THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 14th DAY OF MAY, 2024
Complaint NO.190/2020
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, MEMBER
Smt.Mamatha Srinivas,
W/o Dr.Srinivas,
Aged about 42 years,
Residing at No.207, ...Complainant/s
10th D Main, 1st Block,
Jayanagar, Bengaluru-560 011
(By Sri.Rajesh.A, Advocate)
-Versus-
1. M/s. SLV Concretes,
A Partnership Firm,
Having its office at
No.183/2, Singhena Agrahara
Village, Fruit Market Road,
Sarjapura Hobli, Near Gold
Coin Club, Anekal Taluk,
Bengaluru- 560 100 ...Opposite party/s
And also at No.9,
Stance, 39th Cross,
4th T Block, Jayanagar,
Bengaluru – 560 011
Represented by its Managing
Partner Sri.M.Maniraju,
2. Sri.M.Maniraju,
Managing Partner
And
3. Sri.Ashok, Partner,
Both are at M/s SLV Concretes
A Partnership Firm,
Having its office,
At No.183/2, Singhena
Agrahara Village,
Fruit Market Road,
Sarjapura Hobli, Near Gold
Coin Club, Anekal Taluk,
Bengaluru- 560 100
And also at No.9,
Stance, 39th Cross,
4th T Block, Jayanagar,
Bengaluru – 560 011
(OP Nos.1to3-by.Sri.T.K.Rajagopal, Advocate)
O R D E R
BY SRI RAVI SHANKAR, JUDICIAL MEMBER
The complaint is filed by the complainant alleging deficiency in service against the Opposite Parties and prays to direct the OPs to deliver the complainant’s 44% of the constructed area with 44% car parking area, 44% garden area, 44% in terrace of the apartment premises; to pay a sum of Rs.5,28,00,000/-towards bank interest of the selling price of the share of the agreement; to pay a sum of Rs.5,00,000/- for not delivering the complainant’s 44% of the constructed area with 44% car parking, 44% garden area, 44% in terrace of the apartment premises within the stipulated period as per registered joint development agreement and to pay Rs.50,000/- toward litigation cost and miscellaneous expenses.
2. The brief fact of the complaint is that, the Opposite Party No.1 is the partnership firm and the Opposite Party No.2 and 3 are the partners of the Opposite Party No.1 firm. They are looking the day to day affairs of the Opposite Party No.1 firm as a partner as well as authorized signatories of the Opposite Party No.1 firm.
The complainant further submits that, she is the absolute owner of lawful possession of properties as shown below;
- All that piece and parcel of residential converted land in Sy.No.13/1 situated at Kammasandra village, Attibele hobli, Anekal Taluk, Bengaluru District measuring 12 guntas which was acquired under registered sale deed dated 10-7-2014 executed by Sri.Chinnaswamy, registered as document No.1671 of 2014-15, book 1, stored in CD No.ANKD375, in the office of the Sub-Registrar, Attibele in respect of schedule property.
- All that piece and parcel of residential converted land in Sy.No.13/1 situated at Kammasandra village, Attibele hobli, Anekal Taluk, Bengaluru District measuring 14 ¼ guntas which was acquired under registered sale deed dated 20-2-2014 executed by M.Muniraju, registered as document No.6906 of 2013-14, book 1, stored in CD No.ABLD191, in the office of the Sub-Registrar, Attibele in respect of schedule property.
- All that piece and parcel of residential converted land in Sy.No.13/5 situated at Kammasandra village, Attibele hobli, Anekal Taluk, Bengaluru District measuring 6.03 guntas which was acquired under registered sale deed dated 10-7-2014 executed by Sri.Chinnaswamy, registered as document No.1670 of 2014-15, book 1, stored in CD No.ANKD375, in the office of the Sub-Registrar, Attibele in respect of schedule property.
- All that piece and parcel of residential converted land in Sy.No.14/1 situated at Kammasandra village, Attibele hobli, Anekal Taluk, Bengaluru District measuring 01 guntas which was acquired under registered sale deed dated 23-4-2014 executed by Sri.R.Venkatesh, registered as document No.256 of 2014-15, book 1, stored in CD No.ANKD370, in the office of the Sub-Registrar, Attibele in respect of schedule property.
- All that piece and parcel of residential converted land in Sy.No.14/1 situated at Kammasandra village, Attibele hobli, Anekal Taluk, Bengaluru District measuring 12 guntas which was acquired under registered sale deed dated 23-4-2014 executed by Sri.Chinnaswamy, registered as document No.258 of 2014-15, book 1, stored in CD No.ANKD370, in the office of the Sub-Registrar, Attibele in respect of schedule property.
The complainant further submits that, the Opposite Party No.2 and 3 have approached the complainant being a Managing Partner/Partner of M/s.S.L.V.Concretes/Opposite Party No.1 during the month of May, 2016 as a builder/service provider. The Opposite Party Nos.2 and 3 have undertaken to develop the aforesaid properties in terms of the registered Joint Development Agreement dated 13.6.2016 executed between the complainant and Opposite Parties partnership firm.
The complainant further submits that, the Opposite Party Nos.2 and 3 mentioned that they would be undertaking the construction of the multistoried residential apartment and the OPs offered to the complainant 44% of the super built up of constructed apartment together with common area/facilities, basement car parking space, free from all claims in the complex along with the terrace area over the complex to the constructed on schedule property shall also be shared between the parties.
The complainant further submits that, the delivery schedule in terms of clauses 9 stipulated that, the OPs were required to comply with the terms of Joint Development Agreement that they shall deliver 44% of the constructed area with 44% car parking area, 44% garden area, 44% in terrace were required to be delivered by OPs to complainant within 24 months from the date of execution and registration of the Joint Development Agreement and General Power of Attorney dated 13-6-2016 with an option either to extend the time for another six months to OPs for completion of the construction work in all aspects and deliver the same to the complainant.
The complainant further submits that, as per the clause 9 (a), the complainant has extended the time for another six months, but the OPs have failed and neglected to complete the construction work as agreed in the Joint Development Agreement dated 13-6-2016.
The complainant further submits that, as per the clause 9 (a), (b) and (c), the complainant is entitled to step in as Developer to complete the construction of unfinished her share at her cost either by her personally or through the third party nominee. However in such circumstances, the OPs shall pay all the costs, damages etc. as claimed by the complainant for completion of unfinished her work and the OPs shall provide maximum co-operation to the complainant or her nominee/s for completion of the unfinished complainant’s share and the OPs have undertakes as per clause 9 (c) to pay to the complainant, the bank interest in the selling price of the complainant’s share from the date of either complainant step-in as a developer as agreed above or on the expiry of the six month grace period that would be given to OPs to complete the project at the discretion of the OPs.
The complainant further submits that, the OPs have not fulfilled their obligations under the Joint Development Agreement and thereby committed breach. Therefore the complainant being a lady is not in position to step in as developer at this stage, hence call upon the OPs to comply with the terms of the Joint Development Agreement as per clause 9 (c). After giving sufficient time to the OPs even expiry of the grace period of six months, the complainant tried to contact the OPs, but it was turned in vain. Having no other alternative, the complainant got issued legal notice dated 15.7.2019 calling upon the OPs to deliver the apartment premises as per the registered Joint Development Agreement. Inspite of receipt of the said notice, the OPs have failed and neglected to hand over the same to the complainant. The act and omission of the OPs amounts to deficiency in service under the CP Act. Hence, this complaint.
3. After service of notice, the Opposite Parties appeared through their counsel and filed common written statement and contended that for all the delay in completing the construction of the flats on the complainant’s schedule properties is solely attributable to one or the other problem created by the complainant.
The OPs further contended that as per the recitals contained in the Joint Development Agreement dated 13.6.2016, the period stipulated is two years from the date of the said Joint Development Agreement which fell on 13.6.2018 and according to the further stipulation automatically the period stands extended by six months and as such the same fell on 13.12.2018 and the said stipulation could not be met for the following reasons solely attributable to acts of the complainant.
The OPs further contended that the basic requirement in order to undertake the construction of the flat is providing of the land by the complainant (44% of the total extent of 1 acre 6 guntas) and the complainant gave the commitment to provide the said extent of the land constituting a mandatory commitment to undertake the construction of the flats, but that commitment the complainant did not keep up.
The OPs further contended that the land in Sy.No.13/1 measuring 26 ¼ guntas out of 1 acre 29 guntas under litigation in OS No.396/2014 and OS No.472/2014 both on the file of the Senior Civil Judge, Anekal. The complainant acquired ownership of the land in Sy.No.13/1 measuring 26½ guntas (12 guntas + 14 ½ guntas) as per sale deeds dated 10.7.2014 and 20.2.2014. The complainant suppressed the facts of the said lands being under litigation in the said suits.
The OPs further contended that the complainant to enable the OPs to undertake the construction of the flats on the complainant schedule properties obtained plan and license on 26.10.2015 much earlier to the Joint Development Agreement dated 13.6.2016. The OPs displayed their eagerness to undertake construction of the flats on the complainant schedule properties and started the ground work on the complainant schedule properties on 4.7.2016 but the plaintiffs in the said suits virtually caused obstruction to the ongoing work as a result of that the entire construction work came to a grinding halt on 1.7.2016 and the complainant herself advised the OPs to wait till the settlement of the said suits.
The OPs further contended that, the officials of BMRDA served the notice on the complainant on 21-11-2016 to stop all construction on the complainant schedule lands till the settlement takes place in the said suits.
The OPs further contended that, the OPs had lot of problems to secure the labour force. The OPs without any loss of time resumed the construction on the complainant schedule lands in the first week of April, 2018 in right earnest and by that time, the time stipulated in Joint Development Agreement date 13.6.2016 had run its course for 22 months which is solely attributable to the acts of the complainant.
The OPs further contended that, on 13-8-2018 one Sri.S.Chinnaswamy issued notice to the complainant and the OPs alleging that the cheques issued by the complainant towards the sale consideration amount got bounced a sum of Rs.9,27,000,000/- out of total consideration amount of Rs.12,27,00,000/- and the said S.Chinnaswamy started to create hell a lot of problems in the complainant schedule land and informed the Opposite Party that till such time the cheque amount of Rs.9,27,000/- was paid by the complainant and he would not allow further construction on the site, as a result of this, the construction once again stood stopped. Further said S.Chinnaswamy filed a criminal case under Section 138 of N.I.Act before the Court of Principal Civil Judge and JMFC, Anekal is still pending in the JMFC court, Anekal.
The OPs further contended that, the construction work on the complainant schedule properties stood completely stopped from March, 2020 to Dec, 2021 which is borne out by the frequent lockdown imposed by the Government of Karnataka. Further the OPs contended that the RERA was kind enough to provide some sort of relief to the builders by extending the time for construction of flats upto May,2022. In view of the frequent stoppage of the construction work for the reasons stated above, the OPs could not take up construction work in the stipulated period of 30 months and that 30 months period naturally is required to be extended and if that is so the OPs are capable of meeting the extended target of 10 months that ends in April, 2023 and this assurance is based on the fact that the percentage of present construction is around 70% and the remaining 30% the OPs undertake to complete in all respects and the flats would be ready for occupation on or before April, 2023. In view of the above, there is no deficiency of service and as such the complaint deserves to be treated as frivolous and vexatious. Hence, the Opposite Parties prays to dismiss the complaint.
4. The complainant has filed evidence affidavit and marked documents as Exs.P1 to P5 and Opposite Parties have filed their evidence affidavit and marked documents as Exs.R1 to R18. Both parties have filed their written arguments.
5. Heard the arguments from both sides.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complainant proved deficiency in service on the part of Opposite Parties?
(2) Whether the complainant is entitled to the reliefs as sought?
(3) What Order?
7. The findings to the above points are;
(1) In the affirmative
(2) Partly affirmative
(3) As per final order
R E A S O N S
Point Nos.1 and 2:-
8. On perusal of the pleadings, affidavits and documents produced by both parties, it is not in dispute that, the OPs and complainant entered into Joint Development Agreement, wherein the OPs agreed to construct the apartment within 24 months from the date of execution of the Joint Development Agreement dated 13.6.2016 and extended period of six months. As per the agreement, the OPs agreed to deliver 44% of the terrace of the apartment premises and lost remains with the OPs. After the execution of the agreement of Joint Development, the complainant alleges that, the OPs have not completed the project as per the agreed period of two years and extended period of six months. The said periods end on 13-12-2018 inspite of that the OPs have not delivered the possession of the 44% of the terrace area as per the agreement and issued legal notice dated 15-7-2019 called upon the OPs to deliver the terrace of the apartment premises and also sought for compensation as per the agreement.
9. On the other hand, the OPs have contended in their version and affidavit that, the delay is not intentional but for bonafide reason such as there was a suit pending before the Anekal Senior Civil Judge vide OS No.396/2014 and OS No.472/2014 wherein the previous owner of the said land have disputed the transfer of the said land to the complainant herself. Apart from that, the seller who had sold the property to the complainant had interfered with the construction spot and alleged that, the complainant had not paid the entire consideration amount to him, in this regard had made lot of problems in the schedule land where the Opposite Parties started construction. The said person had alleged that, the complainant issued cheque for Rs.9,27,00.000/- as a total consideration amount and the said cheque was bounced and until the said amount was realized or paid, he had not permitted to proceed with the construction, thereby there is delay in construction of the entire apartments as agreed, hence submits there is no deficiency in service.
10. The complainant had produced Joint Development Agreement dated 13.6.2016 marked as Ex.C1. Legal notice issued to the OPs dated 15-7-2019 marked as Ex.C3 and unserved postal acknowledgement marked as Ex.C4.
11. On perusal of the Joint Development Agreement, the OPs agreed to deliver the apartment i.e. 44% of the terrace area to the complainant within 24 months and with extended period of six months. But it is an admitted fact that, the OPs had not delivered the apartment as agreed. The reasons assigned by the OPs along with documents produced are considered as just and reasonable. The OPs had produced nearly Ex.R1 to R18 to show, how the delay was occurred that he had produced the order sheet of the OS in complaint No.472/2014 with respect to the schedule property marked as Ex.R1 and another order sheet in OS No.397/2014 with respect to the partition suit of the schedule property. The notice issued by the Anekal Planning Authority marked as Ex.R3 wherein we noticed the said authority had not provided the license and approved plan for the purpose of construction and legal notice issued by one Smt.Chinnamma to the to the Joint Director and Member Secretary, Urban and Rural Planning, Anekal Planning Authority dated 18-10-2016 for not granting a license for construction of the apartment in the schedule property, since there was a partition suit was pending. Apart from that, another legal notice was also issued with respect to the bounce of the cheque issued by the complainant in the name of complainant herself marked as Ex.R5 and reply to the said legal notice marked as Ex.R6. The order sheet in OS No.506/2022 filed by the complainant herself marked as Ex.R7 which reflects that the complainant had initiated the original proceedings before the Civil Court for injunction against these OPs for not alienating any of the apartments in the A and C schedule property. The Certified copy of the order on IA filed by complainant under Order 39 Rule 1 and 2 r/w Section 151 of CPC, before the Civil Judge Court, Anekal in OS No.497/2022 marked as Ex.R8 wherein the said Court has dismissed the said IA filed by the complainant. The letter issued by the OPs for sanction of the loan from KSFC to these OPs marked as Exs.R10 to 11 and show cause notice issued by the KSFC to these Opposite Party marked as Ex.R12 wherein the said KSFC has called for explanation for sanction of the loan amount and other documents to show the reason for delay in not constructing the apartments well within time as agreed in the agreement.
12. We are of the opinion that, when there was Civil Suit was pending with respect to the schedule property and the person who had sold the property to the complainant had raised the problems in the schedule premises during the course of construction and notice issued by the Anekal Planning Authority with respect to the non sanction of the plan are all the multiple reason which caused for delay in construction.
13. On the other hand the complainant had not countered all these contention made by the OPs. Instead of that, the complainant had filed their affidavit claimed for such huge compensation for delay. The delay if any was on the part of the OPs was only for bonafide reason and not intentional. When there is negligence/and non co-operation on the side of complainant herself. The penalty clause cannot be invoked. Anyhow during the course of arguments, the learned advocate for complainant submits that, the apartments are ready for delivery subject to payment of compensation and learned advocate for OPs also suggested for delivery of the apartment to the complainant but denied for payment of the compensation.
14. Considering the submission made by both parties and upon the documents produced, we have come to the conclusion that the OPs are liable to pay compensation of Rs.6.00 lakhs to the complainant for deficiency in service and at the same time, the OPs are liable to handover the possession of 44% of the terrace property as agreed and the OPs also liable to pay litigation expenses of Rs.25,000/- to the complainant. As such the complaint filed by the complainant is hereby allowed.
15. Point No.3: In view of above discussion, we proceed to pass the following:-
O R D E R
The complaint filed by the complainant is partly allowed with litigation cost of Rs.25,000/- to the complainant.
The Opposite Parties are directed to handover the possession of 44% of the terrace property with all portions as agreed in the registered Joint Development Agreement to the complainant.
Further the Opposite Parties are directed to pay compensation of Rs.6.00 lakhs to the complainant for deficiency in service and mental agony.
Further the Opposite Parties are directed to comply the above order within 30 days from the date of receipt of this order. Failing which, the payable amount shall carry interest @10% p.a. from the date of default till realization.
Send a copy of this order to both parties.
MEMBER JUDICIAL MEMBER
Jrk/
