BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH)
DATED THIS THE 1st DAY OF MARCH, 2024
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, LADY MEMBER
COMPLAINT NO.8/2018
1. Mr.Philip Daniel S/o late P.P.Daniel,
Aged about 63 years old,
Residing at Villa A4A,
Heera Vastugramam,
Rajgiri Valley, Kakanad,
Kochi-682 039
….Complainant/s
2. Mrs.Lalitha Daniel w/o Phillip Daniel,
Aged about 59 years old,
Residing at Villa A4A,
Heera Vastugramam,
Rajgiri Valley, Kakanad,
Kochi-682 039
3. Mr.Priya Daniel D/o Philip Daniel,
Aged about 33 years old,
Residing at Villa A4A,
Heera Vastugramam,
Rajgiri Valley, Kakanad,
Kochi-682 039
(By Sri.B.V.Nidhishree, Advocate)
-Versus-
1. M/s. Adarsh Developers,
No.10, Vittal Mallya Road,
Bengaluru-560 001
Represented by its partner
Sri.B.M.Karunesh,
… Opposite party/s
2. Sri.B.M.Karunesh
Aged major,
Father’s name unknown to
The complainants,
Villa Bo.46, Adarsh Palm,
Meadows, Off Ramagondanahalli,
Varthur, Bengaluru-560 066
(OP Nos.1 and 2 by Sri.V.B.Shivakumar, Advocate)
O R D E R
BY SMT.SUNITA C.BAGEWADI, MEMBER
The complainant filed this complaint against the Opposite Parties alleging deficiency in service and prays to direct the Opposite Parties to pay Rs.80,57,669/- as compensatory damages at 18% interest on amounts paid by the complainants towards sale consideration and furnish the true extent of apartment conveyed under sale deed dated 18-2-2017 and refund excess consideration collected towards 3635 sq. ft. super built up area and to provide and complete all common amenities and facilities that were to be made available to the complainants as stated in the agreement dated 23-12-2010 and register an addendum/ modification or rectification to the sale deed dated 18-2-2017 in favour of the complainants and grant such other relief, in the interest of justice and equity.
2. The brief facts of the complaint is that believing the OP’s representations to be bonafide considering that the OPs advertises itself to be a certified SIO 9001:2008 organization, the complainants paid an initial booking amount of Rs.4.00 lakhs at a purchase price of Rs.2515/- per sq.ft. vide cheque bearing No.078722 dated 24-9-2005 towards flat no.F-702 at block F, Tower. The complainants were desirous of purchasing a 4 bedroom penthouse at the inception of the transaction. However at the time of purchase since the OPs did not have ready availability of 4 bedroom penthouse the booking was accepted by the OPs towards a 4 bedroom apartment, but a 3 bedroom apartment was allotted to the complainants with the assurance that the complainants would be upgraded to a 4 bedroom penthouse when the 4 bedroom penthouse would be available. The OPs also assured the complainants that if the 4 bedroom penthouse was not available then the allotted 3 bedroom apartment would remain unaltered.
The complainants further submits that subsequently the complainants continued to promptly pay the remaining installments of the booking amount of Rs.1,59,417/- vide cheque No.328604 dated 4-10-2005 and a sum of Rs.3,72,945/- vide cheque No.328606 dated 14-10-2005. Further in November, 2005 the complainants made a payment of Rs.14,27,262.50 amounting to 25% of the sale consideration. Consequent to the aforementioned payments, the OPs issued two allotment letters dated 15-11-2005 for apartments numbered 702 (a) and 702 (b) in block E at Adarsh Palm Retreat, Tower 4 having a total built up area of 958 sq. ft. for a consideration of Rs.25,76,858/- and a total built up area of 1312 sq. ft. for a consideration of Rs.37,29,061/-, totaling a consideration of Rs.63,05,919/- towards the apartments.
The complainants further submits that time being the essence of the contract, there was an explicit assurance from the OPs that the project would take two years for completion and would be completed in the year 2007. Based on this representation, the complainants came forward to purchase an apartment in the project as they were residents of Muscat and they wished to move back to India and reside in the apartment they intended to purchase. As aforementioned, the complainants had at the time of booking, requested for a 4 bedroom penthouse apartment and thus, in the year 2010 the complainants were allotted apartment No.1003 having 3635 sq. ft. super built up area, on the tenth floor of “Boungen villa” block F along with 1006 sq. ft. undivided right, title and interest in the project, two car parks and the exclusive right to use and enjoy 566 sq. ft. of private terrace area.
The complainants further submitted that thereafter on 23-12-2010 the complainants were compelled to enter into a unilateral agreement to sell. The 1st complainant visited the project site regularly and was shocked and dismayed to find that the progress of the project construction was negligible. The 1st OP had further delayed the construction of the apartment by 6 months. For reasons best known to the OP, in the year 2011, it intimated the complainants that the construction of the complainants’ apartment would be complete on 16-10-2012 and the handover of the apartment would be on 9-6-2013. Finally after a delay of nearly 5 years from the agreed upon date of delivery of possession and an inordinate delay of nearly 12 years from the date of booking, the OPs executed a sale deed dated 18-2-2017 in favour of the complainants. However, the project is still not fully complete and under construction. Some of the common amenities promised to the complainants are still under construction. Moreover a perusal of clause 2 on page 17 of the aforementioned document shows that the OP admittedly states that only constructive possession of the apartment has been handed over to the complainants. Thus the registration of the aforesaid sale deed was merely a notional attempt on the part of the OPs to evade responsibilities. Further the complainants were pressurized and to register the sale deed circulated by the OPs. A perusal of the terms of the sale deed clearly indicate that the terms and conditions thereof are contrary to the sale agreement entered into between the parties and further are entirely one sided so as to attempt to shield the OPs gross negligence and omission.
The complainants further submits that clause 5 of the sale agreement dated 23-12-2010 indicates that the apartment was to be delivered by the OP to the complainant within 21 months from the date of signing of the said agreement with a grace period of three months i.e. on or before 23-9-2012 and in any case taking into account the grace period, on or before 23-12-2012. Further the agreement also states that the OPs are to pay Rs.2/- per sq. ft. area of the apartment per month as damages, in the event of delay in sale on account of construction of the apartment. Thereafter the complainants were constrained to issue a legal notice dated 7-7-2017 stating their grievances and calling upon the OPs to duly compensate. However, instead of acting upon the said notice the remedying the defects therein, the OPs has issued a frivolous reply to the notice. Hence, this complaint is filed.
3. After service of notice, the OP No.1 and 2 appeared through their counsel and filed version. The OPs have admitted certain allegations of the complainants and denied all other allegations. Further contended that allotment letter clearly describes that the booking of the apartment was subject to approval of the project from the concerned authority and the balance payment of the apartment to be collected within 10 days or after delay approval is obtained, the complainants have accepted all the terms and conditions of the allotment letter and well aware of the same.
Further the OPs contended that, the OPs have collected the booking amount for 3 bed room apartments from the complainants and not for 4 bed room apartments. Subsequently the complainants approached the OPs in the later stage, expressed requirement of 3 bed room apartment to 4 bed room pent house, for which it was agreed by the OPs and allotted 4 bed room apartment in F 1001, transferred the said booking amount paid to apartment No.702 (a) and (b) without any extra charges. Later on the request of the complainants, the OPs to shift the apartment from F 1001 to F 1003 vide mail dated 21-12-2010, requested to send revised calculation rates agreement and payment made for shifting the apartment to F 1003 and entered into a new agreement on 23-12-2010. All changes were accepted by the OPs without charging any additional booking fee etc.
The OPs further contended that, the delay would be caused by the government agencies, sanctioning of the plan, approvals that would be required to be given which is not intentional. The OPs further contended that, the common amenities would become assessable only when all apartment owners joined together for the contribution to maintain such of the amenities and once the registered sale deed is executed, right, title, interest, ownership, there arises seizure of the relationship of service provider and consumer. The complainants seize to be a consumer and the OPs seize to be a service provider and pray to dismiss the complaint by imposing cost.
4. The complainants filed their affidavit evidence and marked documents at Exs.C1 to C15 and the OPs also filed their affidavit evidence.
5. Heard the arguments from both parties.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complainants have proved the deficiency of service on the part of the Opposite Parties?
(2) Whether the complainant is entitled for the reliefs as sought?
(3) What order?
7. The findings to the above points are;
(1) In the affirmative
(2) In the partly affirmative
(3) As per the final order
R E A S O N S
8. Point Nos.1 to 3:- Perused the contents of complaint, objections filed by the OPs, affidavit evidence of complainants and OPs and documents produced by the complainants; we noticed that, it is not in dispute that, the complainants have booked the flat at a purchase price of Rs.2515 per sq. ft. and paid Rs.4.00 lakhs as an advance booking amount and continued to pay the remaining installments promptly. The OPs issued allotment letter dated 15-11-2005 for apartment Nos.702 (a) and (b) in block E at Adarsh Palm Retreat, Tower 4 having a total built up area of 958 sq. ft. for a consideration of Rs.25,76,848/- and a total built up area of 1312 sq. ft. for a consideration of Rs.37,29,061/-. It is also not in dispute that as per the request of the complainants for 4 bed room pent house in the year 2010, the OPs were allotted a flat No.1003 having 3635 sq. ft. super built up area on 10th floor of “Bougen Villa” Block F along with 1006 sq. ft. with two car parks to the complainants. It is also in not dispute that, the agreement of sale was executed on 23-12-2010 and registered sale deed was executed on 18-2-2017 in favour of the complainants.
9. Perused the contents of the complaint, evidence affidavit and documents, we noticed that the allegations of complainants is that, the OPs have not completed their project and handover the possession of the flats as promised in the sale agreement and hence the OPs are liable to pay Rs.2/- per sq. ft. area of the apartment per month as per the Clause 5 of the sale agreement dated 23-12-2010.
10. Perused the sale agreement Ex.C8, Clause 5 reveals that, “the OPs have agreed to deliver the apartment within 21 months from the date of signing of the agreement to sale with a grace period of three months i.e. the OPs have to handover the possession of the flat before 23-12-2012, against the prompt payment of balance sell price.”, Perused the document, it is noticed that the complainants have promptly paid the installments to the OPs and inspite of receiving of the consideration amount, there was no any construction works was started in the said project. Moreover in 2014 itself, the complainants have paid the total sale consideration towards apartment to the OPs. However, the OPs have not completed the project and hand over the apartment to the complainants and delayed the same by one or the other reasons. The OPs have handover the possession of the flat after lapse of 5 years and sale deed was executed on 18-12-2017. The complainants have produced some emails communications which reveals that the OPs have delayed the construction without giving any reasons. The OPs have contended that, the delay was not intentional; the delay was caused by the government agencies, sanction of plan, approval which was required. However, the OPs have not given the specific reason for the delay to hand over the possession of the flat. The complainant further alleged that, even though the OPs have given the possession of the flats, the OPs have not provided common amenities like Restaurant, Banquet hall, Badminton courts, Squash Courts, Tennis Courts, Children’s play area, Health Club, Library, Outdoor Swimming Pool, Indoor heated Swimming pool etc. and also not provided the occupancy certificate (OC) in respect of the project.
11. Per-contra, the OPs have contended that the common amenities would become accessible only when all apartment owners joined together for the contribution to maintain such of the amenities or common amenities. It is true that, it is difficult to maintain the common amenities, if all the flat owners are not occupied the flats. However, the OPs have collected the maintenance charges from the flat owners to maintain the same then it is their duty to provide all amenities and maintain the same, formed the association and hand over the assets to the association. However perused the documents there is no any documents was produced by the OPs that they have provided the common amenities to the flat owners after completion of the project and also not thrown light that after completion of the project, the OPs have formed the apartment owners association and handover the assets to them to maintain the common amenities.
12. Further the OPs contended that, once the registered sale deed was executed, right, title, interest, ownership, there arise seizure of the relationship of service provider and consumer. The complainants seize to be a consumer and the OPs seize to be a service provider. Perused the contents of complainants affidavit evidence and documents, we noticed that the OPs have executed the sale deed in 2017 in favour of the complainants and the complainants have booked the apartment in 2005. As per the agreement of sale dated 23-12-2010, Clause 5, the OPs have to handover the apartments before December, 2012 along with all amenities, occupancy certificate (OC) etc. However, the OPs handover the possession of the apartment after lapse of 5 years without amenities and occupancy certificate (OC), means still there is relationship between the complainant and OPs as a consumer and service provider and the OPs have violated the terms and conditions of the sale agreement which is deficiency of service on the part of the OPs. The agreement of sale is the initial promise of future transfer of property ownership. Hence, terms and conditions are binding on both parties. In the present case, the OPs have failed to construct and deliver the apartment to the complainants and after delay of 5 years from the promised date of possession handover the possession without occupancy certificate (OC) and amenities. The complainants have produced some citations are as hereunder;
- Wing Commander Airfur Rahman Khan and Aleya Sultana and others v. DLF Southern Homes Private Limited and others in (2020) 16 SCC 512
- Charu Sharma v. Reheja Developers Ltd. in 2022 SCC Online NCDRS 267
- NBCC (INDIA) Limited v. Shri Ram Trivedi in (2021) 5 SCC 273.
- DLF Home developers Limited (Earlier known as DLF Universal Ltd) and Another v. Capital Greens Flat Buyers Association others in (2021) 5 SCC 537
- Dr.Sukhbir Singh and Another v. BPTP Limited through its Directors in 2022 SCC online NCDRS 505.
- Ansal Crown Heights Flat Buyers Association (Regd) and others v. Ansal Crown Infrabuild Indian Pvt. Ltd and others in 2022 SCC online NCDRS 471 and
- Kamlesh Kumari and Another v. Ireo Grace Realtech Private limited and others in 2022 SCC online NCDRS 95.
We appreciate the same. Hence, considering the facts discussion made here, we are of the opinion that, the complainants are entitle for compensation as per the Clause 5 of the sale agreement i.e. Rs.2/- per sq. ft. per month from the date of agreement to sell i.e. 23-12-2010 to till the date of possession. Accordingly, the complaint is allowed in part.
13. Point No.3: In view of above discussion, we proceed to pass the following:-
O R D E R
The complaint is allowed in part with litigation cost of Rs.25,000/- to the complainant.
The OPs are directed to pay delay compensation of Rs.2/- per sq. ft. per month from the date of agreement to sell i.e. 23-12-2010 to till the date of possession as per the Clause 5 of the sale agreement to the complainants.
Further OPs are directed to pay compensation Rs.2,00,000-00 to the complainants for deficiency in service and mental agony.
Further the OPs are directed to comply the above order within 60 days from the date of receipt of this order. Failing which, the payable amount shall carry interest @6% p.a. from the date of default till realization.
Send a copy of this order to both parties.
MEMBER JUDICIAL MEMBER
Jrk/
