M/S. Ambiience Projects. V/S Mandar Shrikant Katkar - Consumer Court Case

Karnataka

Bangalore Urban

CC/09/2547

Mandar Shrikant Katkar - Complainant(s)

Versus

M/S. Ambiience Projects. - Opp.Party(s)

12 Nov 2009

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/09/2547

Mandar Shrikant Katkar Mrs, Vaishali Mandar Katkar,						...........Appellant(s)
Vs.
M/S. Ambiience Projects. Himanshu Girish Kothari Khemaraj Lalit Jain						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 30.10.2009 DISPOSED ON: 28.07.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 28TH JULY 2010 PRESENT:- SRI.B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT NOs.2547/2009,2548/2009, 2549/2009 & 2550/2009 COMPLAINT NO.2547/2009 COMPLAINANTS COMPLAINT NO.2548/2009 COMPLAINANT COMPLAINT NO.2549/2009 COMPLAINANTS COMPLAINT NO.2550/2009 COMPLAINANTS 1. Mandar Shrikant Katkar, S/o Shrikant Madhav Katkar Aged about 37 years, 2. Mrs. Vaishali Mandar Katkar, W/o Mandar Shrikant Katkar, Aged about 36 years, Both residing at B-207 Abmience Diva, Opposite Total Mall, Sarjapur Road, Bangalore-560 103. Mr. Balwinder Singh Salaria, S/o Wazir Singh Salaria, Aged about 34 years, Residing at # 306, III Floor Ambience Diva, Ambalipura Village Varthur Hobli, Bangalore South Taluk 1. Abhishek Tyagi, S/o Ashok Kumar Tyagi Aged about 34 years, 2. Mrs. Parag Tyagi W/o Abhishek Tyagi, Aged about 31 years, Both residing at # A-168, 17th C Main, Koramangala Bangalore - 560 095. 1. Vipin Gupta, S/o Chhotelal Gupta, Aged about 40 years. 2. Mrs. Sarita Gupta, W/o Vipin Gupta, Aged about 37 years. Both residing at Flat No. 201, Phase 3, golden Park Apartments, Golden Nagar, Kodichikkanahalli, Bangalore-560 076. Advocate Sri.S.Shaker Shetty OPPOSITE PARTIES V/s 1. M/s. Ambience Projects, A registered partnership firm having its office at # 91, 60 feet Road, VI Block, Koramangala, Bangalore 560 095. By its Managing Partner. 2. Himanshu Shah 3. Khemraj 4. Girish Kothari 5. Lalit Jain Age and fathers name of opponents 2 to 5 not known to the complainant. All are at # 91, 60 feet road, VI Block, Koramangala, Bangalore 560 095. O R D E R SMT. M. YASHODHAMMA, MEMBER These are the four complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to provide all the basic amenities, facilities as promised under the construction agreement and pay penalty and a compensation of Rs.5,00,000/- and for such other reliefs on an allegations of deficiency in service. As the opposite parties in all the complaints are common, the question involved, relief claimed being the same, in the interest of justice, in order to avoid repetition of facts and multiciplity of reasoning, these five cases stand disposed of by this common order. The brief averments, as could be seen from the contents of the complaints, are as under: 2. OP-1 is the partnership firm; OP-2 to OP-5 are partners of OP-1. OP-1 firm is engaged in real estate development. Each one of these complainants purchased the flat from OP in their project AMBIENCE DIVA. The details of flat number, construction agreement, date of sale deed, penalty payable, penalty claimed and legal notice is given in a chart below for the sake of convenience to avoid the repetition. Sl No. Complaint No. Flat No. Date of Construction agreement Date of Saledeed Penalty payable from Penalty claimed Rs. Legal Notice 1) 2547/09 207 17.06.2006 15.07.06 04.12.06 3,25,720/- 26.01.08 2) 2548/09 306 22.09.2005 26.03.07 31.10.09 3,53,090/- 26.01.08 3) 2549/08 509 24.06.2005 03.03.07 04.12.06 2,34,090/- 26.01.08 4) 2550/09 703 28.09.2005 08.03.07 04.12.06 1,23,420/- 26.01.08 It is the contention of each one of these complainants that they being lured away with the advertisement and propaganda issued by the OP who claims to be the builders and promoters of multistoried flat in and around Bangalore thought of purchasing the flat of their choice and paid the lump sum amount as claimed by the OP. Though OP allotted them the flat and executed the sale deed including the construction agreement but thereafter some how failed to provide the basic amenities and facilities as promised under the brochure as well as the construction agreement. OP undertook to pay the penalty in default of non-compliance of the terms and conditions of the construction agreement but failed to adhere to the said promise. For no fault of these complainants they were made to suffer both mental agony and financial loss. When their repeated requests and demands went in futile they got issued the legal notice. Again there was no response. Though OP promised to complete the said construction within 22 months and provide all the basic amenities, facilities with a perfect construction but failed to keep up its promise. Complainants were forced to invoke the penalty provision noted in the construction agreement and made demand. Again there was no response. Hence complainants felt deficiency in service and unfair trade practice on the part of the OP. Under such circumstances they are advised to file these complaints and sought for the reliefs accordingly. 3. On admission and registration of the complaint, notices were sent to the OP. The RPAD covers retuned unserved. Complainant took notice by way of paper. Inspite of paper publication OPs remained absent without any sufficient reason or cause. The absence of the OP does not appear to be as bona fide and reasonable. Hence OPs are placed Ex-parte. 4. In order to substantiate the complaint averments, each one of these complainants have filed their respective affidavit evidence and produced their documents. OP didnt participate in the proceedings. Then the arguments were heard. 5. It is the case of complainants that they being lured away with the advertisement and propaganda issued by the OP who claims to be the developers and builders of multistoried residential flats in and around Bangalore thought of purchasing a flat of their choice in the project AMBIENCE DIVA. The fact that they paid the entire flat value as claimed by the OP and thereafter OP executed the registered sale deed in their favour with respect to the respective flats as noted in the chart mentioned. OP also executed a construction agreement referred to in the chart with respect to each one of these complainants. The OP promised to complete the said project with best construction providing all the basic amenities and facilities within 22 months from the date of agreement. 6. The evidence of these complainants finds full corroboration with the contents of the undisputed documents. There is nothing to discard their sworn testimony. It is a quality of evidence that is more important than that of the quantity. As it is there is no personal ill will or grudge between the complainant and the OP. Though OP collected huge amount with respect to the said flats referred to above, it appears OP failed to provide the basic amenities and facilities as promised under the construction agreement even till today. The photographs and other documents produced by the complainants goes to show that the construction is not up to the mark, nor it is inconsonance with the terms and conditions incorporated under the construction agreement. Under such circumstances naturally though each one of these complainants have invested their huge hard earned money they are unable to reap the fruits of their investment. Naturally they must have suffered both mental agony and financial loss. 7. The allegations of the complainants that there is a poor plumbing, damaged drainage facilities, water seepage, defective electrical wire, non completion of the club house, garden, childrens play area, swimming pool, landscaping are the few examples shown by the complainants with regard to non completion of the project as promised under the sale deed as well as construction agreement. We are satisfied that complainants are able to prove the deficiency in service on the part of the OP. When that is so, they are naturally entitled for certain relief. 8. The construction agreement terms and conditions and the clause mentioned there in specifically discloses that if OP is failed to complete the said construction as per the terms of construction agreement well within the stipulated time OP is liable to pay the penalty at the rate of Rs.5/- per square feet of super built-up area with respect to the individual flat. That is the amount the complainants have claimed by way of penalty from the respective dates. The non appearance of the OP even after the due service of the notice leads us to draw an inference that OP admits all the allegations made by the complainants in their complaints. When there is a penalty clause in the construction agreement naturally OP is bound to follow the said terms and conditions. Viewed from any angle having taken note of the facts and circumstances of the case in the interest of justice we find these are the fit cases wherein complainants deserves the relief as claimed to some extent. With these reasons we proceed to pass the following: O R D E R Complaints are allowed in part. 1) In complaint No.2547/2009, OPs are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 17.06.2006 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months, OPs are directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded. 2) In complaint No.2548/2009, OPs are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 22.09.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OPs are directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded. 3) In complaint No.2549/2009, OPs are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 24.06.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OPs are directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded. 4) In complaint No.2550/2009, OPs are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 28.09.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OPs are directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded. This original order shall be kept in the file of the complaint No.2547/2009 and a copy of it shall be placed in other respective files. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of July 2010.) PRESIDENT MEMBER MEMBER gm.

COMPLAINT FILED: 30.10.2009 DISPOSED ON: 28.07.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 28TH JULY 2010 PRESENT:- SRI.B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT NOs.2547/2009,2548/2009, 2549/2009 & 2550/2009 COMPLAINT NO.2547/2009 COMPLAINANTS COMPLAINT NO.2548/2009 COMPLAINANT COMPLAINT NO.2549/2009 COMPLAINANTS COMPLAINT NO.2550/2009 COMPLAINANTS 1. Mandar Shrikant Katkar, S/o Shrikant Madhav Katkar Aged about 37 years, 2. Mrs. Vaishali Mandar Katkar, W/o Mandar Shrikant Katkar, Aged about 36 years, Both residing at B-207 Abmience Diva, Opposite Total Mall, Sarjapur Road, Bangalore-560 103. Mr. Balwinder Singh Salaria, S/o Wazir Singh Salaria, Aged about 34 years, Residing at # 306, III Floor Ambience Diva, Ambalipura Village Varthur Hobli, Bangalore South Taluk 1. Abhishek Tyagi, S/o Ashok Kumar Tyagi Aged about 34 years, 2. Mrs. Parag Tyagi W/o Abhishek Tyagi, Aged about 31 years, Both residing at # A-168, 17th C Main, Koramangala Bangalore - 560 095. 1. Vipin Gupta, S/o Chhotelal Gupta, Aged about 40 years. 2. Mrs. Sarita Gupta, W/o Vipin Gupta, Aged about 37 years. Both residing at Flat No. 201, Phase 3, golden Park Apartments, Golden Nagar, Kodichikkanahalli, Bangalore-560 076. Advocate Sri.S.Shaker Shetty OPPOSITE PARTIES V/s 1. M/s. Ambience Projects, A registered partnership firm having its office at # 91, 60 feet Road, VI Block, Koramangala, Bangalore 560 095. By its Managing Partner. 2. Himanshu Shah 3. Khemraj 4. Girish Kothari 5. Lalit Jain Age and fathers name of opponents 2 to 5 not known to the complainant. All are at # 91, 60 feet road, VI Block, Koramangala, Bangalore 560 095. O R D E R SMT. M. YASHODHAMMA, MEMBER These are the four complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to provide all the basic amenities, facilities as promised under the construction agreement and pay penalty and a compensation of Rs.5,00,000/- and for such other reliefs on an allegations of deficiency in service. As the opposite parties in all the complaints are common, the question involved, relief claimed being the same, in the interest of justice, in order to avoid repetition of facts and multiciplity of reasoning, these five cases stand disposed of by this common order. The brief averments, as could be seen from the contents of the complaints, are as under: 2. OP-1 is the partnership firm; OP-2 to OP-5 are partners of OP-1. OP-1 firm is engaged in real estate development. Each one of these complainants purchased the flat from OP in their project AMBIENCE DIVA. The details of flat number, construction agreement, date of sale deed, penalty payable, penalty claimed and legal notice is given in a chart below for the sake of convenience to avoid the repetition. Sl No. Complaint No. Flat No. Date of Construction agreement Date of Saledeed Penalty payable from Penalty claimed Rs. Legal Notice 1) 2547/09 207 17.06.2006 15.07.06 04.12.06 3,25,720/- 26.01.08 2) 2548/09 306 22.09.2005 26.03.07 31.10.09 3,53,090/- 26.01.08 3) 2549/08 509 24.06.2005 03.03.07 04.12.06 2,34,090/- 26.01.08 4) 2550/09 703 28.09.2005 08.03.07 04.12.06 1,23,420/- 26.01.08 It is the contention of each one of these complainants that they being lured away with the advertisement and propaganda issued by the OP who claims to be the builders and promoters of multistoried flat in and around Bangalore thought of purchasing the flat of their choice and paid the lump sum amount as claimed by the OP. Though OP allotted them the flat and executed the sale deed including the construction agreement but thereafter some how failed to provide the basic amenities and facilities as promised under the brochure as well as the construction agreement. OP undertook to pay the penalty in default of non-compliance of the terms and conditions of the construction agreement but failed to adhere to the said promise. For no fault of these complainants they were made to suffer both mental agony and financial loss. When their repeated requests and demands went in futile they got issued the legal notice. Again there was no response. Though OP promised to complete the said construction within 22 months and provide all the basic amenities, facilities with a perfect construction but failed to keep up its promise. Complainants were forced to invoke the penalty provision noted in the construction agreement and made demand. Again there was no response. Hence complainants felt deficiency in service and unfair trade practice on the part of the OP. Under such circumstances they are advised to file these complaints and sought for the reliefs accordingly. 3. On admission and registration of the complaint, notices were sent to the OP. The RPAD covers retuned unserved. Complainant took notice by way of paper. Inspite of paper publication OPs remained absent without any sufficient reason or cause. The absence of the OP does not appear to be as bona fide and reasonable. Hence OPs are placed Ex-parte. 4. In order to substantiate the complaint averments, each one of these complainants have filed their respective affidavit evidence and produced their documents. OP didnt participate in the proceedings. Then the arguments were heard. 5. It is the case of complainants that they being lured away with the advertisement and propaganda issued by the OP who claims to be the developers and builders of multistoried residential flats in and around Bangalore thought of purchasing a flat of their choice in the project AMBIENCE DIVA. The fact that they paid the entire flat value as claimed by the OP and thereafter OP executed the registered sale deed in their favour with respect to the respective flats as noted in the chart mentioned. OP also executed a construction agreement referred to in the chart with respect to each one of these complainants. The OP promised to complete the said project with best construction providing all the basic amenities and facilities within 22 months from the date of agreement. 6. The evidence of these complainants finds full corroboration with the contents of the undisputed documents. There is nothing to discard their sworn testimony. It is a quality of evidence that is more important than that of the quantity. As it is there is no personal ill will or grudge between the complainant and the OP. Though OP collected huge amount with respect to the said flats referred to above, it appears OP failed to provide the basic amenities and facilities as promised under the construction agreement even till today. The photographs and other documents produced by the complainants goes to show that the construction is not up to the mark, nor it is inconsonance with the terms and conditions incorporated under the construction agreement. Under such circumstances naturally though each one of these complainants have invested their huge hard earned money they are unable to reap the fruits of their investment. Naturally they must have suffered both mental agony and financial loss. 7. The allegations of the complainants that there is a poor plumbing, damaged drainage facilities, water seepage, defective electrical wire, non completion of the club house, garden, childrens play area, swimming pool, landscaping are the few examples shown by the complainants with regard to non completion of the project as promised under the sale deed as well as construction agreement. We are satisfied that complainants are able to prove the deficiency in service on the part of the OP. When that is so, they are naturally entitled for certain relief. 8. The construction agreement terms and conditions and the clause mentioned there in specifically discloses that if OP is failed to complete the said construction as per the terms of construction agreement well within the stipulated time OP is liable to pay the penalty at the rate of Rs.5/- per square feet of super built-up area with respect to the individual flat. That is the amount the complainants have claimed by way of penalty from the respective dates. The non appearance of the OP even after the due service of the notice leads us to draw an inference that OP admits all the allegations made by the complainants in their complaints. When there is a penalty clause in the construction agreement naturally OP is bound to follow the said terms and conditions. Viewed from any angle having taken note of the facts and circumstances of the case in the interest of justice we find these are the fit cases wherein complainants deserves the relief as claimed to some extent. With these reasons we proceed to pass the following: O R D E R Complaints are allowed in part. 1) In complaint No.2547/2009, OPs are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 17.06.2006 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months, OPs are directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded. 2) In complaint No.2548/2009, OPs are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 22.09.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OPs are directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded. 3) In complaint No.2549/2009, OPs are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 24.06.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OPs are directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded. 4) In complaint No.2550/2009, OPs are directed to provide all the basic amenities and facilities as promised under the construction agreement dated 28.09.2005 within two months from the date of communication of this order and pay a compensation of Rs.50,000/- towards the mental agony and monetary loss suffered by the complainant along with litigation cost of Rs.1,000/-. In default of compliance of the said order within two months OPs are directed to pay a penalty at the rate Rs.5/- per square feet super built-up area per month after the expiry of two months till the date of compliance along with compensation and litigation cost awarded. This original order shall be kept in the file of the complaint No.2547/2009 and a copy of it shall be placed in other respective files. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of July 2010.) PRESIDENT MEMBER MEMBER gm.