Kerala

StateCommission

A/15/181

DLF SOUTHERN TOWNS PRIVATE LTD - Complainant(s)

Versus

DR GINIL KUMAR - Opp.Party(s)

M/S MENON AND PAI

26 Oct 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL NO.181/2015

JUDGMENT DATED 26/10/2016

  (Appeal filed against the order in C.C No.529/2013 dt. 28/11/2014 on the file of CDRF, Ernakulam)

 

PRESENT:

SMT. A. RADHA                                      :         MEMBER

SHRI. K. CHANDRADAS NADAR           :        JUDICIAL MEMBER

APPELLANTS:

1.  M/s. DLF Southern Towns Private Limited,

Registered Office at 1-E, Khandewalan Extension,

Naaz Cinema Complex, New Delhi-110 055.

 

2.  M/s. DLF Southern Towns Private Limited,

Zonal Office at PDR Bhavan, Palliyil Lane,

Foreshore Road, Kochi-682 016.

(By Adv:   M/s. Menon & Pai)                    

                        Vs

RESPONDENT:

            Dr. Ginil Kumar, S/o. K.P. Padmanabhan Nair,

Professor, Department of Urology,

Amrita Institute of Medical Sciences, Kochi-26,

 

Residing at ‘Priyadarshini’, Nirmalagiri P.O.,

Kannur District-670 701.

 

(By Adv:  V.A Ajayakumar )            

                                             JUDGMENT

 

SMT. A. RADHA  :  MEMBER

 

          This appeal is preferred by the opposite parties against the order in C.C.No.525/13 on the file of CDRF, Ernakulam wherein the Forum Below allowed the complaint in part.

          2.  The brief facts of the case are that on 30/12/2008 the complainant entered into an agreement with the opposite parties to purchase a residential apartment No.K-083 having 1236 sq.ft of the super built area on the 8^th floor of project of the opposite parties named DLF New Town Heights DLF, Ernakulam with a covered car parking for a total consideration of Rs.32,41,120/-.  As per the agreement the opposite parties agreed to deliver the completed apartment within a period of 36 months from the date of agreement.  The complainant paid Rs.4,00,000/- on 30/9/2008 while booking the apartment and thereafter paid an amount of Rs.2,48,224/-.  The apartment buyers agreement was signed only on 30/12/2008.  The complainant applied for a Home Loan from SBI as per the instruction of the opposite parties.  Till June 2008 the Bank had not sanctioned loan due to some legal issues to be cleared in the project of the opposite parties.  Thereafter the complainant was constrained to avail housing loan from LIC Housing Finance and the loan was sanctioned in the month of June 2008.  Due to the delay in sanctioning loan the complainant had to make the payment belatedly.  Subsequently the opposite parties demanded 15% interest for the first 90 days and thereafter @ 18% per annum for the belated amount as per the agreement.  Though it was not a wilful default on the part of the complainant the opposite parties demanded interest which was paid by the complainant on 6/7/2009.  As per the agreement entered into between the complainant and opposite parties that the project would be completed within 36 months from the date of original agreement ie. by the end of December, 2011.  It is also mentioned in the agreement that if the completion of the project is delayed beyond December 2011 the opposite parties would pay Rs.10 per sq.ft for the built up area per month as compensation for the period of delay beyond 36 months or such extended period.  It is stated in the complaint that the project has not yet completed even though the complainant paid a total consideration of Rs.31,22,702/-.  The complainant availed the housing loan at the rate of interest at 11.25% p.a.  Since the completion of the project was delayed beyond the stipulated period the complainant sent e-mail demanding the delayed compensation agreed to be paid by the opposite parties.  It is alleged in the complaint that the opposite parties have diverted the money collected from the complainant and other purchasers.             The complainant is residing in a rental house by paying a monthly rent of Rs.10,500/- per month.  The apartment was booked in the year 2008 and even after December 2011 the opposite parties have not handed over the possession of the building.  No assurance is so far made by opposite parties regarding the completion of the construction in the near future.  The complainant had to suffer mental agony and hardship and it is to be compensated to the tune of Rs.5 Lakhs.  The complaint is filed for direction to pay the penalty compensation @ Rs.10 per sq.ft for 1236 sq.ft booked by the complainant for the period of delay till the date of completion. It is also prayed for direction to complete the construction of the apartment and to hand over possession of the same with proportionate undivided share in the land and also for the cost of proceedings.

          3.  The opposite parties filed version contending that the relationship between the parties is only contractual in nature.  As it is based on the agreed terms and conditions only a Civil Court or through Arbitration can be proceeded with and not before the Consumer Forum.  The delay in payment of the consideration by the complainant was due to the delay in sanctioning the loan is exclusively within the knowledge of the complainant.  Moreover the sanctioning of the house loan is subject to the sole discretion of the Bank and opposite parties have nothing to do with it and the opposite parties cannot be find fault in sanctioning the Bank loan.  The complainant is a defaulter under the terms of agreement.  The complainant is not entitled for any compensation for the delay in handing over the possession of the apartment as he had defaulted and delayed the payment.  The violation of the agreement does not entitle the complainant to claim compensation for the delay in handing over possession of the apartment.  The complainant paid only Rs.31,22,702/- by various instalments and the averment that no payments are due from the complainant is not correct.  The delay in completing the project occurred due to unforeseen reason and is beyond control of the opposite parties.  It is contended that the project works are progressing fastly and would be completed soon.  No mental agony or hardship caused to the complainant as alleged in the complaint.  Hence the complainant is not entitled for damages for mental agony.  The complaint is filed on an experimental basis and the complaint is only to be dismissed.

          4.  The evidence consisted of the oral testimony of the complainant as PW1 and the opposite party as DW1 and marked documents as Exbts: A1 to A12 and Exbt: B1 on the part of the complainant and opposite parties respectively. 

5.  The counsel for the appellant submitted that the respondent is not entitled for compensation as the respondent was a defaulter as per the terms and conditions of the apartment by buyer’s agreement.  The terms and conditions of the agreement for payment of delayed possession of the building is entitled only for the person which is not a defaulter in payment of the instalments.  The delay in handing over of the apartments caused only due to reasons unforeseen and as per clause 37 of the apartment Buyers agreement the appellant cannot be responsible for non performance of any of its obligations or undertakings due to force majeure conditions.  The interest for the delayed payments does not estop the appellant as the respondent was a defaulter. The delayed payments made by the complainant directly contributed to the delay in construction of the apartment.  Hence the delay in handing over possession cannot be attributed solely upon the appellant.

          6.  The submission made by the respondent’s counsel is that it is admitted that the payment of delayed instalments were accepted with interest by the appellants.  Hence there does not arise the question of delay after payment of interest.  The argument that the delayed payment by the respondent caused the delay in handing over is not at all true.  The counsel also pointed out that as per the agreement entered into between the respondent and the appellant that if the completion of the project is delayed beyond 36 months the appellant would pay Rs.10/- per sq.ft per month as compensation for the period of delay.  The appellant failed to complete the construction of the apartment.  As per the agreement the respondent is entitled to get possession of the apartment and also entitled to get the penalty of Rs.10/- per sq.ft per month for the delayed delivery of the apartment.  The reasons stated by the appellant that the delay caused due to the reason beyond the control of the appellant was not proved by the appellant.  Moreover the appellants collected the delayed payments with interest as per clause 33 in the agreement and the appellants are estopped from the contention that the respondent is a defaulter in making payments.  The order of the District Forum is only to be upheld as the terms and conditions of the agreement is in favour of the respondent.

          7.  We have heard both the counsels at large and had gone through the documents.  It is an undisputed fact that the appellants and respondent entered into an agreement for the construction of the building and its payment details.  It is on evidence Exbt: A8, that the appellants collected interest for the delayed payments as per clause 33 of the agreement.  On accepting the delayed payments with interest the appellant is estopped from considering the respondent as a defaulter.  As per clause 10.4 in Exbt: A4 the appellant is liable to pay compensation to the respondent @ Rs.10/- per sq.ft for the period from the agreed date of delivery of possession of the apartment till the actual delivery date of possession.  It is pertinent to point out that the appellant had not produced any evidence to prove that the reason for the delay for handing over possession is beyond their control.  We are of the considered view that the District Forum rightly found that the appellants are liable to pay compensation and we have no hesitation to uphold the order passed by the Forum Below.

          In the result, appeal dismissed and we uphold the order passed by the Forum below.  

The order is to comply within 30 days on receipt of the copy of this order.

The office is directed to send a copy of this order to the Forum Below along with LCR.

 

 

A. RADHA            :        MEMBER

                                                                                                     

K. CHANDRADAS NADAR  :  JUDICIAL MEMBER

 

 

Sa.

 

 

KERALA STATE CONSUMER

     DISPUTES REDRESSAL

COMMISSION, SISUVIHAR LANE,

VAZHUTHACAUD   

                           THIRUVANANTHAPURAM.

 

 

 

 

 

APPEAL NO.181/2015

JUDGMENT DATED 26/10/2016

 

 

 

 

 

Sa.