D.O.F:13/08/2020
D.O.O:31/10/2023
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.92/2020
Dated this, the 31st day of October 2023
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SMT.BEENA.K.G : MEMBER
K Sanjaya Nayak, aged 44 years
S/o K Narasinga Nayak,
Residing at Sri Lakshmi Narasimha Kripa,
Anganwadi Road, Aiyappa Nagar,
Adkathbail, Kasaragod – 671121.
Represented by GPA holder
M Vasudev Bahat, aged 50 years,
S/o Late M Srinivas Bhat,
Resident of Srinivas Mahamaya Temple Road,
Mangalore – 575001.
(Adv: Shrikanta Shetty K.) : Complainant
And
Mithun Maroli, aged 29 years
S/o M Balakrishna Suvarna,
Residing at Natti house,
Maroli village,
Kulashekara Post,
Mangalore – 575005. : Opposite Party
(Adv: Naveen S.N.)
ORDER
SMT.BEENA.K.G : MEMBER
The complainant is represented by his general power of attorney holder, brother-in-law, who is conversant with the facts of this case. The opposite party is a person engaged in the sale of constructed houses, flats etc, for the public and for the purpose of purchasing an apartment to be built at Tharaitote road of Maroli Village of Kulasekhara Post of Mangalore district under the name and style “M.B NEST”. The complainant booked the residential apartment of 1140 square feet super bit area with car parking with the opposite party in the year 2013. The total sale price fixed was Rs.33,64,000/-. The complainant paid a sum of Rs.27,50,000/- as a part of the sale consideration. And the balance to be paid at the time of delivery of possession and registration. The opposite party as vendor thereby acknowledged the receipt of advance sale consideration and an agreement is also executed between the parties containing the terms and conditions of sale. An amount of Rs.27,5000/- was given as the advance sale consideration paid to opposite parties in 3 installments, Rs.10,55,455/- on 13/03/3013 bearing cheque No.849814 drawn on the Bank of Maharashtra, Rs.10,50,000/- by way of cheque dated 13/03/2023 bearing No.849813 drawn on the Bank of Maharashtra and Rs.6,44,559/- on 15/09/2015. The time limit for the completion of the construction and convey the possession of the flat by the opposite party to the complainant was on or before 31/12/2017. But the opposite party failed to complete the construction and deliver the possession of the scheduled property as per the agreement dated 05/09/2017 and the time is further extended upto 31/10/2019 by the endorsement dated 31/07/2019 with mutual consent. In the agreement, there is an undertaking by the opposite party that in the event of delay in construction beyond 31/12/2017, the vendor shall be liable to pay the purchaser, compensation at the rate of Rs.8,000/- per month. Since the opposite party did not complete the construction work, notices sent as the matter of compromise, time extended further upto 31/10/2019 and as consolidated compensation, the opposite party agreed to sell the schedule apartment and to refund the advance sale consideration of Rs.27,50,000/- along with a sum of Rs.2,00,000/-. The complainant as a buyer lost his confidence with opposite party that he was not ready to wait indefinitely for possession of the flat. Thereafter also the opposite party neither completed the construction and handed over possession nor refunded the advance amount to the complainant. Hence the complainant is seeking refund of the amount Rs.34,75,000/- with a compensation of Rs.5,00,000/- and a cost of Rs.25,000/-.
On 15/10/2020 the opposite party filed IA 122/2020 to refer the matter to arbitration conciliation. In Sky Park couriers Ltd Etc Etc V/S Tata Chemicals Ltd Etc Etc on 12 May 2000, NCDRC held that even if their exists an arbitration clause in an agreement and a complaint is made by the consumer in relation to certain deficiency in service then the existence of an arbitration clause will not be a bar to the entertainment of complaint by the redressal agency. IA dismissed. The opposite party filed version after the time limit on 24/12/2020 after 45 days of filing the complaint. The opposite party also produced the agreement which is marked as Ext.B1.
The complainant filed proof affidavit in lieu of chief examination and the documents produced are marked as Ext.A1 and A2. Ext. A1 is the general power of attorney dated 01/02/2019 executed by K. Sanjaya Nayak to M. Vasudev Bhat and A2 is the agreement of sale dated 05/09/2017 with endorsement on 31/07/2019 executed in between Mithun Maroli and K. Sanjaya Nayak.
The main issues raised for consideration are;
- Whether there is any deficiency in service on the part of opposite party in completing construction and handing over possession of the apartment MB NEST?
- Whether the complainant is entitled for relief?
- If so, what is the relief?
The complainant entrusted the construction work of his apartment MB NEST to opposite party by fixing a consideration of Rs.33,64,000/- and both parties entered into a written agreement dated 05/09/2017, and the complainant paid a sum of Rs.27,50,000/- as a part of sale consideration and the balance to be paid at the time of handing over possession and registration. As per the agreement, the time limit for the completion of the construction and convey the possession of the flat by opposite party to the complainant was on or before 31/12/2017. But the opposite party failed to complete the construction and deliver possession of the flat to the complainant within the stipulated time. The written agreement dated 05/9/2017 is further extended upto 31/10/2019 by mutual consent on 31/07/2019. The condition No.4 of the agreement is that in the event of delay, in construction beyond 31/12/2017, the vendor shall be liable to pay the purchaser compensation at the rate of Rs.8,000/- per month. Since the opposite party failed to complete the construction work, notices sent and as a matter of compromise, the time extended further upto 31/10/2019 and as a consolidated compensation, the opposite party agreed to sell the scheduled apartment and to refund the advance sale consideration of Rs.27,50,000/- along with a sum of Rs.2,00,000/-. Thereafter also, the opposite party neither completed the construction of the scheduled flat nor handed over the physical possession of the flat to the complainant. The complainant as a buyer can be expected to wait for a reasonable period and a joint endorsement was made on 31/10/2019. Thereafter also the opposite party is very negligent in his work and he is unable to complete the construction work and handed over the scheduled property to the complainant. So, the complainant and opposite party made an endorsement dated 31/07/2019 as follows, the vendor could not complete the construction within 31/12/2017 and execute and register the sale deed in favor of the purchaser(complainant) and the parties have exchanged legal notices in that regard. Since the vendor has not been able to complete the construction, the purchaser has demanded refund of advance sale consideration of Rs.27,50,000/- with interest at prevailing home loan rate. However, the vendor has agreed and undertaken to complete the construction and sell the apartment within 31/10/2019 and refund the advance sale consideration of Rs.27,50,000/- along with a sum of Rs.2,00,000/-. In default, the purchaser is entitled to avail legal remedies of his choice. The NCDRC in JulietV/s M/s Malathi Kumar IV (2005) CPG51 (NC) has held that cause of action remains continuous till allotment of site or refusal. The same view has taken in Tata construction and others V/s Dr. Ramesh Chandra Ramniklal Shah and another III (1999) CPJ 46 (Supreme Court). Under the above circumstances it cannot be held that the complaint is barred by limitation.
Thereafter also, the opposite party failed to comply the conditions made in the endorsement dated 31/07/2019. Even after filing the complaint also, the opposite party failed to provide a relief to the complainant so far. The complainant lost faith on opposite party and he is at liberty to seek legal remedy of his choice, as per the endorsement dated 31/07/2019.
The Commission perused the materials on record submitted by both parties, there is a clear deficiency in service on the part of opposite party as per Ext A1, due to which the complainant had undergone severe mental agony and huge financial loss. The opposite party is liable to compensate the loss and agony undergone by the complainant due to his negligence. Hence the complainant is entitled for relief. The prayer of the complainant is to refund Rs.27,50,000/- along with a sum of Rs.2,00,000/-(As per the endorsement made on Ext.A2), the opposite party is liable to give a reasonable compensation and cost also. The relief claimed by the complainant is reasonable except cost of litigation. In DLF Homes Panchukla Pvt. Ltd V/S Dhanda Etc Etc (May 10,2019). The compensation for loss and injury for mental agony and physical harassment, hardship and difficulty, uncertainty and helplessness can be neither meager nor exorbitant, but has to be just an equitable, the commensurate with the loss and injury.
In Navin Khanna (Dr.) and others V/S Unitech reliable projects Pvt Ltd and another 2016 (2) CLT 456 (NC)
The NCDRC in the above case held that unless and until the complainants get the possession of the flats they have got continues cause of action-The complainants are entitled to get refund of the amount with interest at the rate of 18% per annum from the date of deposit till realization. In the light of the above said discussions this commission allows the complaint.
In the result, complaint is allowed directing opposite party to refund Rs.27,50,000/-(Rupees Twenty Seven lakhs Fifty thousand only) with interest at the rate of 9% from 13/03/2013 (Rs.21,05,441/- is paid on 13/03/2013) till disbursal along with a sum of Rs.2,00,000/-(Rupees Two lakhs only) to the complainant. The opposite party is further directed to give a compensation of Rs.5,00,000/-(Rupees Five lakhs only) to the complainant along with a cost of Rs.10,000/-(Rupees Ten thousand only).
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1 – General power of attorney
A2 – Agreement of sale
B1 – Copy of agreement of sale
Witness cross-examined
PW1 - M. Vasudev Bhat
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
JJ/
