BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 06^th DAY OF JUNE 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainants through their GPA holder have filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OP) with a prayer to direct the OPs to hand over the Villa as early as possible and to pay a sum of Rs.3,15,000/- balance rent/delay compensation for delay in handing over the Villa as agreed and to pay compensation of Rs.5,00,000/-, to pay a sum of Rs.1,09,808/- towards interest @ 6% p.a on Rs.8,00,000/- paid towards construction agreement with costs of the proceedings.

2. The brief averments made in the complaint are as under:

The OP-1 is Proprietary concern and OP-2 is a Company registered under the companies Act, 1956 and both the Companies are sister concern companies and represented by one and the same person i.e., Mr.Sunil Baberwal.  OP-1 is engaged in construction of Villa and Apartments for the customers/clients/consumers of OP-2 and OP-2 is engaged in housing and real estate development activities in and around Bangalore.  The complainant intended to purchase a residential Villa and accordingly selected plot No.78 in the residential layout called “APNA AANGAN” situated at Rajapura Village, Jigani Hobli, Anekal Taluk, Bangalore Urban District measuring East to West 40 feet and North to South 30 feet, totally measuring 1200 square feets belonging to OP-2.  The OPs fixed the total consideration of the plot No.78 and villa measuring 1700 Sq. Ft. in the said plot at Rs.50,00,000/-.  That the complainants agreed to pay the total consideration of Rs.50,00,000/- to the OPs and booked the said villa on 05.03.2007 by paying an advance amount of Rs.1,00,000/- by way of cheque dated 05.03.2007 in favour of OPs.  OPs issued Villa booking form.  After duly filling the same the complainants have also entered into a agreement dated 04.05.2007 with OP-2 to purchase the said Villa situated in Plot No.78.  That the complainants entered into construction agreement dated 04.05.2007 for construction of Villa measuring 1700 Sq. Ft. super built up area on the said plot.  That the agreement to sell and construction agreement both dated 04.05.2007 are treated as part and parcel of one transaction and both agreements shall be complimentary to each other.  As per the construction agreement dated 04.05.2007 the complainants have paid total sum of Rs.8,00,000/- to OPs.1 & 2 towards advance consideration by way of cheques on different dates between 05.03.2007 to 04.05.2007.

That the complainants have paid advance consideration amount of Rs.8,00,000/- and thereafter on the basis of the said agreements they applied for loan of Rs.42,00,000/- in M/s.Sundaram Home Finance Limited.  The said financial institute sanctioned the said loan amount of Rs.42,00,000/- with interest @ 11.50%.  That on behalf of the complainants M/s.Sundaram Home Finance Ltd., disbursed/paid the balance consideration amount of Rs.42,00,000/- to OPs.  That the complainants adhered to the schedule payments as setout in the construction agreement dated 04.05.2007 and OP-2 executed a Deed of Absolute Sale in respect of the said plot in favour of complainants on 04.06.2007.  The OPs as per the terms of the construction agreement agreed to handover the Villa to the complainants on or before 15.09.2007 subject to the remaining terms and conditions of the agreement.  It was further agreed under the said construction agreement by the OP-1 that in the event of their being delay in handing over the Villa, OP-1 agreed to pay interest @ 6% p.a on the amounts paid under the construction agreement dated 04.05.2007.  OP-1 failed to handover the said Villa on or before 15.09.2007 as agreed.  Despite repeated requests, reminders, personal visits, letters etc., the OPs did not show any interest in handing over the said Villa with livable conditions, instead are trying to avoid and harassing the complainants.  The OPs have also failed to pay a sum of Rs.48,000/- p.a to the complainants towards interest @ 6% p.a on the agreement amount of Rs.8,00,000/- as agreed under the Construction Agreement dated 04.05.2007.  OPs failed to handover the possession of the said Villa to the complainants by 31.10.2009.  That on 22-10.2009 Mr.Sunil Baberwal the Proprietor of OP-1 and Managing Director of OP-2 sworn to an affidavit stating that the possession of the said Villa will be given to the complainants on or before 31.10.2009 and he would pay them a monthly rent of Rs.15,000/- per month for any delay in delivery of possession of the said Villa.  That even after swearing to such an affidavit the OPs failed to deliver possession of the Villa on or before 31.12.2009.  That in view of the delay in handing over the Villa the OPs have paid a sum of Rs.90,000/- to the complainant towards rent/delay compensation in respect of the said Villa for the period of January 2010 to June 2010.  That after receipt of Rs.90,000/- on 06.07.2010 the OPs have not paid any further amount to the complainants towards rent/delay compensation.  The complainants requested the OPs to hand over the Villa in livable condition as agreed by them for which the OPs undertook to deliver the Villa in the month of December 2010.

The OPs have failed to handover the Villa in the month of December 2010 and also failed to pay the balance rent/delay compensation of Rs.90,000/- for the period of July 2010 to December 2010.  GPA holder of complainant visited to inspect the Villa in the month of January 2011 and found that the construction work has not been completed even after lapse of more than 3 years from the agreed date i.e., 15.09.2007.  When the complainants insisted for handing over the Villa as well as the balance rent/delay compensation of Rs.90,000/- OPs agreed for the same and on 06.09.2011 OPs have paid a sum of Rs.15,000/- only towards rent/delay compensation and failed to pay the balance amount till today.  The complainants have suffered great financial loss apart from mental agony and inconvenience owing to inordinate delay in handing over the Villa by the OP.  The complainants during their visit to Bangalore in the month of December 2011 personally requested them to complete the work and hand over the Villa but the OPs have not bothered to handover the Villa till today.  Therefore, the complainants having no other alternative have chosen to file the present complaint for deficiency in service on the part of the OPs.

For the reasons stated above, the complainants pray for allowing the complaint as prayed for in the complaint.

3. In response to the notice issued, OPs entered their appearance through their advocate and filed their version contending in brief as under:

It is true that, the OPs have executed sale and construction agreement on 04.05.2007 in favour of the complainants.  That the complainants have paid a sum of Rs.8,00,000/- on various dates as mentioned in the complaint.  That the OPs have also received a sum of Rs.42,00,000/- as balance consideration towards the sale agreement from M/s.Sundaram Home Finance Ltd., on behalf of complainants.  That, the OPs have also executed a sale deed in respect of the site and Villa in possession on 07.06.2007.  That as per clause 6.1 of the construction agreement dated 04.05.2007 the OPs have agreed to give possession of the Villa to the complainants subject to obtaining various connections/clearances like electricity, water, sanitary and necessary licenses from statutory bodies/government bodies within the stipulated time as per the terms and conditions of the construction agreement.  The complainants have signed the construction agreement agreeing to the terms and conditions in clause 6.2 that BMRDA has issued sanction letter on 24.03.2006 to release the 60% of sites in favour of the OPs and for the remaining 40% of the sites were released by BMRDA by issuing completion certificate on 19.08.2011 which was issued only after completion of basic amenities such as water connection, electricity connection, sanitary facilities to all the villas after obtaining approval from the concerned authorities.  Therefore, the delay in handing over possession of the Villa was for the above stated reasons.  Therefore, the complainants are entitled to receive 6% of the delay amount from the OPs as provided in clause 6.6 of construction agreement with effect from 19.08.2011.  That the OPs have already paid a sum of Rs.1,05,000/- to the complainants as a good will gesture.  That the OP have given an affidavit dated 22.10.2009 agreeing to pay rent of Rs.15,000/- per month and hand over the villa on or before 31.12.2009 and if there is any delay thereafter they agreed to pay Rs.15,000/- per month for such delay.  The said fact was made due to the pressure of the complainants and not voluntary.  The delay in completion of construction of Villa was because the complainant themselves delayed selection of materials etc.  The complainants delayed in selecting colour to the Villa and in selecting materials of Kitchen shutter membrane etc.  Had the complainant selected materials at an early date without any delay the OPs would have finished the construction of villa on time.  That the said Villa is ready for occupation but the complainants themselves are not coming forward to take possession of the same.  There was no one to take possession of Villa as both the complainants are out of the country.  The authorized power of attorney of the complainants also failed to take possession of the villa.  Thus, the delay in handing over of the possession is due to complainants themselves.

That the OPs have invested a huge money in the construction of the villa and due to the delay caused by the complainants themselves the OPs have suffered loss of more than Rs.15,00,000/- whereas due to appreciation of prices in the properties the complainants have gained Rs.20,00,000/-.  There is steep increase in the prices of the cement, steel and other construction materials resulting in loss to the tune of more than Rs.15,00,000/- to the OPs.  The complainants are not entitled for any rent/delay compensation of Rs.9,24,808/- as prayed in the complaint.  There is no any deficiency on the part of OPs.  Therefore, the present complaint is not at all maintainable.

For the reasons stated above, OPs pray for dismissal of the complaint.

4. Subsequent to filing of the version, the complainants were called upon to submit their evidence by way of affidavit.  Accordingly the GPA holder of complainants filed his affidavit evidence in lieu of oral evidence reiterating the allegations made in the complaint and further refuting the allegations of delay on the part of the complainants. The OPs got filed the affidavit evidence of Mr.Sunil Baberwal S/o Biharilal Baberwal.  The said Mr.Sunil Baberwal reiterated the allegations made in the version.  The complainants have filed their written arguments.  Both the parties have filed certain photographs of the Villa in question.  The GPA holder of complainants also filed another affidavit regarding the status of the Villa in respect of the memo filed by OPs stating that the Villa is ready of occupation.    

5. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both parties, documents including photographs produced by both sides, written arguments submitted by the complainants and other materials placed on record.

7. Our answer to the above issues are as under:

REASONS

8.  Admittedly the complainants who are currently working at California, USA purchased a residential Villa in plot No.78 in a residential layout developed by OPs called as “APNA AANGAN” situated at Rajapura Village, Jigani Hobli, Anekal Taluk, Bangalore Urban District measuring East to West 40 and North to South 30 feets totally measuring 1200 square feets.  It is also not in dispute that, the total consideration for the said villa including the site was fixed at Rs.50,00,000/- and the complainant agreed to pay the said amount of Rs.50,00,000/-.  As per the terms of the booking form of Villa, the complainants have paid a sum of Rs.1,00,000/- as advance amount on 05.03.2007 by way of cheque.  Receipt for payment of said sum of Rs.1,00,000/- is produced.  Subsequently the complainants have paid a sum of Rs.4,00,000/- on 05.04.2007, Rs.1,40,000/- on 04.05.2007, Rs.1,60,000/- on 04.05.2007 by way of cheques and thus they have paid a total sum of Rs.8,00,000/- to the OPs, which is admitted by the OPs.  The relevant receipts for having paid the said amount are also produced.  The construction agreement dated 04.05.2007 entered between OPs and complainant’s is admitted by the OPs and copy of the same is also produced.  The OPs also admits the execution of absolute sale deed in respect of plot no.78 situated in the said layout “Apna Aangan’ in favour of the complainants.  Both the parties have admitted to the terms and conditions mentioned in the construction agreement on the basis of construction agreement.  The complainants have applied for loan of Rs.42,00,000/- from M/s.Sundaram Home Finance Ltd., and the financial institution has sanctioned the said loan of Rs.42,00,000/- and thereafter the said sum of Rs.42,00,000/- has been paid by M/s.Sundaram Home Finance Ltd., to the OPs.  Thus, the complainants have paid the entire consideration amount of Rs.50,00,000/- to the OPs in terms of the construction agreement.

9. As per clause 6.1 of the construction agreement dated 04.05.2007 entered into between the OPs and the complainants the OPs have agreed to deliver the possession of the said Villa on or before 15^th September 2007 subject to compliance of payment schedule by the complainants.  However as per clause 6.6 of the said construction agreement the OPs have agreed to pay interest @ 6% p.a on the amounts paid under the agreement for any delay in delivery of possession of the Villa to the complainants.  Admittedly the OPs have failed to deliver the possession of the said Villa to the complainants on or before 15^th September 2007 as provided in clause 6.1 of the construction agreement.  As already stated above, the complainants have made payment of the entire consideration amount as per the schedule mentioned in the construction agreement.  The OPs also admits the payment of entire consideration by the complainants on time and in terms of the construction agreement.  However, it is apparent that, the OPs have failed to adhere to the terms and conditions of the construction agreement and deliver possession of the said Villa to the complainants on or before 15^th September 2007.  The OPs failed to provide any plausible explanation for their failure to hand over the possession of the Villa to the complainants on or before 15^th September 2007.

10. The complainants alleged that, the OPs without there being any valid reasons delayed the completion of the construction work and thereby put them to great inconvenience, hardship and mental agony.  The GPA holder of the complainants is a resident of Chennai and was to visit Bangalore frequently to follow up the construction work by the OPs.  For no fault of him, the GPA holder of the complainant was made to visit Bangalore very frequently to follow up the construction work and its completion.  When the complainants insisted for early completion of the work and for handing over the possession of the said Villa the OPs who were directly responsible for the delay submitted an affidavit on 22.10.2009.  In the said affidavit given by Sunil Baberwal he admits that he had agreed to give possession of the said Villa by 31.10.2009 but due to certain unavoidable circumstances could not complete the house and hand over possession.  He further states that, he would hand over the possession of the said house on or before 31.12.2009 to the complainants and in default he would pay to the complainants monthly rent of Rs.15,000/- till delivery of possession.  OPs in their version admit the contents of the said affidavit.  Further OPs have also acted upon the said affidavit and have paid rent/delay compensation of Rs.90,000/- to the complainant on 06.07.2010 for the period of January 2010 to July 2010.  The OPs further have also paid a sum of Rs.15,000/- on 06.09.2011 towards rent/delay compensation for the month of August 2010.  The OPs in their version as well as in the affidavit admits the payment of above mentioned amount towards rent/delay compensation to the complainants in terms of the affidavit dated 22.10.2009 for the delay committed by them in completing the construction and delivering possession of the said Villa to the complainants.  However, the OPs thereafter have failed to pay the rent/delay compensation for the remaining period till filing of the complaint and thereafter.  Admittedly till today the OPs have failed to deliver the possession of the said Villa to the complainants.

11. It is alleged by the OPs that, the delay in completion of construction work was because of the delay on the part of the complainant in selecting the colour and other materials etc.  However, the e-mail communication between the complainants and the OPs discloses that absolutely there is no delay on the part of the complainants either in selection of the colour or other materials.  The OPs also did not produce any material to believe that there was any delay on the part of the complainants in regarding selection of colour and other materials.  If at all this were to be the reason for delay the same should have been found place in the affidavit dated 22.10.2009.  At no point of time, the OPs have sent any e-mail or any letter etc., stating that the delay in completion of the construction work of the Villa was due to any delay on the part of the complainant in selection of the colour, kitchen material etc.  Thus, it is apparent that the OPs are now trying to put the blame on the complainant for the delay in completion of construction work.  We don’t find any material on record to indicate that the complainants in any way are responsible for the delay in completion of the construction of Villa.  In fact the construction of Villa was completed to the extent of 75% on the date of construction agreement dated 04.05.2007.  For the said reason only the OPs have agreed to complete the construction work and handover possession of the Villa to the complainants by 15^th September 2007.  The OPs failed to deliver the possession of the said Villa to the complainants either in terms of the construction agreement or in terms of affidavit dated 22.10.2009.  There is in ordinate delay on the part of the OPs in delivering the possession of the Villa to the complainants.  OP themselves are responsible for the said delay and they are liable to pay rent/delay compensation to the complainants as agreed by them in the affidavit dated 22.10.2009.

12. The OPs on 10.01.2014 filed a memo along with certain photographs of said Villa stating that the said villa is complete in all respects and they are ready to hand over the keys of the same to the complainants.  After filing of the said memo, it appears that, our learned predecessor in office asked the complainant to visit the Villa and ascertain as to whether the Villa is completed in all respect and is ready for occupation.  Accordingly, the GPA holder of the complainant visited the said Villa and thereafter filed his affidavit together with photographs stating that the said Villa is not yet ready for occupation and many works are yet to be attended too.  The GPA holder of complainant filed his affidavit mentioning the details of the incomplete work with support of several photographs.  The OPs did not deny the allegations made in the said affidavit nor countered the statement made by the complainant by furnishing any material.  Thus, it is apparent that the OPs knowing fully well that the villa is not fit for occupation filed a false memo stating that the construction work is completed and they are ready to hand over the keys of the Villa to the complainants.

13. The above mentioned conduct of the OPs certainly amounts to grave deficiency of service.  The inordinate delay of more than 8 years in handing over the possession of the Villa to the complainants must have caused great inconvenience, hardship and mental agony to the complainants.  More over the OPs also did not adhere to the affidavit filed by them and paid rent/delay compensation to the complainants except for a period of 7 months.  Therefore, we are of the opinion that, the OPs have to be directed to complete the construction of the Villa within 6 weeks and hand over the possession of the same to the complainants by making it fit for occupation and also pay rent/delay compensation at the rate of Rs.15,000/- per month from July 2009 till the date of delivery of possession.  Further, the OPs have to be directed to pay compensation of Rs.1,00,000/- to the complainants for having caused them great hardship, inconvenience and mental agony together with litigation cost of Rs.5,000/-.

14. The order could not be passed within the stipulated time due to heavy pendency. 

15. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainants U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are directed to complete the construction of the Villa within 6 weeks and hand over the possession of the same to the complainants and also pay rent/delay compensation at the rate of Rs.15,000/- per month from July 2009 till the date of delivery of possession.  Further OPs are directed to pay compensation of Rs.1,00,000/- to the complainants for having caused them great hardship, inconvenience and mental agony together with litigation cost of Rs.5,000/-.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 06^th day of June 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 24.02.2014 & 19.09.2014.

1. Sri.S.Govindasamy.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party/s dated 27.02.2013.

1. Sri.Sunil Babarwal.  

Document produced by the Opposite parties:

MEMBER                            MEMBER                    PRESIDENT

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