COMPLAINT FILED ON: 02.03.2010

DISPOSED ON:31.10.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

31^st DAY OF OCTOBER-2011

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER

                     SRI. A. MUNIYAPPA                        MEMBER

COMPLAINT No.452/2010

O R D E R S

SRI. B.S. REDDY, PRESIDENT

The complainant filed this complaint U/s.12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps.)

(a) to remove and rectify all the deficiencies of services including those (i) caused due to the illegal use of the apartment by the 3^rd party by replacing the used/damaged materials in the apartment due to the illegal use or/ to pay an amount of Rs.4,00,000/- as damaged and costs towards repair and replacement of the damaged materials (ii) to handover the possession of the apartment and execute sale deed with an occupancy certificate complete with all the basic amenities including the specifications promised in the agreement such as BWSSB, gas connection, Swimming Pool, Health Club, Swimming Fool and health club exclusively for women,               and other amenities completes in all aspects as promised in the specifications.

(b) To declare that the complainant is not liable to pay any maintenance charges and interest charged for the delay until the delivery of the possession of the apartment with the amenities and facilities for which the maintenance are collected.

(c) Declare that the complainant is not liable for additional costs such as interest on delayed payment, additional infrastructure costs, increase in registration costs demanded as it was due to the delay of the OPs.

(d) Direct to OPs to furnish true and proper statement of account after rectifying and removing the deficiencies and proved with receipts.

(e) To pay compensation for all the damages and losses caused due to the deficiency of service as stated in Para-23 which is assessed at Rs.18,64,587.72/-.

  2.  The case of the complainants to be stated in brief is that:

          The OPs 2 and 3 are the proprietors of 1^st OP. The OPs are engaged in running the business of building and developing housing schemes. The OPs advertised about their development scheme, attracting the people to buy an apartment in “H.M.World City”, situated at Raghavanapalya & Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk a mini township consisting the residential development, commercial development with other amenities. The complainant after going through broacher furnished by the OPs. The advertising materials, the complainant reposed faith in the standard of service, entered into an agreement for sale of land and construction agreement with OPs. The OPs executed dt.07.02.2005 and the second construction agreement dt.07.02.2005 in favour of the complainant to construct sell  and deliver the two bed room apartment bearing No.002 on the ground floor of the ivory Block in the development scheme known as “H.M.World City”  for a total consideration of Rs.22,66,583/-. As per the agreement terms set out in the complainant paid Rs.18,46,077/-consideration amount as per the payment schedule towards the apartment No.002 as agreed by the parties by way of agreement with ICICI Bank, except the last payment which is made on completion of the apartment. The OPs never handed over the possession and apartment by end of August-2006 as set forth in the agreement or never intimated that there would be delay until 23^rd March 2007 for the first time. The OPs cited various flimsy reasons for delayed delivery of the project and committed to complete by 31^st July 2007, which was not honoured. The OPs have extended the deadlines several times. The completion date was end of August-2006 and even till date the apartment is not completed with the facilities and amenities promised in the construction agreement. The OPs have not obtained occupancy certificate. The delay as off today has been 4 years which is not a reasonable extension of time. The delay in handing over the possession, resulted in the complainant incurring additional costs due to the rental payments of Rs.11,500/- per month on their present rental house and interest loss on the loan taken without enjoying the apartment since 2006.  The OPs have violated the terms of the agreements by allowing some one else to illegally occupy the said apartment. In December-2008 when the complainant visited this spot he found out that his flat was illegally occupied by the contractor of OPs using the same as their office. The apartment was in very bad condition good flooring and kitchen was in a bad shape. One Prashanth from OP side promised to get vacate the contractor and replace and rectify all these damages done to the apartment on 24.05.2009 the complainant visited the apartment and found the said contractor still illegally occupying the apartment. The condition of the apartment had further deteriorated and the complainant entered into an agreement with OPs in order to purchase a brand new apartment not a used one. The actions of the OPs constitute deficiency of service OPs are clearly passing on the increased costs incurred due to the delay on the complainant, for no fault of theirs. These actions of OPs constitute unfair trade practice. The last payment is to be made on completion of the project. The completion of the project means, when the apartment is completed according to the terms and specifications of the agreement. As per the specifications attached in the construction agreement basic necessities such as gas connection, approach road, BWSSB water connection and other facilities are not completed till date Swimming Pools and Health Club including exclusive ones for women which are not completed till date. This clearly shows gross deficiency of service and negligence on the part of the OPs to complete the project an amount of Rs.75,000/-has been collected towards membership of the exclusive Club, there is no sign of any structure built till date. The OPs are harassing the complainant to register the property in te above state. The OPs have not obtained occupancy certificate. The OPs have not fulfilled their statutory obligations such as construction and operationalizing the STP plan of HM World City clearly states that these are pre-requisites to register the apartment without completing the same. The OPs have demanded and added maintenance charges to the complainant to providing the amenities and facilities, the question of charging maintenance does not arise. The complainants are not liable for payment of maintenance charges before completion of the apartment, the interest charged of delayed payment towards maintenance does not arise. The statement of accounts on 09.05.2009 furnished by OPs, contains collection of service tax. In spite of circular issued stating that the builders need not   collect service tax. The OPs are requesting the increasing payment of registration, stamp and other charges. They have not furnished the details. The registration charges could be paid directly to the registrar. Hence, the OPs were not required to registration and stamp duty costs in the statement of account further additional tax charges are demanded. The complainant is willing to pay such statutory charges on the OPs on providing with the details, breakup and receipts for the same. The OPs are demanding additional infrastructure charges when they have already collected the same. Moreover, additional infrastructure charges do not arise when the increase is due to the delay caused by OPs. The OPs have requested payments for external infrastructure charges, when they are none provided. The OPs have delayed the completion of the apartment and delayed the possession of the apartment, thus they cannot charge interest for delayed payments. The complainant requested for receipts and true accounts, the OPs refuse to provide the same. The OPs have caused harm to the complainant by not co-operating with the complainant when the complainant wanted to transfer and sell the apartment to third party in 2007 of the Construction Agreement. The complainant got issued notice dt.27.10.2009. The OPs had sent a letter to threatening to dispose of the incomplete apartment if the complainant does not pay the additional cost demanded. The complainant has paid 90% of the construction amount in 2006 itself and since then he has been incurring loss with no apartment. The OPs have misrepresented and deceived the complainant by luring the purchasers to invest large amounts of money by giving misleading advertisements in brochures, websites, agreement and not fulfilling the same. Now, they are demanding and harassing the complainant to pay more money while they have diverted the payments already paid by the complainant. The OPs have committed breach in terms and contract and they are negligent in rendering the service by not honoring the terms of the agreement. The total loss suffered by the complainant due to the deficiency of service by the OPs is to an extent of Rs.18,64,567.72/-at para-22 of the complaint. The OPs failed in discharging their duties and are guilty of adopting and restrictive trade practice and providing deficient service. The complainant is entitled to compensation for hardship, loss and for having unnecessarily being drawn into litigation by OPs. The complainant is also entitled to receive true and correct accounts from the OPs and receipts on costs extended by the OPs. Hence this complaint.

3.   On appearance, the OPs filed version contending that the complaint is not maintainable; the complainant has suppressed all true and material facts. The relief claimed is in the forms of specific performance of contract, such relief cannot be granted by this Forum civil Court is only competent to relief. The complaint is barred by limitation. The OPs have formulated a scheme for advertising the property a mini township comprising of residential apartment, cover apartments comprising of civil blocks buildings with swimming Pool and common areas etc known as “H.M.World City”. The OPs have already secured the master plan approved by the BDA and the ops have already started the construction work and the construction of 1^st Phase already completed and the first phase is ready of occupation the work at second phase is under progress it is admitted that the parties agreed by upon a date by which construction would be completed. This fixation of date is only tentative. Clause VII(12) of the agreement makes clear that the dates stipulated for the delivery of the apartment is subject to variation on account of force major, non-availability of cement, steel and other construction material, civil commotion or act of god etc. The OPs are not responsible for delay in obtaining statutory clearances, as per the agreement, the complainant was not entitled to claim any damages, lands against the OPs under any circumstances on the grounds mentioned above for reasons beyond the control of the OPs and OPs shall be entitled to a reasonable extension of time for the delivery of the completed premises. The OPs shall also pay entitled to a grace period of 3 months. As per Clause-VII(28) of the construction agreement, the matter shall be referred to Arbitration, the complaint is not maintainable. The OPs undertaken developments in the right earnest. However there were some difficulties faced by OPs on account of various aspects which were beyond their control. There was civil unrest on account of Cauvery issue, Hogenakal falls etc. The death of Kannada Cinestar Dr.Rajkumar also led to a low and order problem. The other aspects which led to civil unrest, the known supply of construction materials on account of strike by sand suppliers, truckers strike, etc. The OPs have taken all steps to and obtaining completion certificate. Since the project envisaged is used, considerable time will be taken for the authorities for instruction. The complainant has not paid the entire amount due towards the flat booked clause-VII(12) of the construction agreement Cleary indicates that in case of delay in delivery of the apartment beyond the grace period, the developer shall pay the owners damages at Rs.2/- per square. Even after super built up area per month of the delay till the delivery of the apartment. Accordingly, the OPs vide the statement dt.05.08.2009 credited an amount of Rs.20,368/- which has been accepted by the complainant. The OPs have persistently been reminding the complainant about the balance payments to be made by him. Unless and until the payments are made, the question of registering the property and putting the complainant in possession will not arise. For the default committed by the complainant, the OPs cannot be held responsible. OPs having due regard to the fact that the complainant has invested his hard earned money have not taken any action to terminate the agreements despite the defaults committed by them. The present complaint is filed to gain time for making the plans payments as the complainant does not have the requisite found it is admitted that the complainant has not made payment to the tune of Rs.18,46,077/- out of the total consideration agreed to be paid at Rs.22,66,583/-. The OPs admits the execution of the agreements the total consideration was payable subject to Clause-VII(8) of the construction agreement which clearly indicates that the complainant is also liable to pay all the required and additional expenses as mentioned in Clause-VII(8)(a)(b)(c) and (d). The averments that till date there has been no delay in any payments on the part of the complainant as per the payment schedule is denied as false and baseless. The complainant is due to the OPs a sum of Rs.9,28,824/-. The breakup of the payments were made was communicated to the complainant through letter dt.05.08.2009. The averment that till the date is apartment completed with the amenities and facilities as promised in the construction agreement is denied as false and baseless. Further the averment that the complainant is incurring additional costs due to the rental payments of RS.11,500/- per month on his present rental house and the loan taken is not within the knowledge of OPs. The OPs cannot be held responsible for the time taken by the Governmental authorities in issuing the occupancy certificate. There is no question of OPs handing over the possession of the apartment with the occupancy certificate, until and unless the entire payment is made. The averments that the OPs allowed some one else to illegal apartment denied as false and baseless. The apartment as on date is fully complete as per the requirements of the complainant and there is no damage caused to the apartment as alleged by the complainant. The OPs after completion of the construction has to submit the requisite papers to the concerned authorities for granting the occupancy certificate. OPs have already issued a letter dt.9.05.2009 as a final reminder to the complainant and the said letter indicates the delay on the part of the complainant in making the balance payments. The complainant is liable to pay the statutory charges as agreed far at the time of entering into the agreement. The averment that the OPs demanded additional costs solely due to the delay in completion of the project and the same amounts to unfair trade practice is denied as false and baseless. The occupancy certificate which is to be granted by the concerned authorities has got anything to do with the procedure inspecting the flat. It is admitted that the OPs have demanded and added maintenance charges from the complainant the complainant is liable to pay the maintenance charges as per the terms of the agreement. The OPs in their letter dt.05.08.2009 have charged maintenance charges of Rs.21,951/- from 01.05.2008 to 30.04.2010. The complainant is liable to pay the differential amounts as stated in the letter dt.09.05.2009 before executing the sale deed in the name of the complainant. Service Tax is to be collected and remitted to the concerned authorities. The OPs have already paid the service to the contractors, Architects, etc., which is being claimed as a reimbursement from the purchasers. The OPs are collected the stamp duty, registration fee and other expenses which would be incurred at the 4 office of the sub-registrar. If the complainant is ready to get the sale deed registered at his own cost and expenses by waiving the responsibility of the OPs, the complainant is free to do so by directly paying the stamp duty and registration fee to the office of the sub-registrar and bears the necessary expenses.

4.   OPs having discharged all the necessary statutory duties, are entitled to claim the same from the prospective purchasers and OPs have already issued the final reminder dt.09.05.2009 which clearly indicates the particulars of the payments along with the breakup of the amounts to be paid in favour of the OPs. The averment that demanding of the additional infrastructure charges do not arise when the increase is due to the delay cost by the OPs and the costs are being imposed on the complainant is false and baseless. As per the terms and conditions agreed between the parties, the complainant is liable to pay charges towards external infrastructure and other charges. The complainants are liable to pay maintenance charges in advance as provided for in Clause-VII(8)(d) of the agreement. The complainant is liable to pay the prevailing external infrastructure charges before executing the sale deed as per the terms of the agreement. The allegation that OPs refused to render true and proper accounts is denied as false, the complainant never asked for the same in four years. OPs were always willing to render the break-up amounts as and when demanded by the prospective purchasers. When the complainant wanted to sell the apartment to a 3^rd party in 2007 by paying certain charges to the OPs, OPs have caused harm to the complainant are false and baseless. The complainant has never come forward to pay the balance amount due to the OPs. The complainant purchased the apartment only with an intention to sell it to 3^rd parties at a higher rate, this clearly goes to show that the complainant is not interested in performing his part of the contract but on the other hand wants to make monetary gain by selling the apartment to 3^rd parties by acting as an agent and making wrongful gains at the hands of the OPs. OPs were always ready to willing contract to perform their part of the contract, the complainant instead of making balance sent a legal notice to get a refund of the amount which clearly indicates that the complainant is not interested to get the sale deed registered. The averments that the OPs have not completed the apartment as per the terms of the agreement and they have been misrepresented the complainant through misleading advertisements is false and baseless. The complainant has miserably failed to comply with the various terms and conditions of the agreement. The complainant has failed to pay entire amount towards the costs of the apartment, towards maintenance and consultancy charges unless and until the entire payments are made, there is no question of the OPs handing over the possession of the apartment with the occupancy certificate. The complainant is a speculator and acts as an agent by way of entering into and agreement 1^st with the OPs and then observing the prevailing market conditions, tries to alienate the property in favour of the 3^rd parties even before making balance payments which are due to the OPs and without performing his part of the contract which makes it clear that the complainant is not interested in getting the sale deed registered in his name. Hence it is prayed to dismiss with exemplary costs.

5.   In order to substantiate the complaint averments the GPA., Holder of the complainant filed affidavit evidence and produced documents. OP2 filed affidavit evidence in support of defence version and produced documents.

6.   The complainant filed Written arguments. Arguments on both sides heard.

7.   Points that arise for our consideration are:

       Point No.1:- Whether the complainant has proved           

                          the deficiency in service on the part of

                            the OPs?

               Point No.2:- If so, whether the complainant is

                   entitled for the reliefs now claimed?

       Point No.3:- To what Order?

8.  We record our findings on the above points:

Point No.1:- In Affirmative.

Point No.2:-In Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

9.   The undisputed facts are that the complainant entered into an agreement for sale and construction agreement with OPs on 07.02.2005 in respect of apartment No.G002 Ivory Block in HM World City measuring 1273 sq feet for a total consideration of Rs.22,66,583/-. The land value is shown at Rs.3,81,900/-and the construction value at Rs.18,84,683/-. Thus the total value is Rs.22,66,583/-. As per Clause-VII(1) of the construction agreement OPs agreed to deliver the apartment by the end of Aug-2006 subject to Clause-VII(12). The schedule of payments is shown in the construction agreement. The complainant has paid Rs.18,46,077/-, as per the payments schedule by way of agreement with ICICI Bank by availing housing loan. The payments made included BWSSB, Power, external infrastructure (Rs.1,27,300/-) piped gas connection (Rs.25,000/-) club membership (Rs.75,000/-) generator deposit (Rs.20,000/-) corpus fund (Rs.25,460/-) Khata transfer (Rs.20,000/-).  OPs could not complete the construction and deliver possession of the apartment within the stipulated period. Further time for completion was taken till 31^st July-2007, even then, OPs could not complete the construction and deliver the possession. The complainant claims that till date the apartment is not completed with the facilities and amenities promised in the construction agreement and OPs have not obtained occupancy certificate. The delay has been more than 4 years, as a result of delay in handing over the possession the complainant has been incurring additional costs due to the rental payments of Rs.11,500/-per month on their present rental house and also incurred interest loss on the loan taken without enjoying the apartment, since 2006.

10.   In the written arguments submitted at Page-10 the complainant has reported the works completed subsequent to filing the compliant, common swimming pool, in front of the apartments by altering the location of the plan. However, there is no specific Swimming pool for the ladies and health club as promised in the specification piped gas connection provided from Aug-2010 as per the first bill.

11.   It is contended that OPs are bound to complete the apartments in all aspects as promised in the specifications and only then offer possession of the apartment. The offer of possession of the apartment not complete as per the specification is not a valid offer, the complainant is not liable to take the possession of in complete apartment. The OPs are liable to pay compensation and penalty, interest on the amounts collected until the date, the apartment is handed over complete in all aspects as per the specifications of the agreement.

12.   OPs are mainly relying on Clause-VII(12) of the construction agreement in support of their defence that they are not liable to pay any compensation for the delay in obtaining the occupancy certificate. Further their defence is the fixing of time in the construction agreement is only tentative. OPs made substantial efforts to complete the project within the stipulated period. It is stated that the apartment is complete in all respects, no sooner the completion certificate is issued by the competent authorities the project will be open for inspection by all the plot owners. As per Clause-VII(12) of the construction agreement the OPs have credited an amount of Rs.20,368/- to the account of the complainant at the rate of Rs.2 per squire feet on super built up area per month of the delay. It is stated that the complainant is due to an extent of Rs.9,28,824/- unless the complainant pay the said amount OPs are not liable to execute the registered deed and put the complainant in possession of the apartment.

13.   The relevant Clause-VII(12) of the construction agreement provides:-

The date stipulated for delivery for of the Schedule ‘B’ Apartment is subject to variation on account of force majeure, non-availability of Cement, Steel and other construction materials, civil commotion or acts of God or any Rule, Notification of the Government, Municipal Authority, any Court and / or any other Public or Competent Authority prohibiting construction activities/ Government Orders/ Restriction/ controls and other reasons which are beyond the control of the Developer. The Developer shall make every effort to obtain occupation Certificate, electrical, sanitary and water connections within the stipulated date, however the Developer shall not be responsible for delays in obtaining such connections from Statutory Authorities. The second Party shall not be entitled to claim any damages/losses against the Developers under any circumstances on the ground mentioned herein, for reasons beyond the control of the Developer and in any of the aforesaid events, the Developer shall be entitled to reasonable extension of time for delivery and possession of the completed premises and the monies till then paid by the owner/s under this Agreement shall not be refunded. In addition to the above, the Developer shall be entitled to a grace period of 3 months. In case of any delay in delivery of the apartment beyond this grace period, the Developer shall pay the Owner/s damages at Rs.2/- per Sq.Ft. super built-up area per month of delay of the Schedule ‘B’ Apartment till delivery, provided the Owner/s has/have paid all the amounts payable as per this Agreement and within the stipulated period.

14.   The complainant has accepted the terms of the agreement agreeing to receive damages at Rs.2/- per sq.ft., super built up area per month of delay in delivering possession of the apartment. OPs by their final reminder dt.09.05.2009 issued to the complainant demanded to pay the balance amount within 15 days failing which it will be construed that the complainant has no interest in the apartment and OPs will be taking action to terminate the agreement. The amount due from the complainant is shown as under:-

1.   Rs.6,81,104/- in favour of Global Association.

2.   Rs.42,760/- in favour of HM Management and Consultancy Services.

3.   Rs.2,76,000/- in favour of The Sub-Registrar, J.P.Nagar, Bangalore, towards Stamp Duty.

4.   Rs.33,000/- in favour of the Sub-Registrar, J.P.Nagar, Bangalore, towards Registration fee.

Thus the total amount claimed is Rs.9,26,824/-.

The amount payable shown at Rs.6,81,104/- to OPs includes differential registration amount of Rs.1,57,390/-. BWSSB, KPTCL and external infrastructure charges of Rs.63,650/- statutory charges of Rs.1,82,391/- maintenance at Rs.1.25 per squire feet SBA 12 months (01/05/2008 to 30/04/2009) Rs.19,095/- interest on delayed payment towards maintenance (01/05/2008to 30/04/2009) Rs.2,856/-, further maintenance at Rs.1.25 per squire feet SBA 12 months (01.05.2009 to 30.04.2010) Rs.19,095/-interest delayed payments towards Global Association  Rs.82,209/-. As per document No.4 SOA Total Debit side is Rs.27,93,269/-. The total amount shown towards credit side is Rs.18,66,445/-. Net payable is shown at Rs.9,26,824/-.  

15. Clause VII(14) of the construction agreement provides payment of maintenance charges. As per the said clause, from the date the apartment is ready for occupation, whether possession of the same is taken or not, firstly pay the sums mentioned in Clause-8(d) which will be used by the developers towards the maintenance of the said building and thereafter on being called upon by the developers, pay proportionate share of all outgoings and maintenance costs and general expenses such as insurance, Municipal expenses, taxes and cesses, electrical and water tax and all other maintenance charges of the building and common areas as determined by the developers. Clause-8(d) of the agreement provides that the complainant shall pay the maintenance charges calculated at the rate of Rs.1.25/- per square feet per month of super built up area to the first party annually. The first payment of the annual maintenance charges shall be paid 12 months in advance at the time of taking possession of the flat or within seven days of the developers informing that apartment is ready for occupation whichever is earlier. An amount of Rs.20/- per square feet on super built up area shall be paid by the complainant towards corpus fund for emergencies, M/s H.M. Management and consultancy services, will be the agency for maintenance of the building. Any default/delay in payment of the annual maintenance charges shall attract interest at the rate of 18% p.a. The purchaser shall also contribute to the sinking fund for such capital expenditure as replacement of the generator, transformer or painting of common areas etc., payable quarterly in advance as may be determined by the developers. The corpus can also be used for the above-mentioned capital expenditure only.

16. Admittedly, the Ops have not obtained occupancy certificate in respect of the apartment, without occupancy certificate it cannot be said that the apartment is ready for occupation. The Apex Court in Fakeer Chand Private Limited (2008) 10 SCC 345 held that it is the duty and obligation of the builder to offer possession of the apartment along with occupancy certificate. Offer possession of the apartment without occupancy certificate amounts to deficiency in service and it is no possession on the part of the OPs. In 1996(4) CTJ 979 V.L.Banu Kumar V/s Degasundara Rama Reddy and others, where the apartment was in complete without amenities and facilities promised and a false notice version stating the apartment is complete in all aspects, it was observed that the purchaser need not pay additional charges such as association fees, maintenance fees only possession of the apartment is delivered complete as per the agreement. Therefore, we are of the view that OPs are not justified in demanding maintenance charges and interest on the same from the complainant.

17.Further the defence of the Ops that Ops cannot be held responsible for the delay in issuing the occupancy certificate as it is due to the delay of the Governmental agencies cannot be accepted. The Bangalore Development Authority has issued endorsement under RTI Act on 12.04.2010 to one Mithun Gerahalli marked as Annexure-37 which states that the BDA has not issued the occupancy certificate because of non-fulfillment of obligations on the part of the OPs. It is mandatory under Clause-5.6 and 5.7 of the Bangalore Mahanagara Palike Building Bye-laws-2003, that an occupancy certificate before a person can occupy any new building. For occupation of new building without occupancy certificate would be illegal occupation. The complainant can be evicted by the concerned authorities if he takes possession and occupy the apartment without occupation certificate.

18. With regard to BWSSB water connection one Mithun Gerahalli has obtained endorsement dt.01.02.2011from BWSSB under RTI Act which reveals that there is no service in the area, and no amount is deposited towards water supply. Thus it becomes clear that OPs not deposited the amounts received towards BWSSB connection as shown in Statement of Accounts at page-45. HM has collected Rs.1,27,300/- towards BWSSB, KPTCL and other infrastructure charges. OPs by their letter dt.28.04.2008 stated that BWSSB connection is in progress and now in one of their letter dt.18.03.2010, state that BWSSB connection is not available and would be given when available.

19.The complainant claims penalty charges for the amounts collected towards the BWSSB connection until the date of connection as OPs have kept the charges with them collected under the pretext of paying the same to BWSSB and have gained at the cost of the complainant. OPs collected these charges misrepresenting the complainant that they would get BESSB connection when the locality itself does not have connection. In their version at para-13 the OPs stated that apartment is fully complete. Now by their letter dt.18.03.2010 they states that the connection is not available but state they have paid the charges but the endorsement produced clear goes to show no application submitted for any such connection. In our view when the area is not covered with BWSSB water supply scheme, the Ops were not justified in collecting the amount towards deposit for BWSSB water supply.

20. OPs in their emails in 2007, 2008 and 2009 (pages 160 to 163) stated that the swimming pool will be completed soon. The photos along with newspaper submitted of incomplete works at page 336-337 even on 01.02.2010. Swimming pool and health club exclusively for woman is still not completed as on date. Approach road-photos submitted at page 338-339 shows mud road. OPs in their letter dt.28.04.2008 at page 162 states that STP is already ready. Even in their affidavit and version they state the same but now as per their letter dt.18.03.2010 the same would not be completed until phase-4.

21. With regard to damaged apartment due to illegal occupation, the complainant has produced photos along with daily newspaper at page 338-339. Ops in their email dt.08.08.2009 at page 314, stated that NCCL project team was temporarily using the flat thinking that the same is unsold one and when once the flat is sold however as already confirmed to you. We will complete all the works at your flat before handing over possession we will replace all the toilet fixtures and fixtures as required by you. Further emails are sent by the complainant to rectify the defects and hand over possession as agreed. Since, OPs are ready to rectify the defects in the apartment by replacing the damaged materials while delivering possession of the same to the complainant. In view of the same, the complainant is not entitled for the costs for rectification of that damaged portion as claimed in the complaint.

22. Copy of the notice sent by complainant to OPs dt.02.06.2009 is at page 300, in the said notice, OPs were informed that when the complainant visited flat on 24.05.2009 the flat was still occupied by OPs contractor NCCL, in fact the condition of the flat is even worse now. In the said notice, the complainant demanded OPs to complete the remaining work at the earliest and to inform about the same. Further 8 months penalty at the rate of 2 per squire feet of the built up area from 01.08.2007 to 31.03.2008 is claimed at Rs.20,368/-. Apart from that penalty OPs were demanded to pay the rent at the rate of Rs.25,000/- per month from Aug-2006 till actual delivery date for renting out the complainant’s flat to the contractor of OP. It is also stated that apartment is not completed as pr the terms of the agreement and the flat is being occupied and used by OPs sub contractor, complainant need not pay the maintenance charges and interest on delayed payments to Global Associates as demanded by OPs. Maintenance charges for 2009-10 will be applicable from the date only after completing the apartment as per the agreed terms. It is also mentioned that the registration cost went up Rs.212390 for which OP is responsible and OP has pay the differential amount. The details of the differential registration amount is shown at Rs.2,12,390/- further it is demanded to provide the proof on the increase in KPTCL, BWSSB and external infrastructure charges amounting to Rs.63,650/-.

With regard to statutory charges Rs.1,82,391/-the complainant informed that always he is prepared to perform his part of the agreement, it is only due to OPs fault the agreement could not be completed. OPs to bear any extra cost or taxes that are to be paid as stated in OPs notice. OPs were demanded to pay Rs.5,00,000/- compensation for failure to perform their part of agreement and Rs.5,00,000/- towards the causing mental agony and inconvenience. Thus OPs were demanded totally Rs.10,00,000/- compensation.

23.It may be noted that in the construction agreement it is shown that on completion the balance amount of 5% of the construction amount cost, corpus fund, stamp duty, registration and Advocates fee to be paid. Without OPs obtaining occupancy certificate by completing the apartment with specifications and amenities, the complainant is not liable to pay the last payment. In view of the same, OPs are not entitled to demand the balance amount payable and interest on the said amount from the complainant. Further in the agreement, it is mentioned that registration, bescom, BWSSB, Vice charges towards property assessment and Khata transfer charges payable at actual. In view of the same, the complainant cannot avoid his liability to pay the said charges. Merely because OPs failed to deliver possession within the stipulated period and there is delay in completing the construction, OPs cannot be made to bear the escalated costs and stamp duty, registration charges and other deposits to be made.

24.   As per the construction agreement Clause-VIII(a) the complainant has agreed to pay deposits/or other charges or levies demanded or required to be paid to bescom, BWSSB, BDA, Village Panchayath or other Government agencies. In view of the said clause, OPs are justified in demanding the difference of deposits and other charges from the complainant.

It is contended for the complainant that OPs have not furnished the details in increase of payment for registration, Stamp Duty and other charges. OPs have demanded for payment of additional statutory charges, the complainant is willing to pay such statutory charges on OPs providing the details breakup and issue receipt for the same. It may be noted that in the version filed at Para-20 OPs clearly pleaded that the complainant would be given the receipts for the amounts collected and complainant would also get appropriate endorsement from the sub-registrar. It is also stated that the complainant is free to get the sale deed registered at his own costs. In view of this we are of the view that instead of making any payment towards stamp duty and registration charges to the OPs, the complainant can get the sale deed registered at his own costs. Further, OPs have issued final reminder dt.09.05.2009 indicating the particulars of the payments to be made with the breakup of the amounts to be paid. As per the terms of the agreement the complainant is liable to pay the charges towards extra external infrastructure and other charges. OPs are entitled to collect the same before executing the sale deed and issue the receipts by furnishing the details to the complainant. In view of Clause-VIII(a) of the construction agreement it cannot be said that OP is not justified in demanding the statutory charges.

25.The broacher issued by OPs and the newspaper advertisements contains the facilities to be provided for the apartments. The complainant being attracted by the said advertisements opted for purchasing the apartment, OP has collected an amount of Rs.75,000/- from the complainant towards membership fee of the club. The other facilities like shoping complex, theatre are not at all constructed. By publishing attractive advertisements assuring to provide the facilities and amenities made the complainant to purchase the apartment by OPs but till date the said facilities and amenities are not provided, the same amounts to unfair trade practice and deficiency in service on the part of the OPs. 

26. Clause-VII(2) of the construction agreement provides that the building including the schedule (B) apartment shall be constructed by the developers as per the plans/designs sanctioned by BDA. The developers will be entitled to make such variations or modifications in the plan/designs/ specifications, as may be required by the first party or other governmental/statutory authorities or such change or otherwise deemed necessary or advisable by the developers, without however substantially altering the dimensions of the schedule ‘B’ apartment.

The grievances of the complainant is that OPs without his consent altered the plan sanctioned, according to the brochure the swimming pool and health club and swimming pool and health club exclusively for the women is shown in the club house location. The OPs have constructed the swimming pool right in full view of all the blocks in the space earmarked for park and landscaping and now there is no health club and swimming pool exclusively for women as mentioned in the specification of the agreement. In our view, though the OPs were given liberty to alter the plan and specifications but not providing the assured amenity of health club and swimming pool exclusively to women is nothing but deficiency in service on the part of the OPs.

27.The complainant intended to dispose of the apartment in question while it was under construction it appears that OPs have not responded for the same. There is no merit in the contention of the OPs that the complainant is speculator as he intends to sell the apartment at higher cost. Merely because, the complainant intended to sell the apartment while it was under construction it cannot be said that he has no right to seek the relief claimed in the complaint.

28. The service charges to an extent of Rs.63,586/- as shown in the construction agreement has been paid by the complainant. The other purchasers of the apartments in the same project who have paid the service charges have already filed applications before the Directors of the OP as per Annexures-38 and the competent authority as per Annexure-39 for refund of the amount paid towards service charges, in view of the Circular issued by the Central Board of exercise and the Custom Department the copy of which has been produced as document No.9. At Para-19 of the version. It is pleaded that the service charges collected has been paid to the contractor/architects etc, which is being claimed as reimbursement from purchasers. In our view, OP has already paid the amount towards service tax, collected from the complainant, only after the refund of the said amount to the Contractor; the complainant can claim the said amount from OPs. Without refund of that amount OPs cannot be directed to refund the service charges collected. The complainant can also approach the directors of the Op and competent authority for refund of the service charges, as other purchasers have taken steps to get the refund of the amount.

29.The time stipulated to complete the construction and deliver possession of the apartment was by the end of August-2006 as per the agreement but it appears that the time was not essence of the contract as OPs sought time extended for completion of the apartment till 31/10.2007 as per Annexure-28 and further time till 31/03/2008 as per Annexure-29. The very fact of damages fixed at Rs.2 per sq.ft., per month on the built up area for the delay in completion and delivery of the possession, the complainant having not rescinded the contract when OPs failed to complete the construction and deliver possession within the period further supports the fact of time being not essence of contract. In addition Clause-VII(12) of the agreement also provides the circumstances under which the OPs can seek extension of time in delivering possession of the apartment.

30.OPs are entitled to collect the maintenance charges only after the apartment is complete as per the specification with occupancy certificate till then complainant is not liable to pay maintenance charges.

31.There is no merit in the contention of OPs that the complaint is barred by limitation. Though the agreements are executed on 07.02.2005, till OPs completes the construction as per the specifications and put the complainant in possession of the apartment, the cause of action continuous to claim the relief’s by filing the complaint. The existence of Arbitration Clause in the agreement is not a bar for filing the complaint seeking the necessary relief’s as held in AIR 2000 SC 2008 Skypak Couriers V/s Tata Chemicals.

32.At Para-22 of the complaint, the details of the claims made are stated. With regard to claim of Rs.4,00,000/- in order to replace and rectify the damages of the apartment cannot be considered, as OPs have undertaken to remove and rectify the damaged parts of the apartment while delivering possession of the same to the complainant. 

          An amount of Rs.6,64,587.72/- is claimed towards delay in delivery of possession of the apartment at the rate of 12% p.a. for 3 years on the amount of Rs.18,46,077/- paid to the Ops. In our view, the complainant has received damages at Rs.2 per square feet of super built up area per month of delay in delivering possession of the apartment in terms of the agreement, in view of the same, the complainant is not entitled to claim interest at 12% p.a. on the amount paid to OPs.

          Further an amount of Rs.3,00,000/-is claimed towards rental payments of Rs.11,500/- per month since Novermber-2006 on account of delay in delivering possession of the apartment. In our view, as the complainant has accepted the terms of agreement to receive damages at Rs.2 per square feet of super built up area per month of delay in delivering possession of the apartment, in view of the same, there is no justification to claim rental payments to the tune of Rs.3,00,000/-.

          The learned counsel for the complainant contended that the damages fixed at Rs.2 per square feet of super built up area per month of delay in delivering possession of the apartment is not reasonable as OPs were in a dominating position at the time of agreement, the said terms cannot be enforced and complainant is entitled for interest at 12% p.a. on the amounts paid and an amount of Rs.3,00,000/-claimed as rental amount paid for his premises. In our view, when complainant has received the damages of at Rs.2 per square feet of super built up area per month of delay in delivering possession of the apartment, it cannot be said that the said terms has been imposed on the complainant and he has been made to agree for the same by any deceitful means. Thus we are unable to accept that the said terms regarding payment of damages for the delay in delivering possession cannot be enforced. 

                 An amount of Rs.5,00,000/- has been claimed towards damages for mental agony, harassment and hardship caused in delay in delivering possession and allowing some one illegally to occupy the flat and thereby handing over used apartment. In our view, the acts of OPs altering the sanctioned plan depriving the complainant the facility of exclusive swimming pool and health club for women and unreasonable delay in completing the apartment with specifications as agreed, demanding maintenance charges without completing the apartment, offering possession without occupancy certificate amounts to deficiency in service on the part of the OPs. Taking into consideration of all the facts and circumstances, it would meet ends of justice by awarding compensation of Rs.1,00,000/- towards mental agony and hardship caused. OPs are to be directed to complete the apartment within 3 months and deliver possession of the same with occupancy certificate to the complainant. In the event of failure OPs are to be made liable to pay interest at 18% p.a. on the amounts paid from the date of complaint till the completion of the apartment with specifications and deliver possession with occupancy certificate by executing the sale deed at the costs of the complainant. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant allowed in part.

a)   OPs are directed to remove and rectify the damages caused to the apartment of the complainant by replacing the used/damaged materials in the apartment and execute the sale deed with occupancy certificate by completing with all the basic amenities as per the terms of the construction agreement dt.07.02.2005 and deliver possession of the apartment to the complainant within 3 months from the date of this order. In default OPs are liable to pay interest at 18% p.a. on the amount of Rs.18,46,077/- from the date of complaint till the date of executing sale deed and delivering the possession of the apartment with occupancy certificate to the complainant. The complainant has to bear the expenses of the registration of the sale deed.

b)   The complainant is not liable to pay any maintenance charges and interest charged for the delay until the delivery of possession of the apartment with amenities and facilities.

c)    OPs are directed to pay compensation of Rs.1,00,000/- towards mental agony and hardship caused to the complainant and litigation costs of Rs.5,000/-within four weeks.

Send copy of this order to both the parties free of costs.  

 (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 31^st day of OCTOBER-2011.)

 MEMBER                        MEMBER                             PRESIDENT

Cs: