Complaint filed on: 18-06-2012
Disposed on: 17-07-2012
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.1232/2012
DATED THIS THE 17th JULY 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainants: -
D.Manikandan,
S/o.Sri.Dhanakoti.C,
Aged about 37 years,
Residing at No.266,
1st floor, Bhavani Nilaya,
G.K.Layout, Hosur Road,
Electronic City post,
Bangalore-560100
V/s
Opposite party: -
M/s.ITTINA Properties Private Ltd,
380, Ittina Centre, 16th Main,
3rd Block, Koramangala,
Bangalore -560 034
Reptd. by its Director,
Ms.Mona Ittina,
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 complete the structure and the interior of the building and put the complainant in possession of the flat of “J” 101 in the Ground floor in block “J” of Ittina Mahaveer situated at Doddatoguru village, Begur hobli, Bangalore south taluk; return the excess amount of Rs.8,44,000=00, and to pay compensation of Rs.11,00,000=00 for the loss and injury suffered by him.
2. The brief facts of the complaint can be stated as under.
The complainant agreed to purchase an apartment bearing no.J-101 in the ground floor in block-J of Ittina Mahaveer measuring 919 sq. ft., being attracted by the flats formulated by OP. So, the complainant has executed a registered sale deed in favour of the complainant and his wife on 31-8-2007. After the registration of the sale deed the wife of the complainant was died. The complainant has paid Rs.17,94,000=00 after availing a loan from BHW Home Finance Limited, Residency road, Bangalore. Though the consideration was at Rs.9,50,000=00, the complainant has paid 8,44,000=00 more than the agreed amount. The complainant was made to believe that, the excess amount paid would be returned. The OP agreed to complete the structure and interior of the flat and give the possession of the flat within 3 months from the date of registration, but the OP did not complete the structure and the interior of the flat. Having collected the sale consideration amount, it was the duty and obligation of OP to put the complainant in possession of the flat. On account of non-delivery of the possession of the flat, the complainant is put to physical and mental and hardship and it amounts deficiency of service on the part of the OP. The complainant got issued a legal notice to OP, but the OP did not give any reply. So, the present complaint is filed against the OP.
3. We have heard the arguments of the learned counsel for the complainant, at the stage of admission regarding maintainability. We have gone through the averments of the complaint and relevant documents placed by the complainant. The document no.1 of the complainant is the copy of sale deed dated 31-8-2007 executed in the name of the complainant and his wife by the OP in respect of flat no.J-101 existing in the ground floor in block-J of Ittina Mahaveer measuring 919 sq. ft. inclusive of common use together with 275 sq. ft. and in page no.8 of the sale deed at para no.24, it is specifically stated that, the vendors have good rights, full power and absolute authority to grant, release, convey, transfer and assure schedule B property hereby granted, released, conveyed, transferred and issued or intended so to be unto the use and benefits of the purchaser in manner.
4. By reading the said clause of the sale deed executed by the OP in the name of the complainant and his wife, it means to say that, the vendors have conveyed the possession of property in question to the complainant and his wife, when the sale deed was executed. In the sale deed, nowhere it is stated that, the possession of the property is yet to be delivered to the complainant. After taking registered sale deed from the OP, if the OP does not act in terms of sale deed, it amounts to breach of contract, for which, remedy lies in the civil court by filing the separate civil suit and not by filling the complaint under section 12 of the CP Act. Moreover, the sale deed was executed by the OP in the name of the complainant and his wife on 31-8-2007 and the complainant got issued a notice to the OP on 15-3-2012 calling upon the OP to comply within 15 days of receipt of the notice, the OP received the notice on 16-3-2012. So, the cause of action arose to the complainant to file the complaint from that date, according to the averment of the complaint. But it is required to be noted from the material on record that, from the date of execution of sale deed, i.e. 31-8-2007 till the date of issuance of notice to the OP i.e. 15-3-2012, the complainant has kept silent, and no plausible explanation has been given by the complainant in not taking any action against the OP, during that period, the complainant ought to have taken steps against the OP within two years from 31-8-2007 atleast. So, looking to the averments of the complaint, on the back ground of registered sale deed in the name of the complainant and his wife by the OP on 31-8-2007 together with fact of not taking any action against the OP by the complainant within two years from 31-8-2007, we are of the view that, the present complaint of the complainant is not sustainable, and if the OP does not act as per the recital of the sale deed it tantamounts to breach of contract, for which, the complainant has to approach the Civil Court and get relief.
5. At this stage, the learned counsel for the complainant has relied on the following authority.
III (1996) CPJ 165 (Deshbir Verma –vs- The Hamirpur Co-operative House Building Society Ltd and Anr)
“Consumer Protection Act, 1986 – Section 15 – Appeal
Section 14 (d)– Compensation – Housing – complainant was allotted a house by opposite party – Complaint filed alleging house not per specification–District forum dismissed complaint in limine- Appeal– Whether order of District Forum is patently illegal?”
AIR 2004 Supreme Court 2141 (Ghaziabad Development Authority –vs- Balbir Singh)
“(A) Consumer Protection Act (68 of 1986). Ss. 17, 21 – Consumer forum-Jurisdiction – Misfeasance in public office viz, deficiency of service by Development Authority – National Consumer Disputes Redressal Commission has jurisdiction to award compensation”
The complainant counsel has produced one Xerox copy of CP Act, page no.229 of book, wherein it is stated as under:
“The complaint filed after years in 1996 was dismissed as barred by limitation, where the alleged deficiencies of not providing promised facilities like roads, fire fighting, services, adequate water supply for setting up industry in the industrial estate developed by the appellant were notice late.”
6. We are in respectful agreement with guidelines of the said decisions. So making application of obiter dictum of the said citations to the present case on hand, we are of the firm opinion that, the facts of the case on hand, and facts and circumstance of the above said decisions are on different footing. So, the above said citations will not come to rescue of the complainant in any manger. So viewing the present case of the complainant, on the back ground of relevant documents, namely, copies of sale deed dated 31-8-2007. We are of the considered opinion that, the present complaint of the complainant under section 12 of the CP Act is not maintainable, as enquiry under the CP Act is of summary proceeding. The complainant can ventilate his grievances by filing the civil suite before the Civil Court, and not by filing the complaint under the CP Act, and accordingly, the complaint of the complainant is liable to be dismissed as not maintainable. 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, both 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 17th day of July 2012.
MEMBER MEMBER PRESIDENT
