C.C. filed on: 06-04-2009 <br /> Disposed on: 21-06-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT <br /> NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.832/2009<br /> DATED THIS THE 21st JUNE 2010<br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> <br /> SRI.GANGANARASAIAH., MEMBER<br /> <br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> <br /> Between:<br /> 1. Saradindu Misra <br /> S/o Sri.Dipen Kumar Misra<br /> Aged about 31 years,<br /> 2. Soma Misra W/o. Saradindu Misra<br /> Aged about 25 years, Complainants <br /> Both residing at<br /> No.C-407, Abby Apartment, LBS Nagar,<br /> HAL post, 8th main, <br /> Bangalore -17<br /> <br /> AND<br /> <br /> M/s. Orchha Hotels, <br /> Resorts & Residences Pvt. Ltd, <br /> A company having its <br /> Registered office at No.1054, Opposite party <br /> 7th Main, III Block, Koramangala,<br /> Bangalore-34, Represented by<br /> It’s Directors. <br /> <br /> O R D E R <br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> The grievance of the complainants against the OP in brief is, that they had booked a residential Apartment for purchase bearing No> BL -403 3rd Floor, in Block ‘B’ to be completed by the OP on or before July 2008 called as “Ittina Anu”. The OP had agreed to sell that flat for a consideration of Rs.35 Lakhs inclusive of Vat etc., and agreed to deliver possession of that flat on or before July 2008. That on 10-5-2008 they made a payment of Rs.25,000/- to the OP and a Agreement of Sale was executed on 9/6/2008 by the OP. The OP had agreed to handover possession on or before July 2008, also agreed to pay interest at 12% p.a. for every month of delay in handing over possession to them. In the event of any delay in handing over possession within the agreed period the OP could have requested them to extend time in writing not exceeding 30 days. That they had a right of terminating the agreement and were entitled for refund of money with interest at 12% p.a. That the OP had issued a letter dated: 9-6-2008, that the flat agreed to be sold is free from all encumbrances. That they have obtained housing loan from BHW Home Finance on 23-6-2008 and because of the delay in completing the construction the bank which financed is seeking certain clarification with regard to the sale of flat and issue of NOC. That they have till date paid Rs.33,25,000/- to the OP on different dates, that they believing OP that the Apartment will be ready by July 2008, they shifted from Mumbai to Bangalore and had to stay in a rented premises since the OP did not complete the construction and deliver possession. That the OP had also agreed to provide parking area and other common facilities. That they got the sale deed executed getting title deed of the Apartment transferred on 26-6-2008. The OP through an e-mail on the same day promised to complete the pending works. That the OP is liable to repay their travel charges of Rs.32,750/-, arrange to change the Khatha and liable to pay electricity charges, that they received a notice from Karur Vysya Bank that the apartment purchased by them is already mortgaged in their favour by the OP. Then they through legal notice demanded refund of their paid money and the OP informed them that all the pending works will be completed by end of November 2008 and told them to come over to Bangalore from Mumbai, but because of the delay they had to pay Rs.28,664/- towards rent as they had to stay in a rented premises from January 2008 till date and have paid EMI’s of Rs.30,919/- towards the loan. They have also incurred expenditure amounting to Rs.48,290/- towards maintenance fee, Association entry fee, transfer fee and electricity fee. They have paid Rs.1,50,000/- towards car parking facility, but the OP has caused deficiency in not providing facilities as detailed in Para -18 of the complaint. Therefore has prayed for a direction to OP to complete the construction and handover possession of the flat, to allot separate covered car parking or to refund Rs.1,50,000/- as the cost of car parking area, to transfer Khatha and electricity meter to their name, to issue NOC from Karur Vysya Bank to them, to pay agreed interest at Rs12% p.a. paid up amount, amounting to Rs.2,99,250/-, to pay Rs.29,664/- and Rs.20,782/- towards the loss of rents, to pay Rs.81,040/- the expenditure incurred towards maintenance, Association entry fee, transfer fee etc., and to pay Rs.2 Lakhs for deficiency in his service and cost.<br /> <br /> 2. Op has appeared through his Advocate and filed version contending that complaint is not maintainable, the reliefs sought by the complainants can not be granted. OP has admitted to had agreed to sell a flat as stated by the complainant for a consideration of Rs.35 Lakhs and stated that the complainant is still due in a sum of Rs.1,86,318/- to him. OP has also admitted to have executed the Sale Deed in respect of the flat agreed to be sold in favour of the complainant. The OP further denying all other allegations of the complainants has stated that the complainants when started using the Apartment become liable to pay maintenance and other charges that shows they are in possession of the Flat. That after conveying title of the flat in favour of the complainants they are not entitled for refund of any money and thereby has prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the 1st complainant and one Manu for the OP have filed their affidavit evidence reproducing what they have narrated in their respective complaint and version. The complainant along with the complaint has produced copy of booking form, copy of Agreement of Sale, copy of the Sale Deed, and copies of few e-mail correspondences with a copy of a receipt evidencing payment made in favour of owner’s association. OP has also produced copies of those documents and few e-mail correspondences. We have heard the counsel for the complainant and perused written arguments filed by the OP. <br /> <br /> 4. On going through the above contentions following points for determination arise.<br /> 1. Whether the complainants prove that the OP is deficient in causing delay in delivering possession of the flat and is liable to pay damages as claimed in the complaint?<br /> 2. To what reliefs, the complainants are entitled to?<br /> <br /> 5. Our findings are as under:<br /> 1. Answer Point No.1: In the negative <br /> 2. Answer Point No.2: To see the final order.<br /> <br /> REASONS<br /> <br /> 6. Answer Point No.1: In the course of arguments, the counsel appearing for the complainants submitted though they have claimed possession of the flat in the 1st relief claimed in the complaint, but subsequent to the filing of this complaint admitted that the complainants have taken over possession of the flat and therefore their prayer for delivery of possession do not survive and submitted to this Forum to grant the remaining reliefs. The complainants have admitted and ofcourse there is no dispute that the OP had agreed to complete the construction on or before July 2008 and deliver possession of flat in favour of the complainants on or before that date. But the OP has conceded that construction could not be completed on or before July 2008 and as the result possession was also not given by that date. But the parties have admitted that the OP executed registered Sale Deed in favour of the complainants on 26-6-2008 transferring title of the flat in favour of the complainants further promising to complete the pending works. Though the counsel for the complainant in his arguments on 11-5-2010 submitted that the complainants took possession of the flat on 7-6-2009, but has not produced any documents in proof of it, But the OP since has not disputed, we do not wish to go at length on that issue. The learned counsel for the complainant therefore submitted that he will confine himself to the other reliefs he has sought the complaint. Parties have produced copy of the agreement and copy of sale deed. We have gone through the contents of the agreement and also the sale deed and bowrn in mind those conditions. With the contents of both the documents we shall now refer to claims made by the complainant so far as the other reliefs are concerned. The 2nd prayer for the complainant is for providing car parking place or in the alternative directing the OP to refund Rs.1,50,000/-. As admitted by the complainants themselves consideration of the sold was fixed at Rs.35 Lakhs whereas the complainants themselves through out have stated that they have paid only Rs.33,25,000/-. OP also claimed that the complainants have not paid the balance amount of Rs.1,86,318/-, therefore the complainants who have conceded to have paid only Rs.33,25,000/- and having not paid the balance amount can not claim car parking facility or in the alternative for refund of Rs.1,50,000/-. Then coming to 3rd relief directing the OP to transfer Khatha and electricity the complainants here should bear in their mind that on the basis of the registered document and other ancillary documents they should take up with the authority concerned for transfer of Khatha and electricity meter. It is not in hands of the OP to transfer them. It is not the complainant’s case that the OP is not co-operating with them in getting these documents in their name. Therefore the complainants without any such allegations against the OP can not seek transfer of documents from the OP. Then coming to the 4th relief regarding issue of NOC from Karur Vysya Bank to the complainants. The complainants are not clear as to what they really intended to. In the body of the complaint, it is stated that Karur Vysya Bank informed the complainants that the property sold to them has already been mortgaged to them. If that is so, the complainant shall have to workout for the reliefs elsewhere and not before this Forum because of the fact that the sale deed has already been executed in their favour. <br /> <br /> 7. Then coming to the 5th direction to direct the OP to pay interest at 12% p.a. on Rs.33,25,000/- amounting to Rs.2,99,250/- based on Clause 8 of the agreement, the complainants and the counsel for them are in our view are trying to mislead or to misrepresent fact before this Forum. Appropriate clause of the agreement of sale is Clause 7 and not Clause 8. Clause 7 provides that purchaser in the event of not able to get possession of the flat within the agreed period is given the right of terminating the agreement and to recover all the amounts paid by them with interest at 12% p.a. and none of the provisions of this agreement provide for payment of 12% on the paid up amount to the complainants in the event of not delivering possession within the agreed period. Therefore we find no provision in the agreement to force the claim of the complainants, as such the complainants are not entitled for 5th relief also. Then coming to the 6th relief regarding re-imbursement of rentals they had paid, the complainants have again not substantiated the said claim, that means, the complainants have not produced any material to show that they were on occupation of a rented premises and paid so much of rent and the period of occupation as tenants. Further in the agreement we do not find any condition or covenant wherein the OP had agreed to pay rentals in the event of failure to deliver possession of the flat. Then coming to the 7th relief, regarding refund of Rs,81,040/- towards maintenance fee, Association entry fee, transfer fee and electricity fee, here we are constrained to tell to the complainants that as soon as they take over possession of the flat they are bound to pay maintenance fee to the Association of Owners after they become members of that association, Association entry fee is to be paid by them, consumption of electricity charges is their liability and transfer fee which is unexplained can not be charged on the OP. The complainants have not come forward to convince this Forum as how the OP is liable to pay those charges when those charges were incurred by them in their interest and for their benefit. The last relief of awarding 2 Lakhs as compensation towards deficiency of service stands no where, in view of the fact that, that the complainant after obtaining the Sale Deed got the pending work done entered into the flat, taken possession during pendency of this complainant and thereafter not raised any question of deficiency in the service of Op and have not proved any such deficiency thereafter. The counsel for the complainant invited or attention to an E-mail sent by to first complainant on 12-9-2008 but one Hariharan of the OP group stated that the complainant had claimed in all Rs.54,620/- consisting of maintenance fee, association entry fee, transfer fee etc. for which that Hariharan sent reply through E-mail on 12-10-2008 agreeing to reimburse the money from the company excepting transfer fee and association entry fee and stated that OP is liable to pay the remaining amount has claimed in the earlier E-mail. But this letter of the complainant itself clues that as on that day the complainant did not claim any other relief except the amount claimed in that letter. But the complainants thereafter have come up with these reliefs which are baseless. Though Hariharan shown to have committed to get the other fee paid but for the reasons we have stated above the complainants are not entitled for the reliefs. Therefore the claims of the complainants in our view for the above reasons are not established and therefore we find no merits in the complaint and the same is liable to be dismissed. As the result, we answer Point No-1 in the negative and pass the following order.<br /> <br /> <br /> <br /> <br /> ORDER<br /> <br /> Complaint is dismissed. Parties to bear their own costs.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open Forum on this the 21st June 2010.<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT <br /> <br /> <br />