Date of Filing:27.11.2009<br /> Date of Order: 17.08.2010<br /> <br /> 2<br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 17TH DAY OF AUGUST 2010<br /> <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 /> COMPLAINT NO.: 2852 OF 2009<br /> <br /> 1. Sarvade Suresh Rao<br /> S/o. S. Eswara Rao<br /> 2. S. Smitha<br /> W/o. Sarvade Suresh Rao<br /> 3. Sarvade Giridhar Rao<br /> S/o. S. Eswara Rao<br /> <br /> All are residing at:<br /> # 9/2, 2nd Floor, Sai Baba Street<br /> Mettupalyam, West Mambalam<br /> Chennai 600 033 Complainant<br /> V/S<br /> 1. M/s. Ittina Properties Pvt. Ltd.<br /> A Company having its <br /> Registered Office at No. 1054<br /> 7th Main, III Block, Koramangala<br /> Bangalore 34<br /> Rep. by all its Directors<br /> Manu Ittina S/o. Late Mahabaleshwarappa<br /> <br /> 2. Lalita Developers<br /> A partnership firm having its office<br /> at Leo Complex, 2nd Floor, 44045<br /> Residency Road Cross, Bangalore 25<br /> Rep. by all its partners Opposite Parties<br /> <br /> ORDER<br /> By the Member Sri Balakrishna V. Masali<br /> This is a complaint filed under Section 12 of the Consumer Protection Act.<br /> The facts of the case are that complainants purchased flat from the opposite parties vide sale deed dated 09/03/2006. The complainants paid a sum of Rs. 16,97,680/- to the opposite parties. As per the terms of sale deed the opposite parties had promised to handover the possession of the flat bearing the number M402 in level four in block M to be built by the opposite parties within September 2006. However, the opposite parties dodged the said issue and till date have not handed over the possession of the flat to the complainants. Several meetings were held with the officials of the opposite parties. The opposite parties failed to deliver the possession of the flat till date. The complainant has issued notice to the opposite parties calling upon the opposite parties to deliver the possession of the flat and to pay a sum of Rs.1, 71,126/- towards the pre EMI on 6/11/2007. The opposite parties are liable to deliver the possession of the flat and to pay a sum of Rs. 4,13,104/- towards agreed pre EMI. The cause of action arose on September 2006 the time during which opposite parties have promised to deliver the possession of the flat and on the other date when the opposite parties promised to deliver possession of flat and failed to keep up its promise. Therefore the complainants prayed that opposite parties be directed to deliver possession of the flat and also to pay Rs. 4,13,104/- and direct the opposite parties to pay an amount of Rs. 8000/- p.m. from September 2006 till the date of handing over the possession by the opposite parties to the complainants.<br /> 2. Notice was served to the opposite parties. Opposite parties put in appearance through advocates and opposite party No. 2 filed defense version and opposite party No. 1 not filed version. Affidavit evidence also not failed. In the defense version opposite party No.2 submitted that neither this opposite party No. 2 has entered into an agreement with the complainant nor the alleged agreement is binding on this opposite party No. 2. Hence, the above complaint is liable to be dismissed against this opposite party No. 2 and there is no privity of contract between the complainant and the opposite party No. 2. Hence, the opposite party No. 2 is not at all liable for the alleged claims made by the complainants. It is submitted that the property in question was exclusively owned by the opposite party No. 1 and opposite party No. 2 has nothing to do with that property. This opposite party No. 2 is not a party to the alleged sale agreement. The allegation made in the complaint as per the agreement dated 18/02/2006 the opposite party No. 2 under took to handover the apartment to the complainants on or before September 2006 are all false. Having regard to the facts and circumstances of the case this opposite party No. 2 is not at all liable to pay interest or compensation as claimed in the complaint. Therefore, the complaint filed against this opposite party No. 2 is liable to be dismissed with exemplary cost.<br /> 3. The complainant and opposite party No. 2 filed affidavit evidence and documents.<br /> 4. Arguments are heard.<br /> 5. The points for consideration are:<br /> 1. Whether there was deficiency of service on the part of the opposite parties?<br /> 2. Whether the complainant is entitled for relief?<br /> 6. It is admitted case of parties that the complainants had paid Rs. 16,97,680/- towards purchase of flat. The complainants have taken sale deed from opposite parties on 09/03/2006. The copy of the sale deed is produced. As per the sale deed vendors have undertaken to put purchaser in possession of flat bearing No. M 402 in level four (third floor) in block “M” measuring 919 sq. ft. of super built up area. But as per the undertaking and commitment the opposite parties had not delivered the possession of the flat to the complainants. There were several correspondences between the complainant and the opposite party No. 1 in respect of handing over the possession where it is stated that the opposite party No. 1 has not given the possession to the complainants after sending so many reminders. Since, sale deed had already been executed in respect of the flat in favour of the complainant now it is the duty and obligation of the opposite party No. 1 to hand over the possession of the flat to the complainants. As regards payment of pre EMI interest claimed by the complainants nothing is mentioned in the sale deed regarding payment of pre EMI interest. Since agreement merged with sale deed therefore the contents of the sale deed shall have to be looked into not the agreement. There is no condition for the payment of interest in the sale deed. Again there are no documents to show that the complainants have agreed to pay the amount as demanded by the opposite parties. Sale deed has been executed by the opposite parties and there is specific mention in the sale deed that purchaser had paid entire sale consideration amount of Rs. 7,21,000/- to the vendor. Under these circumstances since possession is not delivered to the complainants it is now the duty and obligation of the opposite parties to put the complaint in possession of the flat. Sale deed is a registered document. It is a document of title in respect of the property. As per the sale deed and its contents the entire sale consideration amount has been received by the vendor, the only thing to be executed is to deliver the possession of the flat. So under these circumstances it is just, fair and reasonable to direct the opposite party No. 1 to hand over the possession of the flat as mentioned in the sale deed. Non-delivery of possession by the opposite party even after the execution of the sale deed and receipt of consideration amount definitely amounts to deficiency of service on the part of opposite parties. Therefore, the case of the complainants that opposite parties are liable to deliver the possession of the flat to the complainants as per the sale deed shall have to be accepted. In the result I proceed to pass the following:<br /> ORDER<br /> 7. The complaint is allowed. The Opposite party No. 1 is directed to complete the construction and hand over the possession of flat No.M 402 in level four in block M in favour of complainants within 60 days from the date of this order.<br /> 8. In the event of non compliance of the order within 60 days as ordered above the complainants are entitled for Rs. 5,000/- p.m. (loss of rent) as compensation from the opposite party No. 1 till the date of delivery of possession of the flat.<br /> 9. The complainants are entitled for Rs. 5,000/- as costs of the present proceedings from the opposite party No. 1.<br /> 10. Send the copy of this Order to both the parties free of costs immediately. <br /> 11. Pronounced in the Open Forum on this 17TH DAY OF AUGUST 2010. <br /> Order accordingly,<br /> <br /> MEMBER<br /> We concur the above findings.<br /> <br /> MEMBER PRESIDENT<br />