Date of Filing: 23/07/2011

        Date of Order: 14/09/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated: 14^th DAY OF SEPTEMBER 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 1358 OF 2011

Mrs. Vasumathi Singhvi & Mr. Umed Raj Singhvi

# G-3/102, Srinidhi Niwas,

Chickalsandra,

BANGALORE-61.

(Rep. by In-person)                                                                  Complainant.

-V/s-

M/s. DLF Southern Homes Pvt. Ltd.,

1^st Floor, Thaper Niketan,

7/4, Brunton Road, Bangalore-25.

Rep. by Head Marketing.

(Rep. by Advocate Sri.M.S. Raghavendra Prasad)                     Opposite party.

BY SRI.H.V.RAMACHANDRA RAO, PRESIDENT

ORDER

The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking direction to the opposite party to pay a sum of Rs.6,28,131/- with interest, are necessary:-

The complainants are the wife and husband who made an application for apartment No. NWC 1032, having super area of 1360 square feet with a car parking space for total consideration of Rs.28,59,000/- and paid an advance of Rs.3,00,000/- at the time of booking on 14.03.2009.  The complainants wanted to book another flat for their daughter in Tower NWA at 14^th floor No.1401 and the opposite party informed the complainant that they have applied to competent authority for permission to construct towers beyond four floors and assured to offer Apartment in Tower NWA 1401 in priority to others, at the rates applicable on the date of bookings after having approval to construct above four floor and identified the said booking in the second stage and named NWA 2 1401.  At the time of booking it was a period of recession in the construction industry.  The opposite party with intent to have funds in advance, offered a rebate for early payment @ 13% per annum, subject to change from time to time.  Opposite party in attempt to get early payment justified rebate @ 13% per annum to be calculated on the end of financial year i.e., March every year to give the effects of compounding interest, known in the common business parlance against the Bank interest of more than 12% per annum compounded.  The opposite party also offered a rebate of Rs.100/- per square feet.  On failure to give Early Payment Rebate up to 31.03.2010 by opposite party, the complainant demanded the rebate of Rs.101,120/- by the letter dated: 20.12.2010.  The complainant also met the opposite party in person and also about the status of the preemptive right of the complainant over Apartment in Tower NWA 1401, the opposite party was evading.  The complainant wrote another letter on 19.03.2011 in this regard.  The opposite party issued another notice 04.06.2011.  The opposite party replied on 10.06.2011.  As not satisfied with the said reply the complainant questioned about the rate of interest to the opposite party on 14.06.2011 and also visited the opposite party on 18.06.2011 and met Ms. Kavya Lakshmi who took her to Sri. Shashi Shekar who was rigid to their reply.  Hence the complaint.  

2.        In brief the version of the opposite party are:-

            The complainant has purposefully omitted to produce the “Apartment Buyer’s Agreement” entered in to between the parties but filed only the Application Form.  The complaint is bad for non-joinder of necessary parties since M/s. Annabel Builders and Developers Private Limited who are the parties to the agreement should have been impleaded as a party.  This is a claim for money on disputed questions of facts which has to be adjudicated before the Civil Court and not before this Forum.  Hence this Forum is no jurisdiction to entertain the complaint.  The complainant has not come to this forum with clean hands and is trying to get an additional apartment allotted by seeking to apportion money that they are not entitled to that at a rate per square foot prevalent 3 years back.  The opposite party is in the process of developing a residential enclave named “Westend Heights @ DLF, BTM Extn” Bangalore, comprising of 1800 apartments on the land owned by M/s. Annabel Builders & Developers Private Limited.  The complainants approached the opposite party and applied for allotment of an apartment bearing No.02 in Block C-1, 3^rd Floor vide an application form dated: 14.03.2009 and accepted all the terms and conditions therein.  The complainant was given an identification number to the said apartment as “NWC1032”.  The said project was approved by the concerned authorities for a Stilt floor and four upper floors only.  At the relevant point of time the opposite party had applied to the authorities for approval of additional floors up to 18 floors and it has been disclosed in the application form also.  The complainants have applied for an apartment on 14.03.2009 on the 3^rd Floor and also made an application for an alternative apartment on the 14^th Floor that may be constructed, and be considered for allotment against the complainants application.  The complainants have sought an alternative apartment if and when permission to build higher floor is granted in lieu of an apartment requested for 3^rd floor.  It is clearly mentioned that the alternate apartment may be considered for allotment on fresh terms and conditions including price.  It was not a commitment.  The granting of alternative apartment is in the discussion of the opposite party.  Subsequently on 10.07.2009 an Apartment Buyer’s Agreement was entered in to between the complainants, the opposite party and M/s. Annabel Builders and Developers Private Limited, which is the Land Holding Company.  The Clause-1.4 may be read in this regard.  Early Payment Rebate (EPR) is in accordance with Clause-1.4.  The opposite party had granted 13% Early Payment Rebate per annum and now EPR is 10% per annum for payments received on 13.03.2010.  This is again subject to change as and when the project progresses.  The complainant is trying to make alternative accommodation as additional accommodation and has filed this complaint collecting EPR at his whims and fancy and seeking adjustment of the same to the alternative accommodation.  All the allegations to the contrary are denied.

3.        To substantiate their respective cases, the complainant has stated that his compliant and documents be read as his evidence and filed written arguments and additional written arguments.  The opposite party has filed his affidavit.  The arguments were heard. 

4.        The points that arise for our consideration are:-

1. Whether the complaint is bad for non-joinder of necessary party?
2. Whether alternate apartment means additional accommodation?
3. Whether the calculation of EPR by the opposite party is wrong?
4. What order?

5.        Our findings on the above points are:-

            Point (A):In the Positive

Point (B) & (C):In the Negative

Point (D):As per the final order

For the following:-

REASONS

POINT (A) to (C):-

6.        Reading the pleadings in conjunction with the affidavit of the opposite party and the documents of both the parties it is an admitted fact that the complainant has made an application form for allotment of a flat to be constructed by the opposite party and paid an advance of Rs.3,00,000/- on 14.03.2009.  At that time the opposite party had approval for construction of a Stilt Floor and four upper floors only.  The complainant was allotted apartment No.2 in Block C-1, 3^rd Floor, since that was approved by the competent authorities.  It is also an admitted fact that the opposite party had made an application with the concerned authority for permission to construct additional floors i.e., up to 18 floors i.e., 14 floor in addition to the existing floors.

7.        The complainant knowing about the opposite party making an application for a construction of the higher floors and the matter is pending made an application on 14.03.2009 itself stating that in case the other floors are constructed he may be allotted an alternative apartment in the 14^th floor.  Clause-14 of the application produced by the complainant reads thus:-

“If the Applicant conveys his desire to shift to a higher floor, the same may be permitted by the Company at its sole discretion.  Accordingly, this Application and the subsequent Agreement shall stand modified to that extent.  It is clarified that if the Company does not permit the Applicant to move to the higher floor, the Applicant shall have no right to raise any objection.  The applicant agrees that no further consent of the Applicant shall be required by the Company for carrying any/all of the above mentioned changes.  The Applicant is fully aware that the plans of the Said Complex are not yet sanctioned by the Government Authorities.”

That is to say this is an alternative accommodation that is agreed not an additional accommodation.  Even granting alternative accommodation is in the discretion of the opposite party.  If the discretion is exercised in not granting alternative accommodation, in shifting it to the higher floor the complainant cannot have a right or any objection stating that he shall be given the alternative accommodation or an additional accommodation.  Here the opposite party has not given any right of presemption to the complainant to have another flat in the 14^th floor.

8.        The complainant had not applied for any flat in the 14^th floor nor paid any consideration for the 14^th floor apartment.  The complainant had paid advance and other amounts to the apartment at the 3^rd floor which has been allotted to him.  There is no dispute about the said third floor apartment.  Now the complainant’s case is that he wanted additional apartment at the 14^th floor, this has not been agreed to between the parties nor any consideration is paid by the complainant for an additional apartment.  Taking the clause for alternative accommodation the complainant cannot claim as an additional apartment.  Such claim is untenable.  There is no such agreement between the parties in this regard.  Alternate means alternate, additional means additional.  The complainant is confusing the alternate accommodation as additional accommodation which is not agreed to between the parties.

9.        Further it is also an admitted fact that an “Apartment Buyer’s Agreement” was entered in to between the complainant, the opposite party and M/s. Annabel Builders and Developers Private Limited on 10.07.2009.  The complainant has suppressed the execution of this agreement and has not produced it.  But he is claiming relief under the agreement.  As per the agreement M/s. Annabel Builders and Developers Private Limited is also a party and hence they should have been made as a party to the proceedings, that has not been done.  Hence the complaint is bad for non-joinder of necessary parties.

10.      In any event it is an admitted fact that the parties to the agreement have stated that the complainant if he pays the installment early he will be given EPR at the rate of 13% and it is subject to changes.  In this regard Clause-1.4 of the agreement reads thus:-

“The company may allow, in its sole discretion, a rebate for early payments of installments payable by the Allottee, by discounting such early payments at the rates as shall be decided by the company from time to time for the period by which the respective installment is advanced.  The provision for allowing rebate and such rate of rebate shall be subject to revision/withdrawal, without giving any notice, at the sole discretion of the company.”

That is to say the opposite party has agreed to give interest on the early payment of advance at the rates as they deem fit and it is subject to changes.

11.      In this case what the payment received? When it was received? On what date it was received and encashed? What is the early payment? What is the rate of interest that has been collected? What is the early payment rebate that has been given is stated in the document which reads thus:-

The complainant has not disputed the payment of the amount on 10.10.2009, 20.06.2011, 15.07.2011, 25.07.2011, 31.07.2011, 10.08.2011 and 20.08.2011 in all Rs.21,30,150/-.  It is also stated on what dates the amount has been given, when the installments are alive with respect to the early payment they have given interest, the balance is taken to the next installment.  Even then these rebate has been given.  Thus the opposite party had given EPR from one day to 735 days as the case may be.  There is nothing to disbelieve the same.  Hence the complainant claiming EPR does not arise.  As it has already been given and adjusted to.

12.      Here the opposite party never agreed to pay compounding interest or rates at the discretion of the complainant.  The complainant is demanding compounding interest on the EPR stating that the Karnataka Bank has agreed to give compounding interest with respect to the EFD.  That is in no way concern to this case.  Any the opposite party has not taken any FD from the complainant nor agreed to pay compounding interest.  Here we cannot change the terms of the agreement stated supra.  This is not a case of FD and earning interest.  The opposite party receives advance early and for the period which is early they are giving rebate and interest and adding it to the complainant’s account that cannot be handed over to the complainant and it will be adjusted at the final payment of all the installments.  Here the entire building is not yet completed, entire amount is not paid.  Hence the complaint with respect to this early payment rebate can be made after the entire installments are cleared, the building is registered, if there is any balance in EPR, then the complainant is at liberty to approach the opposite party or any Court or tribunal or forum as the case may be.  This is not a suit for recover of money.  Hence we hold the above points accordingly and proceed to pass the following:-

ORDER

1.        The complaint is Dismissed.  No order as to costs.

2.       Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

3.       Send a copy of this order to both the parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 14^th  Day of September 2011)

MEMBER                                               MEMBER                                         PRESIDENT