BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 08^TH DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  joint complaint has been  filed  by husband and wife against opposite party for the following reliefs

1. Direct the opposite party to pay Rs.3,84,000/- along with interest 18% p.a. towards compensation in delayed completion of the schedule property, in terms of the agreement of sale and agreement of construction both dt. 16.10.2014.
2. To direct the OP to pay Rs.10,00,000/- towards deficiency in service and  mental agony.
3. Such other reliefs as this Hon’ble Forum deems fit.

2.The brief facts of the complaint are as follows:

The complainants having entered into agreement dt.16.10.2014 with the OP and paid total sale consideration of Rs.48,43,237/-. The OP under the agreement of construction 16.10.2014 agreed to  complete the construction work on or before March 2016 with extended  six months grace period upto September 2016, but OP failed to complete the project by September 2016.

        As per construction agreement, the OP agreed to pay Rs.8,000/- per month for 03 BHK apartment from September 2016 till date of completion.

It is further case of the complainants that the OP has executed absolute sale deed in favour of the complainants dt.22.10.2020 in respect of agreed apartment of 03 BSK. Therefore, OP is liable to compensate the complainants to the tune of Rs.3,84,000/- with interest at 18% P.A. Despite legal notice, the OP failed to comply the request of the complainants. The act of the OP amounts to deficiency of service. Hence, this complaint. 

2. In response to the  notice, the OP appears and files version. The OP contends that the complaint is not maintainable either in law or on fact. The OP admits execution of  agreement of sale, construction agreement  and receipt of consideration amount. The sale deed came to be execute in favour of the complainants on or before 22.10.2020. The OP admits that the construction  was supposed to be completed latest by September 2016 and it was liable to pay Rs.8,000/- per month till date of completion in case of delay in completion of construction.

3. The OP  states that  due to unavoidable circumstances project could not be completed and in order to compensate the complainants voluntarily   provided specifications in lieu of monetary  compensation. Therefore, there is no deficiency of service  and complainants are not entitled to any monetary reliefs. The OP requests to dismiss the complaint.

4. The complainants files his affidavit evidence of complainant no.1 and rely on 11 documents. The OP has filed  his affidavit evidence  of its Power of Attorney holder and 01 document came to be marked.

5.          Heard the arguments of the advocates. Perused records.

7. The following points arise for our consideration are as under:-

1. Whether there is deficiency of service on the part of the OP?
2. Whether the complainant is entitled to the reliefs sought for?
3. What order?

8. Our answer to the above points are as under:

       Point No.1:- Affirmative in part.

      Point no.2:- Affirmative in part.

      Point No.3:-As per the final order.

REASONS

9. Point Nos.1 and 2:. The dispute between the parties is very limited. According to the complainants the OP is liable to pay Rs.3,84,000/- with interest at 18% P.A. for delay in completion of the construction as per agreement sale and agreement of construction. The complainant also claims Rs.10,00,000/- towards the deficiency of service and mental agony.

10. The agreement of sale came to be executed  between the complainants and OP on 16.10.2014 for sale consideration of R.9,94,644/-in respect of schedule-C property i.e. 3 BHK bearing no.H-104 of “H” block measuring super build up area  of 1263 sq.ft.. Similarly, the construction agreement came to be executed between the same parties as per document no.2. for consideration.  The total consideration agreed between the parties was Rs.48,43,237/- and  payment  of this consideration is not in dispute. The payment of consideration is also proved from document no.3.

11. There was Tripartite agreement  between the complainants, OP and State Bank of India vide document no.4. State Bank of India is not the party to this proceedings. It is also admitted fact that the OP issued document no.5 dt.06.05.2016 stating that OP had decided voluntarily  to provide certain specification as  goodwill gesture. The following are of voluntarily upgraded certain specifications.

1. Laminated wooden flooring in master bedroom.
2. DTH/Internetconnection infrastructure.
3. UPTV Three track windows with mosquito mesh.
4. Fully loaded Master bed room bathroom-Geyser, Mirror,Exhaust Fan and Towerl Hangers of reputed make.
5. Basic Home Automation.

  Further by issuing  document no.6 dt.20.07.2019 the OP  estimated upgraded specification is Rs.2,50,000/-.

12. It is the definite case of the OP that in order to avoid inconvenience of  payment of compensation, the OP had provided specification of  upgradation. It is relevant to note that the OP has provided upgradation voluntarily  and more over there is no request from the complainant to provide these upgradation. Under such circumstances, the OP cannot   unilaterally take decision  about adjustment  of cost of  upgradation towards payment of Rs.8000/- per month for delay in completion of the project.

13.  At this stage, it is relevant to refer clause-15 of construction agreement, which reads thus

“In the event the  first party delays in construction of the schedule B Apartment for reasons otherwise than set out above, the first party shall pay to the second party on aggregate sum of Rs.7000/- per month for a two bedroom apartment an Rs.8000/- per month for a three bed room apartment from the due date of September 2016 till the date of completion. ”

       There is no dispute between the parties about this clause. The OP has also admitted in the version about payment of Rs.8000/- per month for belated completion of the project. It is also admitted and proved from document no.8 Absolute Sale Deed  that the OP had executed registered sale deed dt.22.10.2020 of completion of the project in favour of  complainant. It means that  OP failed to complete the project by September 2016 and execution of sale deed only on 22.12.2020 on completion of the project. Therefore, OP is liable to pay Rs.8,000/- per month from October 2016 till September 2020 i.e. period of 48 months. The complainant  is right in claiming Rs.3,84,000/- on the basis of clause-15 of the construction at the rate of Rs.8000/- per month for a period of 48 months.

14. It is true that the OP issued letter under document no.9 dt.07.04.2021 stating that in lieu of the compensation specification upgradation at the cost of Rs.2,50,000/-  was provided.  The OP is right in adjustment voluntarily  cost of upgradation of Rs.2,50,000/- against Rs.3,84,000/-. It is specification upgradation  only as goodwill gesture voluntarily provided by the OP without any payment or request from the complainants.

15. This complaint is preceded by legal notice dt.10.05.2021. It is true that State Bank of India addressed letter dt.23.11.2021 with statement to the complainants about dues. But, we are not concerned about these dues in this case. Even though power of attorney holder of OP reiterated the facts pleaded in the version, but he has not disputed the terms  of construction agreement and execution of sale deed. According to the OP, the possession of the flat was provided through letter dt.26.08.2021. The complainants are entitled for Rs.8,000/- per month till completion of the project. Admittedly, on the date of execution of registered sale deed dt.22.10.2020 project was completed. Exhibit R1 GPA is  executed in favour of B.C.Jagadhish. It is not the case of the OP that at the request of the complainants only the specification upgradation  worth Rs.2,50,000/- was provided to the complainants. In the absence of privity of contract between the parties, the OP has no right in seeking adjustment of the cost upgradation of Rs.2,50,000/- in Rs.3,84,000/-.

16. Even though the complainants proved that the OP is liable to pay Rs.3,84,000/- for delay in completion of the project, but the complainants are not entitled to either interest or any amount towards compensation. The complainants are beneficiary of specification upgradation worth Rs.2,50,000/-. Even this upgradation is taken as voluntarily goodwill gesture of the OP, it does not mean that the complainants can also claim interest and compensation. The complainants have also benefited the goodwill gesture of upgradtion worth Rs.2,50,000/-. Even there is a deficiency on service in non-payment of Rs.3,84,000/- as stated above, the complainants are not entitled to interest on compensation for deficiency of service and mental agony as they are beneficiaries of voluntarily goodwill gesture of upgradation specification worth of Rs.2,50,000/-.

17. Point no.3:-.  In view of the discussions referred above, the complaint requires to be allowed in part. The OP is liable to pay Rs.3,84,000/- only to the complainants. The request of the complainants to award interest and compensation is rejected. It is proper to impose time limit on the OP to pay Rs.3,84,000/- towards delay in completion of the project to the complainants.   Accordingly, we proceed to pass the following  

O R D E R

1. The complaint is allowed in part.
2. The OP shall pay Rs.3,84,000/- only  to the complainants and pay Rs.10,000/- towards cost of litigation. 
3.  The claim of interest and compensation of the complainants is rejected.
4. The OPs  shall comply this order within 60  days from this date, failing which the OP shall pay interest  at 12% p.a. on Rs.3,84,000/- after expiry of 60 days from this date till payment.
5. Furnish the copy of this order to both the parties and return extra copies of pleadings and documents.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 8^th  day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :