Date of Filing:16.05.2009<br /> Date of Order: 16.06.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 16TH DAY OF JUNE 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 /> <br /> COMPLAINT NO: 1130 OF 2009<br /> Rajashree Menon<br /> W/o. Hari Menon<br /> R/at No. B-1204 Komarla<br /> Brigade Residency, Uttarahalli Road<br /> Chikkalasandra, Bangalore 560 006 Complainant<br /> <br /> V/S<br /> <br /> 1. M/s. Ittina Properties Pvt. Ltd.<br /> ITTINA Centre, 16th Main, 3rd Block<br /> Kormangala, Bangalore 560 034<br /> <br /> 2. Mahabaleshwarappa<br /> Director<br /> M/s. ITTINA Properties Pvt. Ltd.<br /> ITTINA Centre, 16th Main, 3rd Block<br /> Koramangala, Bangalore 560 034 .... Since deceased<br /> <br /> 3. Mona Ittina, Director<br /> Director<br /> M/s. Ittina Properties Pvt. Ltd.<br /> ITTINA Centre, 16th Main<br /> 3rd Block, Kormangala<br /> Bangalore 560 034 Opposite Parties<br /> <br /> ORDER<br /> By the President Sri S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986.<br /> The facts of the case are that the complainant has purchased flat from the opposite parties vide sale deed dated 06.07.2004 which was duly registered before the office of Sub-Registrar, Krishnarajapura, Bangalore. She has paid a sum of Rs. 16,94,350/- to the opposite party through cheques. As per the terms of sale deed opposite parties had promised to hand over the possession of the subject flat by the end of June 2005. However, the opposite parties dodged the said issue and till date have not handed over the possession of the flat to her. Several meetings were held with the officials of the opposite parties. The original cost of the flat agreed between parties is as entered on the reverse of the booking form is Rs. 20,15,350/-. The opposite parties now raised undated estimated invoice. The opposite parties failed to deliver the possession of the flat till date. Complainant got issued legal notice through her counsel, calling upon the opposite parties to deliver the possession of the subject flat and to pay sum of Rs. 10,67,440.50 towards agreed pre-EMI interest. The opposite parties are liable to deliver the possession of the flat and to pay sum of Rs. 6,63,860.50 towards agree pre-EMI interest. The cause of action arose on June 2005 the time during which opposite party has promised to deliver the possession of the apartment and on all other dates when the opposite party promised to deliver possession of subject flat and failed to keep up its promise. Therefore, the complainant prayed that opposite parties be directed to deliver possession of the subject flat and also to pay Rs. 6,63,860.50 along with future interest and direct the opposite parties to pay damages of Rs. 25,000/- for mental agony. <br /> 2. The opposite party filed defence version. It is submitted that flat was booked on 08.02.2004 and complaint filed before this forum in the year 2009 after lapse of 5 years. The complaint is liable to be dismissed on ground of inordinate delay. It is true that complainant has purchased the flat vide sale deed dtd. 06.07.2004. It is true that complainant has paid sum of Rs. 16,94,350/- towards part sale consideration amount out of Rs. 22,37,650/-. There is no legal justification to say that act of opposite party amounts to deficiency of service. Complainant booked the flat on 08.02.2004 by paying initial amount of Rs. 50,000/- out of total sale consideration of Rs. 21,65,350/-. There is no justification asking the opposite party to deliver the possession of the flat. For all these reasons stated above opposite parties requested to dismiss the complaint.<br /> 3. Respective parties have filed affidavit evidence and documents.<br /> 4. Arguments are heard.<br /> 5. The point for consideration is:<br /> 1. Whether there was deficiency of service on the part of opposite parties?<br /> 2. Whether the complainant is entitled for relief? <br /> 6. It is admitted case of the parties that the complainant had paid in all Rs. 16,94,350/- towards purchase of flat. This figure is reflected by the invoice of opposite party itself. The complainant has taken sale deed from opposite parties on 06.07.2004. The copy of sale deed is produced. As per the sale deed vendors have under taken to put purchaser in possession of the Schedule B property by the end of June 2005. But as per the under taking and commitment the opposite party has not delivered possession of the flat to the complainant. There were several correspondence between the complainant and the opposite party in respect of handing over of possession. The opposite party has produced e-mail letter dated 30.08.2007 stating that flat is ready for possession and requested the complainant to contact customer care executive to collect possession papers immediately. Another e-mail is produced by opposite party dated 13.12.2008 where in it is stated that the complainant had not taken possession after sending so many reminders and asked the complainant to collect possession document immediately. 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 to hand over the possession of the flat to the complainant. In the sale deed it has been clearly stated that vendors will put the purchaser in possession of the property by the end of June 2005. Therefore, the opposite parties shall have to be directed to hand over the possession of the flat in favour of the complainant. As regards payment of pre-EMI interest claimed by the complainant nothing is mentioned in the sale deed regarding payment of pre-EMI interest. Complainant has not produced any agreement said to have entered into between herself and opposite party in respect of payment of interest, either pre-EMI interest or interest for delayed possession. For the best reasons known to the complainant no documents either agreement of sale or any other independent documents are produced to show that there was agreement for payment interest as claimed by the complainant. The opposite party is also claiming some amount from the complainant. Again there are no documents to show that the complainant has agreed to pay the amount as demanded by the opposite party. Sale deed has been executed by the opposite party and there is specific mention in the sale deed that the purchaser had paid entire sale consideration amount of Rs. 8,60,000/- to the vendors. When this is clear admission or recital in the sale deed how can the opposite party demand additional amount from the complainant. Nothing is mentioned in the sale deed in respect of due payable by the complainant for the flat. The only condition in the sale deed is that the vendor had under taken to put the purchaser of the property in possession by the end of June 2005. So under these circumstances since possession is not delivered as per the recital of the sale deed it is now the duty and obligation of the opposite party to put the complainant in possession of the flat. Neither the complainant is payable anything nor the opposite party is entitled for any amount from the complainant as per the sale deed. 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 vendors. The only thing to be executed is to deliver possession of the flat. So under these circumstances it is just, fair and reasonable to direct the opposite party to hand over the possession of the flat as mentioned in the sale deed. Non-delivery of possession by the opposite party even after execution of sale deed and receipt of consideration amount definitely amounts to deficiency of service on the part of opposite party. The defence version filed in this case has not been signed or verified by the opposite party. The version has been signed by the advocate for opposite party without there being signature of party. Such kind of version is not defence version in the eye of law. Therefore, the case of the complainant that opposite party is liable to deliver possession of the flat in her favour as per the sale deed shall have to be accepted. Since, opposite party has sent e-mails to the complainant that flat is ready and requested complainant to take possession, there shall be no hindrance now for the opposite party to hand over possession of the flat in favour of the complainant. In the result I proceed to pass the following:<br /> ORDER<br /> 7. The complaint is allowed. The opposite parties are directed to hand over and deliver possession of Schedule B property as mentioned in the sale deed dated 06.07.2004 executed by the opposite parties in favour of the complainant 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 complainant is entitled for Rs. 5,000/- p.m. (loss of rent) as compensation from the opposite parties till the date of delivery of possession of the flat.<br /> 9. The complainant is entitled of Rs. 5,000/- as costs of the present proceedings from the opposite parties. <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 16TH DAY OF JUNE 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br />