Date of Filing:18.06.2008<br /> Date of Order:14.11.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 11TH DAY OF NOVEMBER 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 1346 OF 2008<br /> <br /> <br /> 1. Mandar Chitale,<br /> S/o J.N. Chitale<br /> <br /> 2. Mrs. Rakhi Kadam,<br /> W/o Mandar Chitale.<br /> <br /> Both R/at No. 304, II Floor,<br /> “Ambience Diva”, No. 14/15, <br /> Ambalipura Village,<br /> Opp: Spring fields Apartments,<br /> Varthur Hobli, Sarjapura Road,<br /> Bangalore. Complainants<br /> <br /> <br /> COMPLAINT NO: 1347 OF 2008<br /> <br /> <br /> 1. Mrs. Chaya S.B,<br /> W/o Mr. Renjith Kumar.P,<br /> <br /> 2. Mr. Ranjith Kumar. P,<br /> S/o Ponnappa. R,<br /> <br /> Both R/at No. A 502, V Floor,<br /> “Ambience Diva”, No. 14/15, <br /> Ambalipura Village,<br /> Opp: Spring fields Apartments,<br /> Varthur Hobli, Sarjapura Road,<br /> Bangalore. Complainants<br /> <br /> <br /> <br /> COMPLAINT NO: 1348OF 2008<br /> <br /> 1. Dr. Hasit Mehta,<br /> S/o Dr. R.T. Mehta,<br /> <br /> 2. Dr. Jasmine Mehta,<br /> S/o Dr. Hasit Mehta,<br /> <br /> Both R/at No. A 301, III Floor,<br /> “Ambience Diva”, No. 14/15, <br /> Ambalipura Village,<br /> Opp: Spring fields Apartments,<br /> Varthur Hobli, Sarjapura Road,<br /> Bangalore. Complainants<br /> <br /> COMPLAINT NO: 1349 OF 2008<br /> <br /> 1. Nirmal Abraham,<br /> S/o Sri. M.C. Abraham,<br /> <br /> 2. Mrs. Annu Elsa Varthese,<br /> W/o Nirmal Abraham,<br /> <br /> Both R/at No. C 209, II Floor,<br /> “Ambience Diva”, No. 14/15, <br /> Ambalipura Village,<br /> Opp: Spring fields Apartments,<br /> Varthur Hobli, Sarjapura Road,<br /> Bangalore. Complainants<br /> v/s<br /> <br /> 1. M/s Ambience Projects, <br /> A registered Partnership Firm<br /> having its office at No.91,<br /> 60 feet road, VI Block,<br /> Koramangala,<br /> Bangalore-560 095,<br /> By its Managing Partner,<br /> <br /> 2. Himanshu Shah<br /> <br /> 3. Khemraj<br /> <br /> <br /> 4. Girish Kothari<br /> <br /> <br /> 5. Lalit Jain<br /> <br /> Age and Fathers name of opponents 2 to 5 <br /> are not known to the complainant.<br /> All are at No.91, 60 feet road,<br /> VI Block, Koramangala,<br /> Bangalore-560 095. Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> These four complaints are clubbed together for passing common order since the opposite party is one and the same and the facts and law points involved in these four complaints are also one and the same. <br /> <br /> The respective complainants have filed complaints U/Sec.12 of the Consumer Protection Act, 1986.<br /> <br /> The brief facts of the case are that the opposite party No.1 is a partnership firm engaged in real estate development. Opposite party No.2 to 5 are its partners. The complainants entered into agreements for the purchase of undivided interest in the land in the said layout. They have also entered into construction agreements with the opposite parties along with various amenities/facilities as promised. The amenities as promised at the time of marketing the layout were enumerated in the construction agreement. The cost of the apartment included cost of construction of apartment and cost towards various amenities. The provision of amenities remained only on paper. The complainants have prayed individual parking space as per the sale deed but parking spaces have not been provided by the opposite parties. The opposite parties have to pay penalty for delay in completion of the works. The delay in implementation of the amenities at layout has caused immense mental, emotional and financial agony to the complainants. Similarly, the club house has not been completed. Children’s play area and swimming pool have not been set up. The apartment owners have caused legal notice dated 26/01/2008 and the same was served on the opposite parties. Therefore, the complainants have prayed that opposite party be directed to provide amenities/facilities as promised under the construction agreement within a reasonable time, alternatively the owners of the apartment may be permitted to execute and complete the amenities/facilities as recorded in the construction agreements with a direction to the opposite parties to bear the cost of such works and the complainants have also sought opposite parties may be directed to pay penalty with interest and compensation for mental agony. <br /> 2. Notices were issued to opposite parties by RPAD. Notices were served. Opposite party No.3 Khemraj appeared in person on 28/07/2008 before this Forum and he prayed time to engage Advocate. Case was adjourned to 28/08/2008. On that date complainants were present and the opposite parties have not present. The case posted for filing Vakalath and defense version to 17/09/2008. When the case was called on 17/09/2008 Advocate for the complainant was present, opposite party No.1 to 5 were not present. Vakalath not filed and defense version also not filed. Therefore, the opposite party No.1 to 5 were placed exparte by order dated 17/09/2008. Case was adjourned to 25/09/2008 and on that date affidavit evidence of complainant filed. Thereafter, arguments are heard and the matter was taken for orders.<br /> <br /> REASONS<br /> 3. The case made out by the complainants have gone unchallenged. The opposite parties have not appeared and contested the matter even though served with notice. The opposite parties have not even cared to send defense version by post. There is nothing to disbelieve the facts stated in the affidavit of the respective complainants. The complainants have sought prayer alternatively that they may be permitted to carry out requisite work collectively so as to provide amenities/facilities as recorded in the respective construction agreements with a direction to the opposite parties to bear the cost of such works. No problem in granting this relief to the complainants. The owners of the apartments will be free to complete the unfinished works and to provide amenities/facilities to the apartments as per the construction agreements and after execution of the work the owners of the apartments have to recover the amount spent by them from the opposite parties by giving proper account, documents, estimate, report and work done certificate in proof of the execution of the requisite works carried on for providing amenities/facilities. Without execution of works and spending amount in these complaints no direction can be issued to the opposite parties to bear the cost of such works. It is up to the complainants first execute the work collectively, keep the account, documents and then recover the amount spent by them from the opposite parties by filing separate complaints before Consumer Forum or before Civil Court. The complainants have prayed that opposite parties be directed to pay penalty with interest for delay in completion of the work. It is the case of the complainant that penalty was payable at the rate of Rs.5/- per square feet of super built up area every month. Payment of penalty is for a definite sum if the agreement provides for payment of penalty the complainants will be liberty to recover the penalty amount from the opposite parties by filing civil suit. Non-payment of penalty does not amount to deficiency in service. Therefore, the Consumer Forum will not be having jurisdiction to order for payment of penalty. Moreover the question of payment of penalty cannot be decided in the summary proceeding before this Forum that question requires to be gone into in detail and it requires proper evidence and proof. The complainants will be at liberty to prove before the Civil Court and claim penalty amount from the opposite parties. Therefore, it is not proper, fair and just for us to decide the question of payment of penalty as claimed by the complainants. The complainants have prayed Rs.5,00,000/- as compensation for mental agony. Taking into consideration of all the facts and circumstances of the case, it is not a case to grant of compensation for mental agony. Taking into consideration of the facts stated in the complaints the prayer of the complainants that they may be permitted to execute and carry out the unfinished works collectively as per the respective construction agreements can be allowed. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 4. All the five complaints are partly allowed. The respective complainants are free to execute and carry out unfinished works and provide facilities/amenities to the apartments at their own costs and then recover the amount spent by them from the opposite parties. The complainants have to keep proper account, documents, estimates and they are at liberty to recover the amount spent by them from the opposite parties either by filing civil suit or filing complaint before the District Consumer Forum.<br /> 5. The respective complainants are entitled to Rs.5,000/- towards costs of the present proceedings from the opposite parties. <br /> <br /> 6. Keep the copy of the order in connected complaints. <br /> <br /> 7. Send the copy of this Order to the parties free of costs as a statutory requirement. <br /> <br /> 8. Pronounced in the Open Forum on this 14TH DAY OF NOVEMBER-2008. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> Rhr<br />