BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; BELGAUM.
DATE: 31/8/2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 102/2016
Complainant/s: Shri Rajmohan Sutrave S/oPanduranga
Sutrave ,Age;56years,Occ;Service
R/o:C/o;Soot No.04,Lignton Bundlow
14-Beet,Ooti-643001,Tamilnadu.
(By Shri S.B.Anchatageri, Advocate)
v/s
Respondent/s:1) Dilip M Mohite,
Age 40 years,Proprietor,
Of M/S Sunshine Constructions &
Developeres,R/o:F-1Shetty Chambers,
Above Airtel,Sangam Circle,Dharwad
(By Shri B.C.Guddadamath, Advocate)
- Shri Prabhakar S/o;Vishnu Patil,
Age;66 years, Occ;Agriculture & Business
R/o;Salgar Chawl,Line Bazar,Dharwad
Now R/o:At post:Shigli,Tq;Shirahatti,
Dist.Gadag-582210
(Exparte)
O R D E R
By: Smt.M.Vijayalakshmi, : Member
1. The complainant has filed this complaint against the respondents directed to complete the all works in Flat No.4 of “Annapurna Apartment” as per agreement and to execute the Sale Deed in favour of complainant and Rs;5,00,000/- as compensation for mental agony along with Rs;10,000/- as cost of the proceedings.
Brief facts of the case are as under:
2. The case of the complainant is that, the complainant is working as an engineer in Tamilanadu , and his relatives are residing at Dharwad City so he has planned after his retirement , to have a dream house in order to have a peaceful life in Dharwad city for this reason he was searching for information regarding housing developer . At that time in the month of January 2011 , complainant approached R-1 ,that the R-1 told that he is General power of attorney holder of R-2, the R-2 is the owner of the property bearing No. City Survey No.272/2A, City survey No.272/2B City Survey No.272/3 and also constructing Apartment by name “Annapurna Heights” at Linebazar, Salgar Chawal ,Dharwad in the property of R-2. The complainant enquired the same after negotiation complainant booked one flat bearing No.4 in the second floor measuring 988 Sq.feet, in the said R-1 and R-2s apartment for total consideration amount of Rs; 12,00,000/- . That the R-1 being the proprietor of M/S. Sunshine Constructions & Developers and being the GPA holder of R-2, executed register agreement of sale of flat No.4 in complainant favour on 18/8/2011 and later correction deed was made for the same and R-1 promised the complainant that the said Apartment will be completed in one year and flat will be handed over within one year from the date of said sale agreement. Believing on R-1 words complainant paid advance of Rs;1,00,000/- at the time of said Registration of Agreement of sale and R-1 had also assured the complainant that he will give all facilities like Car Parking, Column structure with standard Amenities, windows, doors, Toilet, Bathroom, Electrical works, 24 hrs water supply, Solar Water heater , lift ,generator facility, inclusive of all registration charges and also with completion certificate by August 2012. That R-1 also given details of the construction in prescribed Format at the time of said sale agreement.
3. After one year complainant visited the said apartment during that time he was surprised to see that the said apartment flat construction was not completed. Hence the complainant approached the respondent-1 and enquired about the same. But he assured the complainant construction work will be completed within 2 to 5 months and will be handed over above said flat to complainant. By believing his words, after 3-5 months the complainant visited the apartment to check the construction works. He was shocked the construction work not even started. The complainant met R-1 and discussed above, R-1 stated that due to some financial problem the work is not started and R-1 asked the complainant about remaining balance money and complainant paid the same as and when the R-1 demanded. Till to this day the complainant has paid Rs:11,00,000 to R1.
4. Complainant repeated approached R-1 to complete the construction works and to execute the flat No.4. Hence the R-1 has executed another one consent deed in favour of complainant on 15/9/2015. In the said deed R-1 has agreed he has received an amount of Rs;11,00,000 out of total consideration amount of Rs:12,00,000/- from complainant and R-1 agreed to complete remaining construction work of the said apartment and hand over by 31/1/2016. Thereafter he did not execute the deed in favour of the complainant by receiving the balance amount. Complainant kept ready of the balance amount and waiting for the sale deed of Flat No.4. But R-1 till today not completed complainants flat and not executed the sale deed. Hence the acts of the R-1 and R-2 amounts deficiency in service. Thereafter complainant approached R-1 but he not bothered to complainant request, therefore the complainant issued legal notice toR-1 and R-2 through his advocate on 29/2/2016 calling upon them to complete the said apartment within 15 days from the receipt of the notice. The said notice duly served on R-1 on 3/3/2016 while R-2 not claimed the notice. Despite of the service of the said notice the R-1 and R-2 not complete the works. Hence complainant filed this complaint against the respondents.
5. After filing the complaint the notice issued by this Forum to respondents. R-1 appeared while notice sent to R2 returned left not known and not found. Hence complainant had taken steps for paper publication. Even this also the R-2 remained absent. Hence exparte proceedings initiated against the R-2. In the written Version of R-1 contended that, the very complaint filed by the complainant is not maintainable either in law or on facts and to dismiss the complaint. The contents of the complaint denied by the respondent and further contended that put the complainant to strict proof of the same. The transaction between the party to the complainant is a commercial transaction and complainant not come under deficiency of service. Hence this Hon’ble forum has no jurisdiction to try this complaint. The complainant if he has any grievance in respect of transaction he has to approach the Civil Court, which is having competent jurisdiction to try the dispute. Further contending that the R-1 is the GPA holder of the R-2 hence the complainant be put to strict proof of the same. The allegations of the complaint are all denied, but the complainant has paid Rs;11,00,000/- admitted, the construction work was not completed due to the financial problem. Further contended that it is false to say that there was no progress in construction work. It is hereby submitted that there is construction work going on, but due to the financial difficulties, the construction was not completed. The complainant is not entitle for any damages which is mentioned in the complaint and there is no mala fide, knowing deliberately and intentionally not to complete construction work, and there is no deficiency of service. Hence there is no cause of action arose to the complainant to file this complaint. R-1 is admitted that he is a GPA holder of R-2 the complainant booked the flat in the Apartment by name Annapurna Heights, at Linebazar, Salgar chawal, Dharwad, in CTS No. 272/2A, 272/2Band 272/3 which is belong to R-2. The complainant booked in the above said apartment and paid the advance amount. The apartment constructions have started in the said area, but due to financial difficulties the construction was not completed. After completion of the construction work the flat will be handed over to the complainant by completing the all the legal formalities. There is no bad intention on the part of the R-1 to cheat the complainant or anybody the flat will be constructed as per the undertaking and deliver same to the complainant after the completion of the said apartment. No deficiency in service on the part of respondents. Hence Respondent-1 prays for above said grounds dismissal of the complaint.
6. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved there was deficiency of service on the part of the respondents?
- Whether the complainant is entitle to the relief as claimed ?
- To what relief the complainant is entitled ?
Complainant has filed his affidavit along with documents and citations. Respondent has filed his written version and affidavit. Argument of complainant is heard. Argument of R-1 taken as heard.
Finding on points is as under.
- In positive
- In positive but accordingly
- As per order
Reasons
Points 1 and 3
7. Complainant has filed this complaint against the respondents, complainant has booked one flat but respondent not completed the construction work and not execute the sale deed, hence there is deficiency in service of the respondents. Hence complainant prays for respondents are directed to complete the construction work of the Apartment and to execute sale deed of complainant’s flat, along with compensation and cost of the proceedings.
8. In support of case complainant has produced original sale agreement and consent deed. On perusal of the documents ie., Sale Agreement dated 18/08/2011. It shows the parties entered into agreement for sale of flat to the complainant. The Complainant and respondent both the parties agreed to made a agreement, it shows complainant has booked one flat in the Respondents Apartment by name ‘Annapurna Heights’’ at Line Bazar, Salagar Chawal, Dharwad in CTS No.272/2A,272/2B and 272/3 Second floor flat No.4 built up area is 988 Sq.feet . On 18/8/2011 complainant paid advance amount of Rs;1,00,000/-. Thereafter complainant and respondent made a consent deed dtd.15/9/2015 it shows that complainant paid Rs;11,00,000/- to the R-1 and respondent -1 also admitted that said amount and agreed to complete the construction work of the above said flat within 31/1/2016 . Total consideration amount of flat is Rs;12,00,000/-. On 18/7/2014 complainant and respondent made a correction deed ,it shows 1st floor RCC flat No.4 built up area is 988 Sq.feet. 1/9th share of property. It is correction on 18/7/2014 correction Deed shows that 2nd floor RCC flat No.4 Built up area 988 Sq.feet 1/10th of Share property. Both the parties admitted said correction. Main allegation of complainant is that the complainant paid Rs;11,00,000/- to the R-1 . R-1 is not completed the flat and not execute the sale deed. Complainant request several times to R-1 through legal notice but R-1 not responded, hence the complainant filed this complaint against the respondents. R-1 is the Proprietor, builder of the above said apartment and he is the General Power Attorney Holder of R-2. R-2 is the owner of the property bearing CTS No.272/2A to 272/2B and 272/3. But complainant or respondents says R-2 is the owner of the property, about this no document was produced. Respondent No.1 says that he is the General Power Holder of R-2 about this respondent R.1 also not produced any documents. R-2 also not appeared before the forum even after paper publication. He is the owner of the property and he is given a GPA to the R-1. About this no document was produced before the forum. Hence as per Sale Agreement R-1 and R-2 are jointly and severally liable to this transaction.
9. Respondent No.1 in his written version contended that, this transaction is commercial transaction hence this Hon’ble court has no jurisdiction try this compliant. But on perusal of the documents complainant purchased said flat for residential purpose, this is not a commercial purpose. Therefore said transaction is not a commercial transaction. The flat was booked by the complaisant for the purpose of having a shelter over his head and not for the purpose of earning money. As per Sec. 3 of the C.P.Act this forum has jurisdiction to entertain this complaint. The complainant paid the consideration amount for flat, hence the complainant is a consumer.
10. Respondent No.1 has also admitted that Complainant paid Rs;11,000,00/- but due to financial difficult the construction work was not completed . But respondent made a ground to financial difficulty, is not complainant problem, that is his problem. Hence on that ground respondent not completed the construction work and not hand over the possession of the flat to the complainant is not proper. Because complainant paid 95% of amount to the respondent-1 but he is still empty handed. Hence respondent duty is to complete the construction work of the complainant flat and execute Sale Deed in favour of complainant name taking a balance amount of consideration amount of flat. Complainant has produced photos of the flat , it shows electric switch boards, doors , windows , lift ,stare case ,water facilities , not properly completed but respondent construct work is going on , but as per agreement and consent deed he is not completed in stipulated period , hence it is deficiency of service on the part of respondents. Hence complainant is entitled to compensation and cost of the proceedings. But the respondent-1 in his written version admitted that, he is constructed and complete the work thereafter hand over to complainant. The R-1 utilize the money for construct of building, hence compensation and cost amount awarded is reasonable. The complainant relied citation i.e. 2015 CJ 366 NC. The Hon’ble national commission held that complainants are entitled to possession of flats and execution of titled deed of flats in favour of complainant and 12% simple Interest awarded to complainant. But in this present case respondent already suffered financially. Hence reasonable compensation and cost awarded is proper.
11. The agreement is binding both the parties. The term requiring due diligence by the builder is more important for the owner than the stipulation that time is of the essence of the contract. The contractor under the building contract is obliged to complete the work, the entire work as stipulated with in the time stipulated if time is of the essence of the contract. It is not only that his liability is to complete the entire work by the stipulated date , but to maintain continues steady progress of the work during the process and the builder would be require to complete with in reasonable time.
12. In view of the discussions made and decision arrived we hold Issue No.1 and 2 affirmatively and accordingly.
Point No: 3: In view of the finding on points 1, 2 and 3 proceeded to pass the following
ORDER
The complaint is allowed in part .The Respondent No.1 & 2 are jointly and severally directed to complete the construction works of complainant flat as per the agreement and directed to execute the sale deed in favour of complainant after receiving the balance amount of Rs;1,00,000/- and pay Rs; 2000/- to the complainant towards the compensation along with Rs;1000/- towards cost of the proceedings within 3 months from the date of this order.
(Dictated to steno, transcribed by her and edited by us and pronounced in the open Forum on this day on 31st day of August 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
GDB
