BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

(ADDL. BENCH)

DATED THIS THE 13^th DAY OF JULY 2022

PRESENT

MR. RAVISHANKAR                           : JUDICIAL MEMBER

MRS. SUNITA CHANNABASAPPA BAGEWADI :      MEMBER

CONSUMER COMPLAINT NO. 611/2019

V/s

ORDER

MRS. SUNITA CHANNABASAPPA BAGEWADI, MEMBER

1.      This is a complaint filed by the complainant alleging deficiency in service on the part of the Opposite Parties and prays to direct the Opposite Parties to pay Rs.46,42,759/- with interest at 18% p.a. from the respective date of payment along with Rs.3,00,000/- as compensation and Rs.35,000/- as costs of litigation.

2.      The averments in the complaint are as hereunder;

It is the case of the complainants that the Opposite Party Nos. 1 to 3 are developers and Opposite Party Nos. 4 & 5 are the landowners who converted the land bearing Survey No.34, currently bearing Katha No.5 situated at Geddalahalli Village, Horamavu Ward, Bangalore East Taluk in all measuring 53,985/- sq.ft.  with an intention to develop a residential project consisting of multistoried building under the name and style of “Chowriappa Constellation” and entered into a Joint Development Agreement dt.29.11.2010.  The complainants approached the Opposite Parties and booked one Flat bearing No.1105 in 11^th Floor with a super built up area of 1748 sq.ft. and entered into an Agreement of Sale dt.24.01.2018 for a total sale consideration of Rs.1,06,13,799/- and the complainants have totally paid Rs.46,42,759/- through cheque on different dates and acknowledge the receipt of the same.  The complainants further alleged Inspite of the waiting for long time, the Opposite Parties have not completed the construction and they have stopped developmental activities and given evasive reply.  Hence, the complainants issued legal notice dt.11.10.2019 to the Opposite Parties to refund the amount paid, but, the same was unclaimed.  Hence, the complaint.

3.      After service of notice, Opposite Party Nos. 1 to 3 absent, hence, placed exparte.  Opposite Party Nos. 4 & 5 appeared and filed version.  The Opposite Parties 4 & 5 contended that they are the landowners and also husband and wife.  In their version they have admitted some of the allegations of the complainants and denied other allegations.  They further admitted that the Joint Development Agreement executed between them on 29.11.2010 which was a registered document and also admitted General Power of Attorney dt.29.11.2010 in favour of landlords which was also registered.  The Opposite Party Nos. 4 & 5 admitted the payments made by the complainants.  Further contended that the Opposite Parties have provided all requisite copies of title documents to the complainant and after verification, the complainants visited the property and after fully satisfied with the same they have agreed to purchase the flat.  The Opposite Party Nos. 4 & 5 further contended that the complainant paid only initial amount for flat and failed to pay the balance sale consideration amount of Rs.59,71,050/- and vilated the clasue 4 (3) of the Sale Agreement.  Further contended that the building plan was approved by BBMP and also issued commencement certificate, the developer also purchased TDR (Transfer of Development Right Certificate) dt.02.01.2013 and 18.01.2014 from BBMP and also applied for 13^th and 14^th floors.  The copy of the TDR certificates, intimation letter dt.13.06.2019 & 31.06.2016 obtained revised plan and proposed sanctioned plan issued by BBMP.  Further the Opposite Party Nos. 4 & 5 contended that clause-4 of the Agreement of Sale, the date of possession will be on or before 31.07.2018 and if the builder fails to handover the flat in a specified date, then the purchaser liquidated damages to be calculated at the rate of Rs.10/- per sq.ft. of saleable area per month payable by the builder till the date of handover the possession.  The clause IV(4) reads as follows;

4(c)    The date stipulated for delivery of the apartment is subject to variation on account of force majeure or Act of God or Government orders/ restrictions/ controls and other reasons which are beyond the control of the builder.  The builder will make all the effort to obtain electrical, sanitary and the water connections on the stipulated time.  The seller shall not be responsible for delay in obtaining such connections from statutory authorities.

Further contended that due to negligence of developer there was delay in obtaining statutory approvals from the concerned authorities.  Moreover without any allegations, the complainants have made as a party to this proceeding.  The Opposite Parties further contended that they have never refused to execute the sale deed in favour of the complainants even today also willing to execute the sale deed in favour of the complainant or alternatively ready to pay the amount which was paid by the complainants as per sale agreement dt.24.01.2018, but, the complainants avoid the same.  Further, the construction of the building was completed during 2018 and 10 apartments which were duly occupied by the purchasers, but, since the developer intend to put up additional two floors by obtaining revised sanctioned plan and there are some obligations that are to be complied by the developer for release of revised sanctioned plan by BBMP, hence, there was some delay in compliance and prayed to dismiss the complaint against the Opposite Party Nos. 4 & 5.

4.      The complainants have filed affidavit evidence and marked documents at Ex. C-1 to C-9(b).  The Opposite Party Nos. 4 & 5 file affidavit evidence, but, not marked any documents.  Heard the arguments of both counsels.

5.      On perusal, the following points will arise for our consideration;

(i)       Whether the complaint is deserves to be allowed?

            (ii)      What order?

          6.      The findings to the above points are;

                   (i)       Partly Affirmative

                   (ii)      As per final order

REASONS

7.      Perused the contents of the complaint, objections of the Opposite Party Nos. 4 & 5 affidavit evidence of both parties and documents produced by the both parties, the Opposite Party Nos. 4 & 5 are the landowners and they have admitted the Joint Development Agreement and also General Power of Attorney dt.29.11.2010 and also admitted the initial payment made by the complainant towards the flat No.1105 in 11^th floor, super built up area of 1748 sq.ft. with car parking and contended that the complainant has failed to pay the balance sale consideration amount of Rs.59,71,040/- and violated the clause IV(3) of the Sale Agreement.  On Perusal of the Sale Agreement and the Clause - IV(3), we noticed that the balance amount of Rs.86,91,040/- will be paid step by step by the complainant after completing the work.  However, it is evident that the complainant has paid totally a sum of Rs.46,42,759/- and balance was Rs.59,71,040/- which is admitted by the Opposite Parties.  As per clause No.IV(3) of the Sale Agreement & as per payment made by the complainants, the Opposite Parties have to complete the work upto 9^th slab, but, as per the allegations of the complainants, the Opposite Parties have not completed the work and also Opposite Parties have not produced the documents to prove that the Opposite Parties commenced the work as per Clause – IV(3) of the Sale Agreement.   Hence, the contention of Opposite Parties that complainants have violated the terms and conditions of Clause – IV(3) of the Sale Agreement cannot be believable  and acceptable.  Inspite of receiving initial amount of Rs.46,42,759/-, the Opposite Parties not commenced the construction as per clause IV(3).  Moreover, the flat purchasers can be expected to keep on paying more money to developers if the flat purchasers find that developer is not in a position to complete the construction within stipulated time as per Sale Agreement.  Hence, the complainant decided to terminate the sale agreement and demanded for refund of money.  Further, the Opposite Party Nos. 4 & 5 contended that building plan was approved by BBMP and also issued commencement certificate and developer also had produced TDR dt.02.01.2013 and 18.01.2014 from BBMP and also applied for 13^th & 14^th floor revised plan.

8.      Perused the documents produced by the Opposite Party Nos. 4 & 5 along with version.  We noticed that the Opposite Parties have obtained Commencement Certificate and also TDR dt.01.01.2013 and 18.01.2014 from BBMP and also applied for 13^th & 14^th floor revised plan.  Hence, the contention of Opposite Party Nos. 4 & 5 is true and believable.  They further contended that the complainants are aware of the fact that 13^th & 14^th floor shall be put by the developer and due to negligence of the developer, there was delay in obtaining statutory approvals from the concerned authorities and not due to the negligence of the Opposite Party Nos.4 & 5.  Perused the Sale Agreement and Clause – IV(4), we noticed that the date of possession will be on or before 31.07.2018 and if the builder fails to handover the flat in a satisfied date, then the purchasers liquidated damages to be calculated at the rate of Rs.10/- per sq.ft of saleable area per month payable by the builder till the date of handover the possession.  Hence, as per the Clause-IV(4) of Sale Agreement, it is the duty of the developer to handover the possession of the flat on or before 31.07.2018.  Hence, for delay developer has to pay the compensation to the purchaser.  Hence, the contention of the Opposite Party Nos. 4 & 5 is true.

9.      Anyhow Opposite Party Nos. 4 & 5 admitted in their objection and affidavit evidence that they have never refused to execute the Sale Deed even today in favour of the complainants or in the alternative also ready to refund the advance sale consideration amount after making necessary deduction as per Clause-5 of the Sale Agreement dt.24.01.2018.  However, the builder cannot bind flat purchasers with one sided contractual terms and conditions.  The terms and conditions are one sided which are provided primarily to safeguard the interest of the developers always builders are placing them on higher amount, hence, it was not binding on the complainants.

10.    Perused the order sheet, we noticed that on 18.02.2022 the Opposite Parties submitted that they are ready to register the Sale Deed even today.  However, till today they have not executed the Sale Deed in favour of the complainant even though the matter was referred by this Commission to Lok Adalath for settlement.  The Opposite Parties have not settled the matter only they have dragging the matter to seek time. Hence, in our opinion after receiving the initial amount per flat, the Opposite Parties have not constructed the flat and handover to the complainants on or before July 2018 and also not refunded the amount amounts to deficiency in service on the part of the Opposite Parties.  Hence, the complainants are entitled for refund of the amount paid by them along with interest and compensation. 

11.    In the course of arguments, the Opposite Parties and complainants are stucked only on GST.  As per complainants GST has to be paid by Opposite Parties and as per Opposite Parties the GST has to be paid by complainants.  However, there is no any pleading regarding GST, hence, we cannot consider the same in the arguments.  Considering the facts and discussion made here, we are of the opinion that the complainants have proved deficiency in service on the part of the Opposite Parties.  Hence, the following;

ORDER

The complaint is allowed.

The Opposite Parties jointly and severally are directed to refund a sum of Rs.46,42,759/- to the complainant along with interest at 12% p.a. from the date of last payment, till realization.

The Opposite Parties are further directed to pay a sum of Rs.2,00,000/- as compensation and Rs.25,000/- towards costs of litigation to the complainant.

The Opposite Parties are granted 60 days time from this date to comply the order.

Forward free copies to both the parties. 

      Sd/-                                                             Sd/-

MEMBER                                           JUDICIAL MEMBER

KCS*