Sri Sandeep singhal Sri M.G. Singhal S/o late Kanshi Ram Agarwal
...........Appellant(s)
Vs.
Ittina Properties Pvt., Ltd.,
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
Date of Filing:18.06.2008 Date of Order:05.12.2008 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 5TH DAY OF DECEMBER 2008 PRESENT Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. COMPLAINT NO: 1361 OF 2008 1. Sri Sandeep Singhal S/o Madan Gopal Singhal, Rep. by his POA, Complainant No.2. 2. Sri. M.G. Singhal, Late Kanshi Ram Agarwal, Both r/o No.447, I stage, II Cross, Krishna Temple Road, Indiranagar, Bangalore 560 038. Complainants V/S Ittina Properties Pvt Ltd., 1054, 7th Main, 3rd Block, Koramangala, Bangalore 560 034, Rep. by its Managing Directior. Opposite Party ORDER By the President Sri. S.S. Nagarale This is a complaint filed U/Sec. 12 of the Consumer Protection Act, 1986. The brief facts of the case are that, the opposite party is a registered developer and building company. The complainants entered into an agreement of sale on 08/10/2005 for residential flat. The total sale consideration was Rs.34,59,375/-. As per clause 5 of the agreement opposite party had agreed to convey the physical possession of the schedule property on or before June-2006. As per clause 8 of the agreement opposite party agreed to pay interest at 12% p.a to the complainants for every month of delay. Opposite party has not adhered to the condition of the handing over physical possession as agreed. Same was delayed for more than one year two months due to non completion of the project. Registered sale deed came to be executed on 13/10/2006 in respect of flat No.D-206. Complainants had been in continuous correspondence with the opposite party. Opposite party assured the customers to appropriately compensate for the delay after working out broad guidelines. Compensation was not paid by the opposite party. Complainants were informed that compensation package was in process of finalization. The opposite party neither conveyed the physical possession of the flat in time nor paid any compensation to the complainants as agreed. Opposite party has not paid interest at 21% p.a for delayed period. Legal notice was issued to opposite party, opposite party did not respond to the notice. Opposite party is liable for deficiency of service. Complainants have suffered hardship, mental agony and suffered loss and damage. Complainants suffered opportunity, loss of rent. Complainants would have earned rent of Rs.20,000/- per month. Hence, opposite party is liable to anticipated run from July-2006 to August-2007(14 months) as well as compensation to the complainants. 2. Notice issued to opposite party. Opposite party put in appearance through Advocate and filed defense version contending that the BDA has issued notice to stop further construction of the apartment. The opposite party has approached the Honble High Court of Karnataka in a Writ Petition. BDA has agreed to sanction the plan after filing a contempt petition. Due to various reasons, there was a delay in completion of the building. The opposite party has relied upon Clause-8 and 9 of the agreement of sale. The opposite party has admitted that the stipulated time of delivery of possession as per agreement Clause-7 was May-2006. The delay was not due to act of the opposite party. Opposite party is not liable to pay interest at the rate of 21% because delay is not attributable to the opposite party. The sale deed was executed on 13/10/2006. Three to four times meeting have been conveyed by the opposite party company to consider the grievances of each and every customer. Some of the customers have opted to take back the money and some customers have agreed to continue with the present possession and wait for completion of the construction. For all these reasons stated above, opposite party has prayed to dismiss the complaint. 3. Affidavit evidence of parties filed. Arguments are heard. 4. The points for consideration are:- 1. Whether there was any deficiency in service on the part of the opposite party? 2. Whether the complainants are entitled for loss of rent for 14 months? 3. Whether the complainants are entitled for interest at the rate of 21% for the delay in handing over possession of the flat from June-2006 to August-2007? REASONS 5. It is an admitted case of the parties that the complainants have entered into an agreement of sale with the opposite party company on 08/12/2005 in respect of residential flats. As per the agreement of sale the total cost of the flat was Rs.34,59,375/-. Under the Clause-7 of the agreement the vendors have undertaken to deliver possession of the flat on or before June-2006. Relying on this Clause the complainants have sought compensation for the loss of rent for 14 months because according to the documents i.e., no due certificate the opposite party company handed over the possession of the flat No.D-206 to the complainants on 8th September-2007. One of the complainants had made an endorsement on No due Certificate is as under:- As agreed by your management suitable compensation will be paid by your company to us during October-2007. Sd/- 8th September 2007 6. As per no due certificate of the opposite party company, it is very clear that they have handed over possession of the flat in question to the complainants on 8th September 2007. The date of handing over possession of flat to the complainants, there is absolutely no dispute. Therefore, it is clear that there was 14 months delay for handing over possession of the flat to the complainants (July-2006 to August-2007). The opposite party contended in the defense version that the delay was not attributable to him. It is submitted that delay was caused since there was some legal hurdles and there was litigation between BDA and opposite party company. The matter was taken to High Court in Writ Petition and ultimately the BDA has made delay to sanction the approved plan. Therefore, the opposite party company could not complete the project in time. The opposite party company submitted that delay was beyond its control. Therefore, the complainants are not entitled for compensation for delay in delivery of possession of flats. This kind of argument cannot be accepted. It is the duty and obligation of the opposite party company to abide by the agreement of sale. The opposite party company before starting the project and collecting the huge amount from the customers could have taken all the necessary sanction and permission from the BDA and Government and other agencies. The opposite party company cannot place blame on BDA and other sanctioning authorities for the project. The opposite party company could have complied all the rules and regulations and obtained necessary permission and sanction and thereafter it could have entered into an agreement of sale with the respective customers. Under these circumstances, the opposite party company cannot escape from its liability by saying that delay was not on account of the intentional act of the opposite party. The complainants have invested huge amount with a hope to get the flat as per the agreed date and they cannot be put to any loss for the delay caused by the opposite party company. The complainants are nothing to do with the legal formalities and the litigation between the opposite party company and the BDA. The opposite party company relied upon Clause-8 of the agreement wherein it has been stated that the vendor shall not be liable for any delay in delivery of the apartment by reason of riots, strikes, transport strike, Government restriction, or by reason of Civil commotion or any act of God or due to any injunction or prohibitory order. All these reasons are not applicable to the present case. In this case, it is not the case of the opposite party that there was a court injunction not to proceed with the construction in any civil suit. Even it is not the case of the opposite party that there is a prohibitory order. It is not the case of the opposite party that the delay was caused due to riots, civil commotion or any act of the God. So, under these circumstances, the opposite party company cannot take benefit or defense under Clause-8 of the agreement. The complainants have produced several correspondences taken place between the complainants and the opposite party company. The opposite party company has sent a mail on 09/05/2007 stating that compensation amount will be decided and on the same day you can take the flat possession documents also. In another e-mail letter dated 05/03/2007 the opposite party company has given a letter to complainants as regards the compensation package, they are in process of finalizing the same. Therefore, by the correspondence entered into between the complainants and the opposite party company, it is clear that the opposite party company had agreed in principle to pay the compensation amount and the said matter was under process or consideration. The complainants have also taken possession of the flat by writing endorsement that management had agreed for payment of suitable compensation. So under these circumstances, admittedly there was 14 months delay in delivery of possession. Sale deed had been executed on 13/10/2007 without handing over possession and actual possession of the flat was handed over only in the month of September-2007. It is the case of the complainant that they would have earned rent of Rs.20,000/- per month and due to delay in handing over possession of the flat from July-2006 to August-2007 they could not sent. As regards earning of rent of Rs.20,000/- except, the statement of the complainant no evidence or proof is produced by the complainant to show that the flat could have earned monthly rent of Rs. 20,000/-. But however taking in to consideration of the present rental value of the flat and the area of the flat is 1645 sq.ft., of super built up area. The flat could have earned at least Rs.10,000/- as monthly rent. Therefore, it would be just, fair and reasonable to award compensation of Rs. 1,40,000/- towards loss of rent for the delay in handing over possession of the flat. The Honble National Commission and the Honble State Commission in several cases have held that the delay in delivery of possession of the flat or apartment on the part of the developer and construction company is definitely a deficiency in service. 7. The complainants relying on Clause-8 of the agreement have claimed interest at the rate of 21% for every month of delay. Clause-8 reads that the vendor shall be entitled to a reasonable extension of time for delivery. However, in case of delay other than the above the vendor agrees to pay interest at 21% p.a to the purchaser for every month of delay. This Clause is a very vague and unclear Clause. By this Clause it is very difficult to make out for what amount or which amount the vendor has to pay the interest for every month of delay. The complainants have not produced any evidence or documents or Bank statement or payment schedule to show that, what was the amount paid by them as on June-2006 the date agreed for handing over possession. Clause-8 is very confusing and we cannot make out a definite case as to on what amount and from which date the vendor is liable to pay interest. Therefore, without there being any proper proof and evidence, this Fora cannot pass orders in respect of payment of interest. The payment of interest as requested by the complainants cannot be decided or settled by this Fora in a summary manner. However, the payment of interest being a definite amount it requires to be decided by Civil Court in properly instituted suit. Nonpayment of interest cannot be considered as deficiency in service. Therefore, the complainants will be at liberty to claim the amount of interest from the opposite party company by filing civil suit. So, under these circumstances, we are unable to pass order or grant any relief to the complainants in respect of payment of interest as per Clause-8 of the agreement of sale. So, taking into consideration of all the facts and circumstances of the case, the complaint deserves to be allowed partly. In the result, I proceed to pass the following:- ORDER 8. The Complaint is partly allowed. The opposite party company is directed to pay Rs.1,40,000/- to the complainants as compensation within 30 days from the date of this order. In the event of noncompliance of the order within 30 days the above amount carries interest at 12% p.a from the date of this order till payment/realization. 9. The complainant is entitled to Rs.5,000/- towards costs of the present proceedings from the opposite party. 10. Send the copy of this Order to both the parties free of costs immediately as a statutory requirement. 11. Pronounced in the Open Forum on this 05TH DAY OF DECEMMBER 2008. Order accordingly, PRESIDENT I concur the above findings. MEMBER Rhr.
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