Karnataka

Bangalore 4th Additional

CC/800/2016

Mr. Sandesh Rao - Complainant(s)

Versus

Brigade Enterprises Limited - Opp.Party(s)

02 Aug 2019

ORDER

Complaint filed on: 04.06.2016

                                                      Disposed on: 02.08.2019

 

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

    DATED THIS THE 02^nd AUGUST OF 2019

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

Complaint No.800/2016

 

 

 

COMPLAINANTs	1) Mr.Sandesh Rao, Aged about 42 years, S/o K.Ramanath Rao.   2) Mrs.Reena K.G, Aged about 37 years, W/o Sandesh Rao, Residing at No.1116, “Gurukrupa”, 11th Main, 5th Cross, Prakash Nagar, Bangalore-560021.   Advocate – Mrs.Pushpalatha N.S       V/s
OPPOSITE PARTy	Brigade Enterprises Limited., A Company incorporated under the companies Act of 1956, Having its Registered office and Corporate Office at:29th & 30th Floors, World Trade Center, Brigade Gateway Campus, 26/1, Dr.Rajkumar Road, Malleshwaram – 560055.   Represented by its Authorized Signatories   1) Mr.Udaya Kumar A, 2) Ms.Parijatha A.   Advocate – Sri.V.Srinivasa Raghavan.

                                       

 

O R D E R

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

            This complaint is filed by the Complainant against the Opposite party (herein after called as OP), under section 12 of the Consumer Protection Act, 1986. The Complainant prays to direct the OP to execute the sale deed in favour of the complainants and handover the flat after due and proper completion, to pay compensation @ 18% same as they are charging on the delayed payments, on the total amount paid till date i.e., Rs.35,69,000/- from 31.12.2013 to till filing amounting to Rs.12,84,840/- computed till 31.12.2015 and also directed to pay till handing over possession of the flat, to award compensation of Rs.5,00,000/- towards damages for causing pain, suffering and irreparable financial loss and mental agony, to pay costs of the proceedings and such other reliefs.

 

2. The brief facts of the complaint is as under:

 

Complainant submitted that, OP is the seller and absolute owner of several lands measuring 62 acres 12.25 guntas is Sy. Nos.114, 119/1, 119/2, 120, 121/1, 121/2, 121/3, 121/4, 122, 123, 124/2, 124/3, 124/4, 124/5, 124/6, 124/7, 124/8, 124/9, 125/1, 125/2, 125/3, 125/4, 126, 126/1, 127/1, 127/4, 127/5, 137, 138, 139, 140, 141, 142, 144, 145, 146, 147, 148/2, 148/2 and 148/3 situated in Kaggalipura village, Uttarahalli Hobli, Bangalore South Taluk.  That OP is developing integrated township in the above said property have obtained the development plan sanction from the Karnataka Development Authority on 02.09.2011 vide its order bearing No.KPA/LAQ/15/2009-10-10/222 & KPA/LAQ/16/2010-11/223 which is comprising of residential land commercial development the entire development is known as “Brigade Meadows”.  That the complainants had approached the OP to purchase Flat No.C-2124 in type C Block-21 on Second Floor of “Brigade Meadows”., measuring 1150 square feet super built up area, one covered car parking and along with undivided share of 452 square feet in the land forming portion of land in square No.119/1, 119/2, 120, 121/1, 121/2 & 121/3 measuring 173407.50 square feet which is inclusive of the proportionate share in the common area such as passage, lobbies, staircase etc., with common amenities and facilities thereon in the project along with right to use one car parking in the stilt floor.

 

That the complainants have entered into agreement of sale dated 08.08.2012 for the purchase of undivided share in the land with the OP and the Construction Agreement dated 08.08.2012 with the terms that the construction will be completed and shall be handed over on 31.12.2013 with 6 months grace period without fail.  That the complainants for the purchase of flat availed loan from state Bank of India and the original documents pertaining to aforesaid flat are deposited towards the collateral.  Complainants further submitted that the complainants are forced to pay the booking amount with giving the opportunity to do their part of due diligence and insisted on booking amount without sharing the title documents and agreement drafts as initial payments of Rs.6,41,700/- on 23.11.2011.

 

Complainants further submitted that soon after they were insisted to sign the Sale agreement and construction agreement (the “Agreements”) in order to formalize the contract for which OP shared the format of agreements for review an signing the complainants upon reading through the agreement was surprised and shock to see many clauses which were not only contrary to the existing law and also it was one sided favouring only OP and same were brought to the notice of OP but OP did not agree to make any changes to the agreement as they maintained that the agreement was standard for all the customers and also made clear that orally that they will not refund any money paid in advance and stated they have already purchased the stamp papers for the same.  The complainants did not want to lose the money they were forced to sign the agreements to avoid further hassles.  That as per the cost sheet and the agreements the complainants agreed to pay sum of Rs.41,39,600-00 as the cost of the flat in this regard the complainants availed the loan from SBI sum of Rs.30,00,000/- with rate of interest of 10.15% and till date the Bank has released sum of Rs.28,06,000/- for which the complainant started paying monthly EMI of rs.31,183/-.  Till date the complainants have paid Rs.35,69,000/-.  Further submitted that as per the construction agreement the OP under clause 8.1 the completion and delivery should be on or before 31.12.2013.  The complainant has already paid 90% of the total consideration.  The OP has delayed for more than three years and this clearly establish that there is deficiency in service and unfair trade practice.

 

That the complainants paying EMI of Rs.31,183/- and the rent of Rs.12,000/- incurred an expenses of Rs.43,183/- monthly which totally coming up to Rs.5,18,196/- per year.  That despite of several request the OP did not handover the premises.  The complainants received the last demand letter on 15.09.2015 for the further payment which does not speak about any delay compensation and which also states that they are still on process of obtaining E-Katha only upon that sale deed will be executed and handing over the flat will be happen.  The delay compensation as per their agreement is only Rs.2/- per sft which is unfair trade practice if the complainants delay in payment they are charging @ 18% p.a on the delayed payments.  The statement furnished before this Forum clearly shows the same.  The delay payment even what they are charging the complainants are delay from the OP to furnish the documents from their side to avail the loan from that Bank.  That on 27.04.2015 the complainants issued legal notice to OP through RPAD but same is duly served on OP.  Complainant felt deficiency in service on the part of OP.  Hence the complainant filed this complaint.

 

3. After service of the notice from the Office, the OP appeared before this forum and filed objections.  OP submitted that the complaint filed by the complainant is frivolous, vexatious and not maintainable either in law or on facts, as such liable to de dismissed in limine with exemplary costs.  The OP has never acted in any manner in breach of fiduciary duties or contrary to the law.  The above said complaint has been filed solely with the malafide intention of unjustly enriching the complainants at the cost of the OP inter-alia.  The said complaint has not present the true set of facts.  The complainants are guilty of suppression of material facts on this ground alone the above complaint is liable to be dismissed.

 

          OP further submitted that the complainant had entered into an agreement to sale dated 08.08.2012 as well as the Construction Agreement dated 08.08.2012.  If any dispute arise between the parties to be resolved through arbitration and in accordance with the Indian Arbitration and Conciliation Act 1996.  On perusal of the clause 19.2 of the agreement to sell and the clause 23.2 of the Construction Agreement in disputably evidence the consensus ad idem to have the disputes pertaining to the said agreements resolved solely by way of arbitration.  Therefore alleged grievances sought to be raised vide the above complaint constitute disputes that would necessarily be subject to arbitral proceedings, as specifically agreed by the parties.  The complainant has wilfully suppressed the existence of the arbitration clause, in terms of the clause 19.2 of the agreement to sell and the clause 23.2 of the construction agreement.  OP further submitted that as per clause 19.2 of the Agreement to Sell and the clause 23.2 of the Construction Agreement the reliefs sought by the complainants vide the above complaint are all of such vexed and contentious nature as are necessarily liable to be adjudicated only following a full-fledged trial.  That the allegations of the complainant is highly untenable both in facts and law.  OP is a highly reputed company.  The complainant has fashioned facts only to suit his contentions.  The allegations of the complainants are to be proved by leading cogent evidence and any conclusions cannot be drawn based on allegations.  A detailed trial is required to ascertain the tenability and/or veracity of the allegations and hence, it cannot be considered by this Forum.  Hence the complainant to go to the Civil Court and prove this case on merit after leading cogent evidence.

 

          OP further submitted that the complainant has sought for nothing but the specific performance of the Agreement to Sell and Construction Agreement.  As such the relief is well beyond the jurisdiction of this Forum.  The same can only be granted by a Civil Court after appreciation of evidence, hence the complaint is not maintainable on this ground as well.  OP further submitted that the very nature of scope of various claims of the complainant, on a plain reading itself, reveal that they fall outside the ambit of the provisions of the Consumer Protection Act 1986, as the above complaint cannot, by any stretch of imagination, be categorized as falling under any of the heads of ‘defect in goods’ and / or ‘deficiency in services’ and / or otherwise under the Consumer Protection Act 1986.  OP submitted that such a proceeding is beyond the scope of the jurisdiction of this Forum as envisaged under the Consumer Protection Act 1986.  Therefore, the complaint is liable to be dismissed.

 

          OP further submitted that the complainant seeking relief action can only be instituted before the Hon’ble State Commission at Bangalore not before this Forum.  This Forum only has jurisdiction to entertain complaint where the value of the goods or services and the compensation claimed does not exceeds Rs.20,00,000/-, it is the case of the complainants themselves that Rs.41,39,600/- the cost of the Flat in question.  Furthermore, without prejudice even the compensation sought to be claimed vide the prayer clause 3 & 4 of the complaint per se total an excess of rs.20,00,000/- as on the date of filing of the complaint.  Therefore, it is submitted that this Forum lacks the jurisdiction to adjudicate upon the said complaint.  Hence same is not maintainable and liable to be dismissed.

 

          OP further submitted that the complainants earlier filed complaint in CC No.542/2015 before the Hon’ble 1^st Additional District Consumer Forum unjustly sought for waiver of interest otherwise payable at the instance of the complainants for unjustifiable and unreasonable delays in making payments under the agreement to sell with the Construction Agreement.  OP further submitted that the OP filed version, it appears that the complainant realized their folly and withdrew the CC No.542/2015.  Despite this hence complainants once again indulged in abuse of process and filed the complaint in a malafide bid to mislead this Forum into inter-alia directing the OP to execute and register a sale deed in respect of the flat in question and handover the same to them without the complainants having to first pay the balance dues towards the consideration payable for the said flat as per the terms and conditions of the Construction Agreement.

 

          The complainants have failed and neglected to adhere to the payment schedule agreed upon  vide the schedule ‘F’ of the Agreement to Sell read with the Schedule ‘E’ of the Construction Agreement.  These continuing defaults in timely payments are not denied by the complainants.  More so, it is submitted, without prejudice, that it is alleged case of the complainants themselves that they have paid 90% of the amounts payable for the Flat in question under the Agreement to Sell read with Construction Agreement.  A statement of account, detailing the payments made by complainants along with the pending dues from them to the OP, as on 22.08.2016.  It is therefore, further submitted that pending full and timely payment of the balance sums of monies due under the Agreement to Sell read with the Construction Agreement, neither is the OP obligated to deliver nor are the complainants entitled to claim or take possession of the flat in question.

 

          OP further submitted that, it is pertinent to note that the complainant has alleged that the cause of action has arisen on 15.09.2015 i.e., the day on which the OP has issued the demand letter.  It must be highlighted that in the said letter dated 15.09.2015 the OP has categorically called upon the complainant to clear all outstanding dues towards instalment, additional expenses and towards registration fee and also informed the complainant that it would take 15 working days to complete the process of registration.  It is further submitted that even though the OP called upon the complainant to pay the outstanding dues and to come forward to complete the process of registration as on 15.09.2015 itself, the complainant has deliberately chosen to refrain from making the payments that are due and with a mala-fide intent to harass the OP by filing such frivolous complaint.  That the complainants have filed the complainant only with mala-fide intent to wriggle out of their obligations under the aforementioned Agreement to Sell and Construction Agreement.  That the action of the complainants in filing the complaint without complying with their obligations under the aforementioned agreements amounts to gross abuse of process of law.  Further it is evenly pertinent to highlight that the complainants have admittedly failed to make payment towards the instalments in accordance with the payment schedule as mentioned under the Agreement to Sell read with the Construction Agreement.  OP further submitted that it had infact levied the interest for delayed payments upto 24.06.2013 which totally amounted to Rs.1,68,771/-.  Further it is submitted that pursuant to the OP informing the complainant regarding the interest amounts that was due and payable towards delayed payments, the complainants sought for reducing the said amount of interest that was payable by them.  The complainants had also approached the OP to discuss this issue and the OP in the meeting held on 02.09.2014 had obliged the request made by the complainant and had reduced the said amount to Rs.1,00,000/-.

          OP further submitted that even after the OP obliged to the request of the complainants and reduced the amounts payable towards interest on delayed payments from Rs.1,68,771/- to Rs.1,00,000/-, the complainants with mala-fide intent to harass the OP so as to avoid the said payment of Rs.1,00,000/- had earlier approached this Forum and filed a complaint bearing CC No.542/2015 seeking interference of this Forum to waive the said sum of Rs.1,00,000/- which was levied by OP towards interest on delayed payments.  However to further reiterate after the OP filed their version, the complainants realizing their folly withdrew the CC No.542/2015.  Hence OP prayed for dismissal of the complaint with exemplary costs.

 

4. In the course of enquiry into the complaint, the Complainant and the OP have filed their affidavit reproducing what they have stated in their respective complaint and objection.  Both parties produced documents which were marked.  We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.  

 

5. Based on the above materials, the following points arise for our consideration;  

 

 

1. Whether this Forum has got pecuniary jurisdiction to try and dispose this complaint?

 

2. Whether the Complainants proved the deficiency in service on the part of the OP, if so, whether they are entitled for the relief sought for?

 

3.  What order?

 

6. Our findings on the above points are as under:

Point No.1:  In the negative 

Point No.2:  Does not survive for consideration  

Point No.3:  As per the final order for the following

 

REASONS

 

7. Point No.1: The preliminary contention raised by OP is that, the said complaint lack of jurisdiction to entertain this complaint.  Since the complaint exceeds Rs.20,00,000/-.  The cost of the Flat in question is Rs.41,39,600/- i.e., above Rs.20,00,000/- and the complainant sought for compensation exceeds Rs.20,00,000/- as on the date of filing of the complaint.  Therefore, the complaint is not maintainable before this Forum and liable to be dismissed.

 

8. On perusal of the prayer column the complainant prayed to execute the sale deed in favour of the complainants and handover the Flat after due and proper completion.  Admittedly the complainant had entered into an agreement to sell and construction agreement for Rs.41,39,600/-.  Further the complainant sought for interest @ 18% towards compensation for the amount of Rs.35,69,000/- from 31.12.2013 to till handing over possession of the Flat.  Further the complainant prayed Rs.5,00,000/- as compensation towards damages for causing pain, suffering, financial loss and mental agony.  Therefore the claim of the complainant altogether more than Rs.20,00,000/-.  As per section.11(1) of C.P Act this Forum does not have a jurisdiction to entertain this complaint.  Section.11(1) of C.P Act reads as here under:

 

11. Jurisdiction of the District Forum. – (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs).

 

9. In this context, we placed reliance on the decision of Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.3496/2017 in the case of Gurumukh Singh V/s Greater Mohali Area Development Authority and Ors., wherein it is held that:

 

“the total value of the goods and services provided, is to be taken into consideration for determining the pecuniary jurisdiction of a consumer forum and not the partial amount deposited by an allottee” as contended under Sec.11(1) of CP Act 1986”.

 

          In view of the order of the Hon’ble National Commission, the District Forums have to consider the value of the disputed properties before determining the rights of the parties therein and accordingly, the District Consumer Forum gets no right to proceed with this complaint as the pecuniary jurisdiction of the complaint exceeds Rs.20,00,000/-.  The only option left open to this Forum is to order to return the complaint to the Complainant to file it before the competent Forum/Commission by taking the assistance of the decision reported in II (1995) CPJ 1 (SC) in the case of Laxmi Engineering works v. PSG Industrial Institute, on the question of limitation. Accordingly, we answered the point no.1 in the negative.

 

10. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly, it is answered.

 

11. Point no.3: In the result, we passed the following

 

ORDER

 

          Complaint filed by the complainants is dismissed any how the complainants are at liberty to file it before the competent Forum/Commission having jurisdiction to try the same.

 

Supply free copy of this order to both the parties.

 

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 02^nd day of August 2019)

 

 

 

(ROOPA.N.R)       MEMBER

(PRATHIBHA.R.K)    PRESIDENT

 

 

1. Witness examined on behalf of the complainants by way of affidavit:

 

Sri.Sandesh Rao. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Agreement of sale dated 08.08.2012.
Ex-A2	Construction Agreement dated 08.08.2012.
Ex-A3	Tripartite Agreement dated 16.04.2013.
Ex-A4	Statement of accounts
Ex-A5	Legal notice dated 27.04.2016.
Ex-A6	Original postal Acknowledgement and receipt.

 

Witness examined on behalf of the OP by way of affidavit:

 

Sri.Udaya Kumar, who being the authorized signatory of OP.

 

 Copies of Documents produced on behalf of OP:

 

 

Ex-B1	Copy of agreement of sale dated 08.08.2012 entered into between the complainants and OP.
Ex-B2	Copy of construction agreement dated 08.08.2012 entered into between the complainants and the OP.
Ex-B3	Copy of consumer case bearing No.542/2015 (minus the annexures thereto) filed by the complainants.
Ex-B4	Copy of version filed by OP in CC No.542/2015.
Ex-B5	Copy of statement of account, detailing the payments made by complainants along with the pending dues from them to OP dated 22.08.2016.
Ex-B6	Copy of statement of calculation of interest dated 10.03.2014.
Ex-B7	Copy of Board Resolution for Mr.Uday Kumar, authorizing signing and legal documents.

 

 

 

(ROOPA.N.R)       MEMBER

(PRATHIBHA.R.K)    PRESIDENT

 

 

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