Karnataka

Bangalore 4th Additional

CC/11/1558

Sumit kanti Dey - Complainant(s)

Versus

M/s Ittina Properties Pvt.Ltd. - Opp.Party(s)

Law park Associates

24 Oct 2017

ORDER

Complaint filed on: 23.08.2011

                                                      Disposed on: 24.10.2017

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1558/2011

DATED THIS THE 24^th OCTOBER OF 2017

 

PRESENT

 

 

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mr.Sumit Kanti Dey

aged about 41 years,

S/o late Mr.Benoy

Bhushan Dey,

R/at D-3, Navya Elite,

27^th cross, Ejipura road, Bengaluru.

Rep. by his GPA holder Mr.Sourav Kanti Dey

 

By Advocates

M/s.Adinath Narde

& Revathi Associates   

 

 

V/s

Opposite party/s:-    

 

1. M/s.Ittina Properties Pvt. Ltd., Office at no.1054,

7^th main, 3^rd block,

Koramangala,

Bengaluru-34.

Rep. by its Authorized Signatory

 

2. Mr. Mona Ittina,

Director

M/s.Ittina Properties Pvt. Ltd., Office at no.1054,

7^th main, 3^rd block,

Koramangala,

Bengaluru-34.

 

3. Mr. Manu Ittina,

Director

M/s.Ittina Properties Pvt. Ltd., Office at no.1054,

7^th main, 3^rd block,

Koramangala,

Bengaluru-34.

 

By Adv.Sri.Satheeshkumar.N.C.

 

  

ORDER

 

Under section 14 of consumer protection Act. 1986.

 

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

 

            The Complainant has sought direction against the Opposite parties:

1. for payment of 21% interest on Rs.16,56,000/- from May 2006 to 19.07.13 for the delaying in handing over the possession of his flat.
2. to return the enhanced price of Rs.2,37,595/- with interest at 21%
3. and to pay the compensation of Rs.2 lakhs.

 

          2. The Complainant has alleged the deficiency in service by the Opposite parties in not handing over of the possession of the flat no.311 at 2^nd floor of “O” block of “Ittina Mahavira complex” and for not providing the amenities.

 

          3. The case of the Complainant in brief is that he booked the flat 311 of “O” block, measurement 1159 sqft. at Rs.1400/- per sqft. and by paying Rs.1 lakh towards the total consideration amount of Rs.20,17,000/-, entered in to sale agreement dtd.17.05.05 and paid Rs.3,03,000/- as on that date in total. Wide clause no.7 of sale agreement, if there is any delay in handing over of the possession, the Opposite parties had to pay interest at 21% p.a. He availed the housing loan from HDFC and arranged to pay stage wise to the Opposite parties to the extent of Rs.13,53,000/-. The Opposite parties did not handover the possession completely built flat with amenities within the stipulated period, despite his negotiation through email correspondence and personal visits.  During the pendency of this case, the possession of the booked flat was given on 19.07.13. Then also against clause no.7, the amenities which was provided on or before 2006 were not provided namely common ways, terrace area, stair case area, garden area, parking area, jogging area etc., and thereby as per clause no.8, interest 21% has to be paid. The Opposite parties did not furnish the occupancy certificate to him. Car parking area was not alloted, plumbing work became in complete as water supply to bath room and drawing room not made. The cost at the rate of Rs.1605/- was charged as against Rs.1400/- per sqft. and thereby excess of Rs.2,37,595/- was collected. He was ready to pay the balance amount of Rs.3,61,000/- and to pay registration charges, stamp charges etc., if the Opposite parties furnished all amenities by completing balance work. The legal notice dtd.04.07.11 was returned unserved with shara “left”. Hence he was constrained to file this complaint and also to amend the complaint at the later stage because of taking possession during the pendency of the case.  

 

          4. The Opposite parties in their version have contended that the complaint is bad for non-joinder of HDFC, mis-joinder of Opposite party no.2 who left the company on 17.04.10. The Complainant was not represented by GPA properly. The Complainant has tried to mislead the forum totally. The cost of the flat Rs.20,17,000/- was excluding the VAT and service charges. HDFC paid only Rs.15,64,232/- and not Rs.16,56,000/- as alleged. The Complainant has not stated about his obligations mentioned in “C” schedule of sale agreement. He becomes entitled to get possession only after payment of Rs.19,17,000/- with Rs.99,500/- and he is still due to pay Rs.5,79,188/-. The pending balance work is equivalent to payment due from him and it is revealed from the correspondence materials. The common amenities already furnished are being enjoying by more than 700 flat owners and their family members residing therein. The only amenity under process is the lift which was under the stage of proper approval. The Complainant who has filed this complaint on false grounds, does not become entitled to get any relief. The complaint is liable to be dismissed.

 

          5. The Complainant and the GPA holder of the Complainant filed their affidavit evidence and additional affidavit evidence relying on Ex-A1 to A9 documents. The DW-1 of the Opposite parties filed their affidavit evidence and additional affidavit evidence relying on Ex-B1 to B4 documents. Written arguments were filed by both the parties. Both relied on reported decisions. Arguments were heard. Perused the records.       

 

                   

         

 

6. The consumer disputes that arise for consideration are as follows:

 

1. Whether the complainant establishes that not handing over of the possession of the flat no.311 at 2^nd floor of “O” block of “Ittina Mahavira complex” by the Opposite parties within the stipulated period of the sale agreement and for not providing the amenities amounts to deficiency in their service ?
2. To what order the parties are entitled ?

 

7. Answers to the above consumer disputes are as under:

1) Does not survive for consideration

2) As per final order – for the following      

 

REASONS

 

          8. Consumer Dispute No.1: The undisputed facts reveal that the Opposite parties/builders and developers had undertaken the housing project by name “Ittina Mahavira Complex” in five acres of land in survey no.101 & 156 of Doddajoguru, Beguru hobali. In response to their advertisement, the Complainant booked the flat no.311, measuring 1159 sqft. of 2^nd floor, ‘O’ block, through booking form/Ex-A2 dtd.07.07.15 by paying Rs.1 lakh advance amount towards the total sale consideration amount of Rs.20,17,000/-. Later he paid Rs.3,03,000/- and entered in to agreement to sell dtd.17.09.05 wide Ex-A3 agreeing to the number of terms & conditions mentioned therein.

 

9. The Complainant availed the housing loan from HDFC bank and arranged to pay the same stage wise as supported by the account extract/Ex-A4. He did the transaction through emails and attended the meeting of the builders with various proposed purchasers wide Ex-A5 & A6 to discuss about the difficulties of both the sides. Not satisfied with the progress of the construction work, he got issued the legal notice/Ex-A6 dtd.04.07.11 through registered post supported by postal receipt/Ex-A7 and postal acknowledgement/Ex-A8.

 

          10. During the pendency of this complaint, he got the possession of the said flat on payment of Rs.21,35,188/- as mentioned in Ex-A9/invoice dtd.19.07.13.

 

          11. Thereafter only the Complainant sought amendment and got inserted new three paras after the existing para no.14 in the pleadings, making allegations that occupancy certificate and assured amenities were not furnished even then after the flat was handed over to him by receiving excess Rs.205/- per sqft. and accordingly got amended the first prayer also and added the new prayer regarding the fresh claim of Rs.2,37,595/-, though not carried out in the original complaint.

 

          12. The Opposite parties, have relied on Ex-B1 to B4 documents, contending that after taking possession of the flat on 19.07.13, the Complainant has executed the affidavits and letter of undertakings wide Ex-B1, B2, B3 and the affidavit/Ex-B4 and hence, the allegations made in the complaint do not survive for consideration.

 

          13. The terms, conditions and the undertakings in the said four affidavits cum undertaking letters are as here under:

Ex-B1: 2. I, hereby, state that there is no liability from my side to Ittina Properties pvt. ltd., and there is no liability from Ittina Properties pvt. ltd., to me as on today or at any time in future.

 

          3. I have executed sale deed dtd.24.02.07 in continuation to agreement dtd.17.09.05 …………….

 

          5. I also collected the quantity and quality checklist and certify that I have checked for the quality and quantity compliance of the flat. I, hereby, state that I am satisfied and have taken the flat 311 of ‘O’ block in a very good and complete condition.

 

          6. I have received a sum of Rs.1,00,600/- as discount which will cover pre-EMI demands, compensation, damages, mental agony etc., and also cover any and all other expenses incurred by me because of the delay in handing over of the possession of the property. I am satisfied with this sum and have no more demands now or in any time future. The discount mentioned herein satisfies all my claims under the agreement of sale mentioned about. I undertake not to raise any further claim under any circumstances. If the discount mentioned herein NIL I undertake that I am not eligible for any discount and I will not claim any future compensation/damages/ discount etc., under any circumstances.

 

Ex-B2: para no.3 - I have collected vacant peaceful possession of the above mentioned flat wide possession papers dtd.19.07.13 and have been residing peacefully since 19.07.13…………..

 

 

14. Likewise through Ex-B3, he has undertaken to take care in maintaining the premises as per 1 to 18 instructions. In Ex-B4 also, he has undertaken to pay the common meters bills either directly or legally formed association and other maintenance of common amenities namely STP, swimming pool, gym, landscaping etc., shall be borne out by him or through legally formed association.

 

15. The contents of all the affidavits cum undertakings Ex-B1 to B4 clearly show that the Opposite parties/builders in continuation of their discussions in the meeting described in Ex-A5 compensated all the proposed purchasers by adding more amenities and making the project look highly posh and also showed concessions in the form of discounts also in their payments. Thereby the Complainant though had all grievances mentioned in this complaint of the year 2011 accepted the contents of Ex-B1 to B4 as the finality for the disputes/grievances. The result is that he accepted the discount shown in his payments amounting to Rs.1,00,600/- as the compensation and waived all his rights to proceed against the Opposite parties.

 

16. The Complainant had executed the sale deed 24.02.07, but had not disclosed the same in the complaint. His new prayer in the amended complaint towards return of excess paid amount of Rs.2,37,595/- not reflected in the original complaint even after amendment gets no value. Because of acceptance of the entire structures to his fullest satisfaction has no locus standi to claim the promised infrastructural facilities or the 21% interest as claimed. His claim for 21% interest from 2006 itself basically is barred by limitation and by virtue of Ex-B1 to B4 also it becomes not maintainable. In the result when the main prayers do not survive for consideration, the question of considering the compensation also does not arise. In the result the consumer dispute mentioned in the complaint, during the pendency of the complaint, by virtue of Ex-B1 to B4 did not survive for consideration and thereby the Consumer Dispute no.1 is answered accordingly.  

 

17. Consumer Dispute No.2: In view of findings of the Consumer Dispute No.1, the Complainant deserves to get the following:

 

ORDER

 

          The CC.No.1558/2011 filed by the Complainant is hereby dismissed. No order as to costs.

 

          Supply free copy of this order to both the parties. 

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 24^th October of 2017).

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(VASANTHKUMAR.H.Y)  PRESIDENT

                                                                        

Copies of Documents marked on behalf of Complainant/s:

 

Ex-A1	GPA dtd.08.08.11
Ex-A2	Booking form dtd.07.07.05
Ex-A3	Sale agreement dtd.17.09.05
Ex-A4	Loan statement
Ex-A5	MOM
Ex-A6	Legal notice dtd.04.07.11
Ex-A7	3 Postal receipts
Ex-A8	3 postal acknowledgements
Ex-A9	Tax invoice dtd.19.07.13

 

Copies of Documents marked on behalf of Opposite party/s

 

Ex-B1 to B3	Affidavit cum letter of undertaking dtd.19.07.13 – 3 in numbers
Ex-B4	Original affidavit dtd.19.07.13

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(VASANTHKUMAR.H.Y)  PRESIDENT