<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL <br /> FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 31st OCTOBER 2008<br /> <br /> <br /> PRESENT:- SRI.A.M.BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NOs.2120/2008, 2121/2008, 2122/2008, 2123/2008 & 2124/2008.<br /> <br /> <br /> COMPLAINT NO.2120/2008COMPLAINANTSCOMPLAINT NO.2121/2008COMPLAINANTCOMPLAINT NO.2122/2008COMPLAINANTCOMPLAINT NO.2123/2008COMPLAINANTSCOMPLAINT NO.2124/2008COMPLAINANTS 1. Sri.P.Pounraj,S/o Paramasivam,Aged about 38 years.2. Smt.P.Rathika,W/o P.Pounraj,Aged about 30 years.Both are residing at A-503, Ambience Diva,No.14/15, Ambalipura Village,Varthur Hobli,Bellandur Gate,Sarjapura Main Road,Bangalore.Mr.Shashank Shukla,S/o Rajendra Kumar Shukla,Aged about 33 years,Residing at # C-310,14/15, Ambalipura Village,Varthur Hobli,Sarjapur Main Road,Bangalore.Mrs.Veeda K.D’Souza,W/o Sri.Donald B.D’souza,Aged about 51 years,Residing at # 201, Ashirwad Apartments,Austin Town,Bangalore - 560 047.1. Mr.Partha Mukherjee,S/o Late Dipak Mukherjee,Aged about 38 years.2.Mrs. Pinky Mukherjee,W/o Partha Mukherjee,Aged about 34 years.Both residing at apartment No.409, IV Floor,‘Ambience Diva’, # 14/15, Amblipura Village,Opp. Springfields Apartments,Varthur Hobli,Sarjapura Road,Bangalore.1. Dr.Rajiv Aggarwal,S/o Ram Kishan Aggarwal,Aged about 41 years.2. Mrs.Reema Aggarwal,W/o Dr.Rajiv Aggarwal,Aged about 39 years.Both residing at # A 303, III Floor,‘Ambience Diva’, # 14/15, Amblipura Village,Opp. Springfields Apartments,Varthur Hobli, Sarjapura Road,Bangalore.Advocate– Sri.S.Shaker Shetty<br /> OPPOSITE PARTIES V/s1) M/s. Ambience Projects,A registered partnership firm having its office at # 91, 60 feet Road,VI Block, Koramangala,Bangalore – 560 095.By its Managing Partner.2. Himanshu Shah3. Khemraj4. Girish Kothari5. Lalit JainAge and fathers name of opponents 2 to 5 not known to the complainant. All are at # 91, 60 feet road,VI Block, Koramangala,Bangalore – 560 095.<br /> <br /> O R D E R<br /> <br /> These are the five complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to provide all the basic amenities, facilities as promised under the construction agreement and pay penalty and a compensation of Rs.5,00,000/- and for such other relief’s on an allegations of deficiency in service. <br /> <br /> <br /> As the opposite parties in all the complaints are common, the question involved, relief claimed being the same, in the interest of justice, in order to avoid repetition of facts and multiciplity of reasoning, these five cases stand disposed of by this common order.<br /> The brief averments, as could be seen from the contents of the complaints, are as under:<br /> 2. Each one of these complainants purchased the flat from OP in their project ‘AMBIENCE DIVA’. The detail of flat number, construction agreement, date of sale deed, penalty payable, penalty claimed and legal notice is given in a chart below for the sake of convenience to avoid the repetition.<br /> <br /> Sl No. Complaint No. Flat No. Construction agreement Date of Sale deed Penalty payable from Penalty claimed Legal Notice<br /> 1) 2120/08 503 13.04.2005 21.01.08 04.02.07 Rs.206805/- 26.01.08<br /> 2) 2121/08 310 16.09.2005 24.03.07 04.01.07 Rs.170000/- 26.01.08<br /> 3) 2122/08 307 11.05.2006 24.03.07 04.04.07 Rs.235500/- 26.01.08<br /> 4) 2123/08 409 13.04.2005 09.08.07 04.02.07 Rs.107920/- 26.01.08<br /> 5) 2124/08 303 03.10.2005 24.02.07 04.02.07 Rs.194640/- 26.01.08<br /> <br /> It is the contention of each one of these complainants that they being lured away with the advertisement and propaganda issued by the OP who claims to be the builders and promoters of multistoried flat in and around Bangalore thought of purchasing the flat of their choice and paid the lump sum amount as claimed by the OP. Though OP allotted them the flat and executed the sale deed including the construction agreement but thereafter some how failed to provide the basic amenities and facilities as promised under the brochure as well as the construction agreement. OP undertook to pay the penalty in default of non-compliance of the terms and conditions of the construction agreement but failed to adhere to the said promise. For no fault of these complainants they were made to suffer both mental agony and financial loss. When their repeated requests and demands went in futile they got issued the legal notice. Again there was no response. Though OP promised to complete the said construction within 22 months and provide all the basic amenities, facilities with a perfect construction but failed to keep up its promise. Complainants were forced to invoke the penalty provision noted in the construction agreement and made demand. Again there was no response. Hence complainants felt deficiency in service and unfair trade practice on the part of the OP. Under such circumstances they are advised to file these complaints and sought for the reliefs accordingly.<br /> <br /> <br /> 3. On admission and registration of the complaint, notices were sent to the OP. Though OP was duly served with the notice remained absent without any sufficient reason or cause. The absence of the OP does not appear to be as bona fide and reasonable. Hence OP are placed Ex-parte.<br /> <br /> <br /> 4. In order to substantiate the complaint averments, each one of these complainants have filed their respective affidavit evidence and produced their documents. OP didn’t participate in the proceedings. Then the arguments were heard.<br /> 5. It is the case of complainants that they being lured away with the advertisement and propaganda issued by the OP who claims to be the developers and builders of multistoried residential flats in and around Bangalore thought of purchasing a flat of their choice in the project ‘AMBIENCE DIVA’. The fact that they paid the entire flat value as claimed by the OP and thereafter OP executed the registered sale deed in their favour with respect to the respective flats as noted in the chart mentioned above is not at dispute. It is also not at dispute that OP executed a construction agreement referred to in the chart with respect to each one of these complainants. The fact that OP promised to complete the said project with best construction providing all the basic amenities and facilities within 22 months from the date of agreement is also not at dispute.<br /> <br /> 6. The evidence of these complainants finds full corroboration with the contents of the undisputed documents. There is nothing to discard their sworn testimony. It is a quality of evidence that is more important than that of the quantity. As it is there is no personal ill will or grudge between the complainant and the OP. Though OP collected huge amount with respect to the said flats referred to above, it appears OP failed to provide the basic amenities and facilities as promised under the construction agreement even till today. The photographs and other documents produced by the complainants goes to show that the construction is not up to the mark, nor it is inconsonance with the terms and conditions incorporated under the construction agreement. Under such circumstances naturally though each one of these complainants have invested their huge hard earned money they are unable to reap the fruits of their investment. Naturally they must have suffered both mental agony and financial loss.<br /> <br /> 7. The allegations of the complainants that there is a poor plumbing, damaged drainage facilities, water seepage, defective electrical wire, non completion of the club house, garden, children’s play area, swimming pool, landscaping are the few examples shown by the complainants with regard to non completion of the project as promised under the sale deed as well as construction agreement. We are satisfied that complainants are able to prove the deficiency in service on the part of the OP. When that is so, they are naturally entitled for certain relief.<br /> <br /> 8. The construction agreement terms and conditions and the clause mentioned there in specifically discloses that if OP is failed to complete the said construction as per the terms of construction agreement well within the stipulated time OP is liable to pay the penalty at the rate of Rs.5/- per square feet of super built-up area with respect to the individual flat. That is the amount the complainants have claimed by way of penalty from the respective dates. The non appearance of the OP even after the due service of the notice leads us to draw an inference that OP admits all the allegations made by the complainants in their complaints. When there is a penalty clause in the construction agreement naturally OP is bound to follow the said terms and conditions. Viewed from any angle having taken note of the facts and circumstances of the case in the interest of justice we find these are the fit cases wherein complainant deserves the relief as claimed to some extent. With these reasons we proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> Complaints are allowed.<br /> <br /> 1) In complaint No.2120/2008, OP are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 13.04.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OP is directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded.<br /> <br /> 2) In complaint No.2121/2008, OP are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 16.09.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OP is directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded.<br /> <br /> 3) In complaint No.2122/2008, OP are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 11.05.2006 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OP is directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded.<br /> <br /> 4) In complaint No.2123/2008, OP are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 13.04.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OP is directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded.<br /> <br /> 5) In complaint No.2124/2008, OP are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 03.10.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OP is directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded.<br /> <br /> <br /> This original order shall be kept in the file of the complaint No.2120/2008 and a copy of it shall be placed in other respective files.<br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 31st day of October 2008.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> V.l.n* <br /> <br /> <br /> <br /> <br /> <br /> <br />