Date of Filing : 06.07.2021

Date of Disposal : 09.07.2021

 

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

 

DATED: 09th JULY 2021

 

PRESENT

 

HON’BLE Mr. JUSTICE HULUVADI G. RAMESH : PRESIDENT

 

Mr KRISHNAMURTHY B. SANGANNANAVAR: JUDICIAL MEMBER

 

Mrs DIVYASHREE M: LADY MEMBER

 

APPEAL NO.499/2021

 

Smt. Thilagavathi

W/o Balaraman Jayachandran

Aged about 45 years

Residing at No.31

Terracon Residency

Kithaganahalli Main Road

Near Govt. Primary School

Bommasnadra

Bengaluru-99      Appellant

(By Mr.S.Rupesh Kumar)                                                                                                        

-Versus-

M/s Nisarga Builders

Corporate Office

No.37/1, 2nd Floor

Brigade Road Cross

Next to United Bank

Bangalore-560 001

Rep. by its Proprietor

Mr.R.Krishna                                         Respondent                                                                                                        

   -:ORDER:-

 

Mr. JUSTICE HULUVADI G. RAMESH : PRESIDENT

 

1. This is an Appeal filed under Section 41 of Consumer Protection Act, 2019 by the Complainant aggrieved by the Order dated 26.03.2021 passed in Consumer Complaint No.248/2021 by III Additional District Consumer Disputes Redressal Commission, Bengaluru.

2. The brief facts of the case is that, Complainant being induced by the advertisements & promises made by OP, he intended to purchase residential apartment bearing No.G-21 in the Ground Floor of Nisarga Gateway project built in Sy No 102 measuring 1 Acre 8 Guntas and admeasuring in Sy No 104 1 Acre 30 Guntas situated at Chandapura Village, Attibele Hobli, Anekal Taluk, Bengaluru Urban District having super built up area of 729 sq. ft and proportionate share in the common area along with one covered car parking space in the Basement Floor, together with an un-divided share, right and interest of 226 Sq Ft for a total sale consideration amount of Rs.26,24,388/-, upon verification & scrutiny of the title documents and agreeing to be paid in prescribed instalments.  Thereafter, on 18.08.2010 the Complainant and the OP entered into an Agreement to Sell with detailed Terms & Conditions and also Business Agreement for constructions over a period of 15 years for construction of the Apartment and same can be used as Service Apartment/Transit Apartment on daily/weekly/fortnight or monthly basis.  On 01.07.2013,OP executed a Registered Sale Deed in favour of the Complainant after receipt of the entire sale consideration amount of Rs.26,24,388/-, agreeing to hand over & deliver the possession after completion of the construction.   Thereafter, the Complainant sent several letters to the OP for completion & handing over of the Apartment but, OP did not complete the construction of the Apartment and failed to hand over the Apartment and kept on postponing the same on one pretext or the other and demanded for payment of an additional Rs.42,875/- on 09.09.2015.  The Complainant objected to the demand of OP and requested for payment of excess amount of Rs.98,050/-.  However, OP convened a General Body Meeting of all the intended beneficiaries of the Apartment Complex on 11.05.2016, but he has not allowed the Complainant to address his grievance.  When OP refuse to hand over the keys of the Apartment  owned by him, he got issued a Legal Notice to OP on 06.06.2016 demanding for handing over possession of the Apartment, but, OP neither complied with the demands made therein nor replied to the Notice.  Hence, alleging deficiency in service & unfair trade practice committed by the OP, lodged Complaint which was admitted as CC No.1107/2016 and during the course of proceedings, as per IA filed under Order VII Rule 7 of CPC by the Complainant, Commission below permitted to withdraw the Complaint.  Subsequently, the Complainant lodged a fresh Complaint, which was registered as CC No 248/2021 as the pecuniary jurisdiction of the subject matter is within the jurisdiction of the District Commission, Bengaluru.  On 17.12.2020, the District Commission Dismissed the Complaint on the point of Limitation as well as Jurisdiction.

4. Aggrieved by this, the Complainant is in Appeal seeking to  afford an opportunity to file an Application for Condonation of Delay in filing the Consumer Complaint which was registered as CC No 248/2021 and to contest the same on merits.

5. Heard the arguments of the Appellant.

6. Perused the Records & the Impugned Order, wherein the  District Commission has returned the Complaint on the ground of pecuniary jurisdiction.  It is also observed that as on the Date of Dismissal of the Complaint, there is a subsisting Cause of Action to file the Complaint, as the OP has not delivered the committed Apartment to the Complainant.  In the circumstances, as per Section 35 of CP, Act, 2019, the District Commission has inherent pecuniary jurisdiction to decide the case. We also direct that the District Commission shall permit the Complainant to file his Application for Condonation of Delay in filing the fresh Complaint.

In view of the aforesaid reasons, Appeal No.499/2021 is allowed.  Consequently, Impugned Order dated 26.03.2021 passed in Consumer Complaint No.248/2021 by III Additional District Consumer Disputes Redressal Commission, Bengaluru is hereby set aside and matter is remanded to the District Commission to dispose-of the matter in accordance with Law on point of limitation, as well as on merits, within 3 months from the date of receipt of this Order.

 

 

7. Send a copy of this Order to the District Commission as well as to the parties concerned, immediately.

 

Lady Member Judicial Member                    President

 

*s