Complaint filed on: 25-07-2011
Disposed on: 30-08-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1515/2012
DATED THIS THE 30th AUGUST 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainants: -
1. Mr.A.Dhananjaya,
Aged about 50 years,
S/o. Mr.R.K.A.Subrahmanya
2. Mrs.Sudha Dhananjaya
Aged about 48 years,
Both are R/at Flat no.57,
Sunita Building,
Cuffe Parade,
Mumbai-05
V/s
Opposite parties: -
1. M/s. Chaitanya Properties Pvt. Ltd, Company incorporated under the Companies Act,
Registered office: The Shantiniketan, Whitefield Road,
Mahadevapura P.O., Bangalore
2. M/s. Prestige Estates Projects Ltd, Company incorporated under the Companies Act, The Falcon House, No.1, Main Guard Cross Road, Bangalore-01
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainants against the OPs no.1 and 2, under section 12 of the Consumer Protection Act, praying to pass an order, directing the Ops to hand over the apartment no.11112 alongwith car parking space in the basement, to pay Rs.15,44,046=00 being delay in construction and delay in handing over the apartment, to pay Rs.10,000=00 towards expenses incurred and to pay compensation of Rs.2,00,000=00 towards deficiency of service and mental agony.
2. After filing the complaint, we have heard the arguments of the learned counsel for the complainant regarding maintainability of the complaint at the stage of admission. We have gone through the averment of the complaint and documents placed before the forum. The document no.1 is the copy of letter of OP no.2 dated 8-1-2007 in the name of complainant no.1 informing that, apartment no.11112 has been reserved in the name of the complainant for Rs.55,87,200=00 and they received Rs.5,00,000=00 from the complainant no.1. The document no.2 is the copy of agreement to sell dated 20-2-2007 executed between the complainant no.1 and OPs no.1 and 2 and both parties are abide by the terms and conditions of agreement to sell and on page no.15 of the said document at Sl.No.26 under heading of Specific Performance and Arbitration, it is stated that, in the event of default by the sellers, the purchaser is entitled to enforce specific performance of this contract, and in the event of breach of the terms of this agreement to sell, the same shall be referred to a sole arbitrator to be appointed by the builder and his award shall be final. The document no.5 is the copy of letter issued to complainant no.1 by OPs dated 20-4-2009, stating that, his apartment will be ready to hand over in the month of December 2009. The copy of statement of accounts of the complainant produced by the complainant discloses that, as on 30-6-2009 the complainant is liable to pay a sum of Rs.1,39,680=00 plus maintenance charges of Rs.57,135=00. The document no.9 is the copy of letter of OP no.1 dated 27-2-2012 issued in the name of complainant calling upon him to send an amount of Rs.4,87,000=00 towards stamp duty, registration and legal charges through cheque. Having made careful scrutiny of the said documents of complainant as mentioned supra. Onething is crystal clear that, the sale deed is not yet executed in the name of complainant as amount of Rs.4,87,000=00 was not paid by the complainant towards stamp duty, registration and legal charges. As per terms and conditions of agreement to sell, it is made amply clear that, if there is any default on the part of the seller as per agreement, the buyer is having right to enforce the contract by specific performance of contract. Unless and until, the registered sale deed is executed by the OPs in the name of the complainant, the question of asking delivery of possession of the apartment alongwith car parking area as prayed in the complaint does not arise at all. So in order to execute the proper sale deed, the appropriate remedy left to the complainant is to file the civil suit for specific performance of the contract against the OPs before the Civil Court and enforce the contract and ventilate his grievance and not by filing the present complaint under section 12 of the CP Act. So looking to the present case of the complainant, on the back ground of relevant documents, namely copies of agreement to sell between the parties, various correspondences and the fact of the non-execution of registered sale deed by the OPs together with the prayer of the complainants made in the complaint, we are of the considered opinion that, the complainants have to file the civil suit before the Civil Court for specific performance of the contract and get relief as prayed in the complaint and not by filing the present complaint under section 12 of the CP Act, and as such, we hold that, the present complaint of the complainant is not maintainable under CP Act. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is dismissed, as not maintainable. So, under the circumstance, parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 30th day of August 2012.
MEMBER MEMBER PRESIDENT
