Complaint filed on: 21-08-2012
Disposed on: 06-09-2012
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.1676/2012
DATED THIS THE 6th SEPTEMBER 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainants: -
1. Gopal Jagadish Purohit
S/o. Jagadish T.Purohit,
Aged about 41 years
2. Bhavana Gopal Purohit
W/o. Gopal Jagadish Purohit
Aged about 40 years
Both are R/at A-201
Aishwarya Serenity,
Old Airport Road,
Bangalore-34
V/s
Opposite party: -
M/s. Golden Gate Properties Ltd,
No.820, 1st Floor, 80 feet road,
Koramangala, Bangalore-95
Reptd by its Managing Director/
Director
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act’1986, praying to pass an order, directing the OP to pay 18% interest on Rs.17,43,454=00 from 20-8-2010 till the date of delivery of the constructed villa, to pay Rs.6,932=00 per month from September 2011 to till the date of delivery of the villa, to pay cost of the legal proceedings including the cost of the legal notices etc., and to pay Rs.5,00,000=00 as compensation for mental agony, distress and harassment and cost of litigation.
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 produced by the complainants.
3. It is the specific case of the complainants in the complaint that, after having entered into the relevant agreements, they have paid Rs.17,43,454=00 out of Rs.36,58,263=00 towards constructed villa, and time was the essence of the agreement of construction, and the OP were contractually bound to deliver the constructed property on or before 30-8-2011. But the OP has failed to deliver the constructed villa till date, and they are staying in a rented house and delay in getting their own villa has caused a financial loss to them by paying rent for the house and EMI interest for bank loan. They have been paying floating rate of interest on the loan taken and at present the rate of EMI interest is at 12%. The facts of non completion and non delivery of the Villa show that, there is deficiency of service on the part of the OP, so they have come up with the present complaint.
4. In order to prove the case, the complainants have produced the copies of documents. Let us have a cursory glance at the relevant documents of the complainants. Annexure-A is the copy of agreement of sale dated 20-8-2010 between the OP and the complainants in respect of schedule-B property having super built up area of 1588 sq. feet. The complainants have paid Rs.5,34,000=00 as an earnest money, and at ink page no.19 of the document, one verification letter dated 20-8-2010 is found, wherein, the OP agrees to deliver the possession of the schedule-B property on or before 30-8-2011 subject to receiving the entire sale consideration, construction cost of the Villa. However, the OP shall be entitled to a grace period of four months from the agreed date for delivery of vacant possession of the schedule-B property. In case of delay in delivery of the Villa for reasons other than what is stated above, the OP shall pay the damages at Rs.4/- per Sq. ft. super built up area and terrace area per month of delay of the schedule-B property of Villa till delivery, provided the second party i.e. the complainants have paid all the amounts payable as per the agreement and within the stipulated period. The above compensation to the second party is applicable only in the event of second party i.e. the complainants making prompt payments and full value of the villa as per the agreed payments schedule. The said agreement of sale is binding on both parties, and both parties must act strictly in accordance with the terms and conditions of agreement of sale. Annexure-B is the copy of Tripartite agreement among the complainant, OP and financier State Bank of India, and has released a loan of Rs.37,17,000=00 to the borrower. Some email correspondences between both parties are produced, and from the email of the OP, it is made to understand that, the OP has to deliver the home as per the work progress schedule, and some photos were produced by the complainants showing the excavation and footing works to plinth in the area of the OP. Annexure-H is the copy of legal notice issued by the OP to the complainants and others dated 7-3-2011, stating that, the complainants and others have indulged in abusive language and damaged the OP reputation and the complainants and others are coming in the way of their normal work schedule and the complainants and others have to pay Rs.1 Crore each as damages within 15 days from the receipt of this notice and the OP further stated in the notice that, all the agreements entered into by the complainants and OP dated 20-8-2010 stand terminated and there is no contractual obligation on their part. Annexure-J is the copy of reply notice of the complainants and others to the legal notice of the OP, and in the reply given through the lawyer of the complainants, the complainants have requested the OP to withdraw the notice and let them abide by the terms and conditions of the agreement and complete the project successfully at the earliest. Annexure-L is the copy of legal notice issued by the complainants to OP dated 5-7-2012 and the complainants have produced one order copy of 1st Addl. District Consumer Disputes Redressal Forum, Bangalore in CC.1566/2012 and that order copy shows that, the present complainants have filed a complaint against the OP before the 1st Addl. District Consumer Disputes Redressal Forum, Bangalore and that complaint came to be dismissed as the value of the prayer made in the complaint exceeded jurisdiction of the district forum.
5. By making careful scrutiny of the documents of complainants, it is made explicitly clear that, both the complainants and OP have entered into an agreement of sale in respect of schedule-B property for a sum of Rs.36,58,263=00 and out of it, the complainants have paid Rs.17,43,454=00, and the OP were bound to deliver the constructed villa property to the complainants on or before 30-8-2011, and if there is a delay in delivery of the possession of the property, the OP has agreed to pay Rs.4/- per sq. feet super built up are provided, the complainants to pay the entire sale consideration amount properly. The exchange of legal notice between the parties go to reveal that, the OP has terminated the agreement of sale and asked the complainants to pay damages of Rs.1 crore and to that notice, the complainants have given reply, requesting to withdraw the notice and let them abide by the terms and conditions of the agreement of sale and requested to complete the project as early as possible.
6. As can be seen from the averment of the complaint that, the complainants have not asked for relief of taking possession of constructed Villa i.e. schedule-B property under the registered sale deed, but they have asked the relief of asking interest on the amount paid from 20-8-2010 till the date of delivery of the constructed villa, to pay Rs.6,932=00 per month from Sept.2011 till the date of delivery of the constructed villa, and to pay full cost of the legal proceedings including the cost of the legal notice etc., paid by them which are ancillary relief to the main prayer of taking possession of the villa under the registered sale agreement. Unless and until, the main relief of taking possession of constructed villa under the registered sale deed is sought such ancillary relief as prayed in the complaint cannot be granted by this forum under the provisions of section 12 of the CP Act, since enquiry under the CP Act is summary in nature. From the documents of the complainant, onething is manifest that, the complainants have not paid the entire amount of Rs.36,58,263=00 as per the agreement, so also the OP has not completed the project and handed over the possession of the schedule-B property. The act of the complainants in not paying the entire sale consideration amount and the gesture of OP in not completing the project and handing over the possession of schedule-B property amounts to breach of agreement between the parties. So, under the circumstance, we are of the considered opinion that, the only way left open to the complainants is to enforce the agreement of sale by filing suit for specific performance of the contract before the Civil court and ventilate their grievances and get relief of taking possession of schedule-B property under the registered sale deed and other relief as prayed in the complaint and not by filing the such complaint before the forum under section 12 of the CP Act, as the present case of the complainants involves mixed question of law and facts. So viewing the prayer of the complainants made in the present complaint, nature of agreement entered into between the parties by executing the agreement of sale and considering the scope of CP Act, we are of the view that, the present complaint of the complainants, in the present form is not maintainable. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainants is dismissed, as not maintainable. So, under the circumstance, no order as to 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 6th day of September 2012.
MEMBER MEMBER PRESIDEN
