BEFORE THE DISTRICT CONSUMER      

       DISPUTES REDRESSAL FORUM, DHARWAD.

COMPLAINT NO.251/2016
 

Date: 26^th day of July, 2017

                                                                                                P r e  s e n t:                 

                                                             Smt.C.H.Samiunnisa Abrar, B.A., LLB   :  President

             Sri.B.S.Keri, B.A., LLB (Spl)                  :   Member

JUDGEMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The Complainants has filed this Complaint against the Opposite Party (herein after referred in short as OP) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OP.

2.      The brief fact of the case is that the Complainants GPA holder had entered into an agreement of Sale (Without Possession) on 09-10-2013 with respect of Flat No.104, located on the 1^st Floor having super built up area of 1421.20 sq. ft. in Op’s development project (B-R Grant Project) commenced by the OP’s Company. The OP and Complainants in presence of witnesses has got executed an Agreement of Sale.   Situated at Doddathogur Village, Near Electronic City Bangalore South Taluka. According OP assures that, the project would be completed within 10 months with additional grace period of 2 months, the OP’s sober representation the Complainants had agreed to purchaser the Flat No.104 for his exclusive use and enjoyment, as he was not having any accommodation in Bangalore as they are working in Bangalore.

3.      The Complainants being bluffed by the OP’s  project work was made to invest a sum of Rs.7,46,130/- and Rs.2,48,710/- totally amounting to Rs.9,94,840/- which was paid by cheque bearing NOs.195697 and 195698 respectively of ICICI Bank Bangalore. Being the 20% of the agreement amount towards the purchase of flat out of total consideration of Rs.49,74,200/-. The said amount was paid on 09.10.2013. According to the terms of Agreement, the OP was supposed to deliver the said flat within a stipulated period.  Of 10 months with additional grace period of 2 months in case of any contingency with regard to availability of raw materials and NOC or change any rules etc. from the date of Agreement.

4.      The Complainants visited the OP’s Office at Hubli and also at the construction site to know about the progress of the construction work, but the OP and his officials gave a lame excuse that, the construction work of the project is going on. Whereas, the Complainants when personally visited the construction site he was astonished to know that there was no any construction work carried out. The Complainants again enquired the OP through on 05.04.2016, 06.04.2016, 07.07.2016, 13.07.2016, 29.08.2016 and 21.10.2016 consequently and on calls, but the OP have lame excuses and begged for time.

5.      The Complainants states that the act of OP not completing the construction of work and mutualizing the Complainants amount advanced towards the project and purchases of his flat amount to diligence in service, miss-appropriation of funds. The Complainants further stated that OP himself are not interested in continuing with the project and simply withholding the Complainants amount. Therefore, the Complainants is now not at all interested in the OP’s Project. The Complainants was under the impression that, he would get his flat ready in the month of November, 2014 but the things did not happen so, only because of the OP negligence in completing the project and high hand act of mutualizing the Complainants advance amount paid towards the said flat. The Complainants has suffered a monitory loss of paying Rs.2,28,000/- only towards rental for not fault on his part and unfair trade practice and as such liable for action under the C.P. Act. The Complainants has invested his amount of Rs.9,94,840/- since from 09.10.2013 which has been used by himself and Complainants issued the legal notice to OP’s the said notice of Hubli address have been delivered to OP but Bangalore address notice was returned with an endorsement ‘Door Lacked’ but OP neither  replied nor complied hence OP is liable to pay an interest at 18% p.a. on the said amount and also Complainants prays that OP be directed to pay Rs.50,000/- as the damages.       

6.      After receipt of notice, OP appeared through his counsel and filed written version. The sum and substance of the contentions of OP is as follows;

          7.      The Complaint of the Complainants is neither maintainable in law nor on facts. The Complaint is misconceived and is without a cause of much less a cause of action. This Forum does not have territorial jurisdiction to entertain the Complaint. Therefore, the Complaint filed before this Forum is without jurisdiction and this be tried as a preliminary issue regarding maintainability of the Complaint before this Forum. The OP also contended that an agreement has been entered regarding the sale of an apartment on 09.10.2013 itself and according to the terms of the agreement for sale without possession which agreement again was executed, signed and agreed upon in Bangalore only in the present of witnesses on 09.10.2013. On this count also, this Forum does not have the jurisdiction to entertain the Complaint.

          8.      In terms of the Agreement, the Complainants paid by cheque an amount of Rs.9,94,840/- as advance consideration amount and he was require to pay a sum of Rs.32,33,230/- at the time of signing the agreement which he has failed to pay and therefore the Complainants is “pari delicto” i.e. equally guilty if there be any laxity or delay in fulfilling the terms and conditions of the agreement of sale. Clause (f) of Para 6 of the agreement of sale contains a condition to the following effect:

“Delay of default in payment of dues by the purchaser under these presents’ in such events the period of possession will stand extended.”

          9.      That the agreement of sale between the Complainants and the OP referred to above dated: 9.10.2013 also contains a clause No.6 to the following effect:

          10.   That the terms and conditions stipulated are subject to the clause such as (b) Non availability of steel and or cement or any such building atrial or by reason or war, civil commotion or any natural disaster or (e) Delay in grant of any NOC/permission /licence /connection for installation of any services, such as lifts, electricity and water connections and meters to the project/Flats/road or completion certificate from appropriate authority.

          11.    Hence, for all these reasons, OP is not liable to pay the interest on the amount of Rs.9,94,840/- claimed to refunded at 18% p.a. or any other such relief. OP has been no deficiency in service as claimed by the Complainants nor is there a case for the Complainants to invoke the jurisdiction of this Forum. Hence this Complaint please be dismissed with costs.

12.   In the background of the above said pleadings, the Complainants filed his affidavit and produced the documents which are marked as EX C-1 to C-10. They are:

1. EX C-1 Agreement of Sale dated: 09.10.2013.

2. EX C-2 General power of attorney,

3. EX C-3 Allotment letter,

4. EX C-4 11 Email correspondence

5. EX C-5 WhatsApp correspondent

6. EX C-6 Legal notice

7. EX C-7 Postal Receipt

8. EX C-8 Postal Acknowledgement,

9. EX C-9 Postal Cover, and letter.

10. EX C-10 Positive Photographs (2 in Nos.)

13.    On the other hand, Op filed the Written Version and one Sri. Pradeep S/o Dattatreya Raikar, filed Chief Affidavit by way evidence.

14.    on perusal of above documents and arguments heard on both the sides, the points arises before us for adjudication is as follows:

Our Answer to the above Points are:-

Point No.1 – Negative

Point No.2 – Affirmative

Point No.3 – Partly Affirmative 

Point NO.4 – As per the final order.

15.    On consideration of pleading, objection, evidence, documents and arguments of the parties, we answer the above points as under:

-::R E A S O N S::-

16.  Point No.1:- The Complainants filed this complaint against OP alleging that OP No 1 and 2 entered in to an agreement with the Complainants for purchase for the flat as such agreement was executed on 09.10.2013.  As per the agreement Complainants paid an amount of Rs.9,94,840/- in total in advanced as per the assurance of the OP the project should be completed within  10 months with additional grace period of 2 months. OP had submitted that agreement executed at Bangalore, the cheque of ICIC Bank issued in fever of OP is of Bangalore Branch and also Head office of OP lies in Bangalore.  Hence the Complainants filed the by the complaint does not fall in this jurisdiction. And also the matter falls under civil proceedings. 

17.   Ongoing through the records on file and pleadings of both the parties the first and fore most important point to be decided is that whether the complaint filed by the Complainants falls under this territorial jurisdiction and is barred by limitation?. The document C-1, allotment letter dated 10.10.2013, and agreement of sale and email conversation between parties filed by the Complainants says that of course the agreement shows it is executed at Bangalore but in the bottom of the allotment letter address to the Complainants it is clearly printed that the Branch office of the OP is situated at Hubli –Dharwad.  The stamp paper was purchased at Bidarhalli credit Souharda sahakara Niyamit Hubli and the witness who have signed the agreement or from Hubli and another one is from Dharwad now it is Clear that the documents produced by the Complainants the conversion made between OP and Complainants through made dated:23.09.2013 in which OP had clearly stated that “good morning good after noon Satish’’ to sign the agreement we will send our execute convenient place/s.  To line of the things please inform us with a time spam,

18.   These are the conversation between the parties by which it is clear that the OP had an office at Hubli and agreement was executed at Hubli only. The another thing OP raised before the Forum that the complaint is barred by  limitation Complainants  filed some conversation before the Forum and drawn the attention towards WhatsApp massages the last WhatsApp massage was on November 2016 from Pradeep who is none other than the managing  partner of NEW ROSTAL CONSTRUCTION who himself executed the agreement with the Complainants. These documents have not denied by the OP’s hence we answer point No. 1 in Negative.

19.   Point No.2 & 3: Since Point No.1 and 2 interlink and identical we proceed both the points together for consideration.

20.   Since it is admitted fact that OP had entered into an agreement and received an amount of Rs.9,94,840/- from the Complainants, these are the undisputed point.  According to the agreement between the Complainants and OP the OP had to complete the construction work and handover the possession of the flat to the Complainants with stipulated time, but OP had failed to do so, OP cannot rang the time giving untenable reasons after collecting a huge amount towards advanced and used it from the year 2013 till date.  OP has retained the amount till date without handover the flat or refunding the amount to the Complainants.  This act of OP in neither handover of the possession of flat nor refunding the amount to the Complainants amounts to deficiency in services on the part of OP.  We are satisfied the Complainants proved deficiency in services against the OP. Under these circumstances OP is liable to pay the amount with interest another reliefs hence we answer point NO.2 in affirmative point No.3 in partly affirmative.

21.   Point No.4: For the reasons and discussion made above and findings on the above points, we proceed to pass the following

-::O R D E R::-

1.      The complaint filed by the Complainants is allowed in partly.

2.      Op is directed to pay an amount of Rs.9,94,840/- (Rupees nine lakh ninety four thousand eight hundred forty) along with interest @ 9% from the date of filling this complaint to the Complainants. 

3.      Further op is directed to pay Rs.2000/- (Rupees two thousand only) towards litigation charges and Rs.10,000/- (Rupees ten thousand only) towards mental agony and harassment to the Complainants.

4.      Further op is directed to comply this order within 45 days from the date of this order failing which op is liable to pay an interest @ 12% from the date of execution of the agreement till realization.

5.      Send a copy of this Order to both parties free of cost.