunate that the opposite party did not handover possession of the flats at the time of sale deed the opposite party even not handed over the possession of the flats on the respective dates mentioned in the sale deeds. Therefore, naturally the complainants shall have to be compensated for the delay in handing over possession of the flats. The delay in handing over possession of the flats and not adhering to the conditions of sale deed is definitely amounts a deficiency in service on the part of the opposite parties. The complainant Adithya Mishra has produced rent agreement to show that he has paid Rs.6,500/- p.m to the rented premises taken by him. Therefore, Adithya Mishra is entitled to be compensated towards payment of rent from February-2007 to September-2007 i.e., for 8 months. 6,500 X 8 comes to Rs.52,000/-. The complainant in complaint No.185/2008 has produced lease deed. As per this he has paid an amount of Rs. 11,000/- and there was 13 months delay in handing over possession of flats. Therefore, 11,000 X 13 comes to Rs. 1,43,000/- and this amount requires to be compensated to Manojkumar Sharma. In complaint No.186/2008 the complainant has produced rental agreement. As per this he has paid Rs.13,000/- rent p.m for the premises taken on rent. Therefore, 13,000 X 13 comes to Rs.1,69,000/-. This amount is liable to be compensated to him towards payment of rent for the delay caused on the part of the opposite parties in handing over possession of the flats. 6. The complainants have stated that the opposite parties are liable to pay pre-EMI against Bank loan taken by the complainants till complete handing over possession of the flats. Therefore, the learned advocate for the complainant argued that the opposite parties may be directed to pay or reimburse pre-EMI paid to the Bank. In the legal notice caused to the opposite parties the complainants have not claimed payment of pre-EMI from the opposite parties. The question of pre-EMI cannot be decided in this summary proceeding. There is no proper proof or evidence or pleading as to how much the pre-EMI is liable to be paid by the opposite parties. Payment of pre-EMI requires a detail enquiry and trial. The complainants have to establish this fact by producing proper documents and evidence. Therefore, in this proceeding it is not possible or desirable to discuss and come to conclusion that the liability of payment of pre-EMI. Non payment of pre-EMI by opposite parties as per the agreement cannot be taken or treated as a deficiency in service on the part of the opposite parties. The payment of pre-EMI and its recovery is a question of civil nature. The complainants shall have to file civil suit and establish their case and get the relief from the hands of the Civil Court. Therefore, in this complaint it is unwarranted and not desirable to discuss the merits and demerits of payment of pre-EMI. 7. The learned advocate for the opposite parties vehemently argued that the complaint is bad for non-joinder of necessary party. The learned advocate submitted that I. Mahabaleshwarappa who is the builder/developer is a necessary party to the present proceeding because the present opposite parties had entered into joint agreement with I. Mahabaleshwarappa. Therefore, without making him as a party to the present proceedings the complaints are not maintainable. I am of the opinion that this argument cannot be accepted because admittedly the agreement of sale had been executed by the present opposite parties only in favour of the complainants and the registered sale deed also had been executed by the present opposite parties. I. Mahabaleshwarappa is not at all a party to the agreement of sale and also to the sale deed. Apart from that the flats sold to the complainants in this case had been allotted to the share of present opposite parties as per the joint developer agreement and supplementary agreement. So, under these circumstances, there is no any privity of contract between the complainants and Sri. I. Mahabaleshwarappa the developer. Therefore, the argument advanced by the learned advocate for the opposite party on this count cannot be accepted. 8. The learned counsel for the complainants argued that as per the sale agreement the complainants have paid Rs.1,40,000/- towards car parking area and therefore, the opposite parties are liable to provide car parking area. The sale deed also includes covered car parking space to be provided to the purchasers in the basement floor. Therefore, it is the duty, obligation and commitment of the opposite parties to provide covered car parking space to the respective complainants as per the sale deed. Therefore, the opposite parties shall have to be directed to provide covered car parking area to the respective complainants as agreed in the sale deed. Taking into consideration of all the documents, pleadings and arguments advanced by both the learned advocates for the parties, I proceed to pass the following: ORDER 9. All the three complaints are partly allowed. The opposite parties are directed to pay Rs.52,000/- to Adithya Mishra, the complainant in Complaint No. 184/2008. 10. The opposite parties are directed to pay Rs. 1,43,000/- to Manojkumar Sharma, the complainant in Complaint No.185/2008 and the opposite parties are directed to pay Rs. 1,69,000/- to Prasun Mishra the complainant in complaint No.186/2008 as compensation for delay in delivery of actual possession of the respective flats. The opposite parties are directed to pay the respective amount within 30 days from the date of this order. 11. In the event of non-compliance of the order within 30 days the respective amount carries interest at 12% p.a from the date of this order till payment/realisation. 12. The opposite parties are directed to provide covered car parking area to the respective complainants within 30 days from the date of this order. 13. The respective complainants are entitled to Rs.3,000/- each towards costs of the present proceedings from the opposite parties. 14. The opposite parties are directed to send the amount as ordered above to the respective complainants directly by way of D.D/Cheque with intimation to this Forum. 15. Keep the copy of the order in connected complaints. 16. Send the copy of this Order to the parties free of costs as statutory requirements. 17. Pronounced in the Open Forum on this 6TH DAY OF OCTOBER-2008. Order accordingly, PRESIDENT We concur the above findings. MEMBER MEMBER Rhr
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