Date of filing: 15.09.2021

                                                               Date of Disposal:12.01.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 12^th DAY OF JANUARY, 2023

CONSUMER COMPLAINT NO.378/2021

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr.Sandesh Upadhyaya,

S/o Late Sri.K.Srinivas Upadhyaya,

Aged about 39 years.……COMPLAINANT-1

Ms.Archana Sandesh Upadhyaya,

W/o Mr.Sandesh Upadhyaya,

Aged about 37 years,

Both residing at Flat No.1504,

‘B’ Block, 4^th Floor,

Cansa Street, Lord Steps Layout,

Panathur (Dinne),

Bangalore-560 087.……COMPLAINANT-2

Rep by Sri.Stanley Sam, Advocate.

M/s Kansa Properties LLP,

Rep by its Managing Partner,

Mr.Sabu Thomas,

Having its registered office at No.485/1,

HAL 3^rd Stage, Jeevan Bhima Nagar,

Mr.Sabu Thomas, Major,

Managing Partner,

M/s Kansa Properties LLP,

Having its registered office at No.485/1,

HAL 3^rd Stage, Jeevan Bhima Nagar,

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainants have filed this complaint under Section-34 & 35 of Consumer Protection Act, 2019 seeking for a direction to the opposite parties to complete the interior work of apartment by laying the 60% of tiles and other works and to do the other works properly and to pay compensation of Rs.15,40,000/- and alternatively to refund the entire amount registration expenses to the tune of Rs.23,48,953/- and such other reliefs as this commission deems fit in the circumstances of the case.

2. In spite of notice been served on the opposite parties, the opposite parties remained absent. 

3. The complainant no.2 is the wife of complainant no.1.  The opposite party no.1 & 2 are the Managing Partners of             M/s Kansa Properties LLP and the said firm is a developer.  The complainants have purchased the flat no.B-1504 for their residential purpose through the sale deed dt.22.10.2020 from opposite party no.1 & 2 measuring 1085 square feet.  Further, the opposite parties did not complete the work as assured and the quality of the work has not been maintained as assured.  Hence, the complainants were made to stay in a rented house. Further, the total consideration for the apartment was Rs.45,98,500/- and the complainants have spent for interiors work an amount of Rs.2,75,000/- and for the registration of the apartment the complainants have spent an amount of Rs.3,03,502/- and has paid Pre-EMI and EMI to the tune of Rs.4,97,815/- and balance loan amount with HDFC bank to the tune of Rs.33,44,678/- was pending as on August 2021.  Since there was negligence on the part of the opposite parties, the complainants have sustained heavy loss and the act of the opposite parties amounts to unfair trade practice, thereby the complaint came to be filed.

4. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P10 documents.   Further, the complainants got appointed an expert to inspect the property and the expert had filed report after the inspection been made.

5. Counsel for the complainants has filed written arguments.

         6. The points that would arise for consideration are as under:

i) Whether the act of the opposite parties amounts to unfair trade practice ?

ii) Whether there is deficiency of service on the part of the opposite parties ?

   iii) Whether the complainants are entitled for the 

    compensation as sought ?

    iv) What order ?

  7.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  In affirmative

Point No.3 :  Partly in affirmative

Point No.4 :  As per the final order for the following;

REASONS

8.POINT NO.1 & 2:- The complainant(PW1) has reiterated the fact stated in the complaint, in the affidavit filed in the form of his evidence in chief.  EX.P1 xerox copy of the sale deed indicates that the opposite parties being the power of attorney holder of the vendors of the flat of the complainants had sold the flat along with the vendors on 22.10.2020 to the complainants for total consideration of Rs.45,98,500/-.  EX.P2 is the construction agreement entered into by the opposite parties in favour of the complainants’ dt.09.07.2018.  Schedule ‘A’ in EX.P2 is the entire property and Schedule ‘B’ is the flat purchased by the complainants.  It is stated that consideration for sale of schedule ‘B’ property was Rs.28,00,000/-.  EX.P3 is the xerox copy of the Agreement to Sell dt.09.07.2018 executed by the opposite parties and other owners of the land in favour of the complainants.

9. It is the further case of the learned counsel for the complainants that at the time of booking the flat, the opposite parties promised the complainants of timely completion of the project, good services and quality products and several other attractive things.  But the opposite parties have miserably failed to keep their promises and cheated the complainants by providing substandard products in violation of the terms of the Construction Agreement.  In Clause-2 of construction agreement dt.09.07.2018 vide Ex.P2, it is stated that the opposite parties agreed to deliver schedule ‘B’ apartment by 23 months and 6 months Grace period from the date of the agreement.  Since the agreement is dt.09.07.2018, 29 months completes on 09.12.2020.  According to PW1, in spite of the reminders, the opposite parties did not handover the flat and finally the complainants were forced to take the possession on 02.04.2021 after much delay.  This fact has not been denied by the opposite parties by way of version or by giving rebuttal evidence. 

10. It is the further contention of the learned counsel for the complainants that the opposite parties did not complete the project and provided good services and quality products and several other attractive things as promised.  Further, in the entire apartment 60% tiles were not properly installed.  As a result, a gap has started appearing between floor and bathroom tiles.   Further all 5 doors had of bad quality and their frames were not fixed properly with the walls.   Further, room ceilings have seepage patches, one coat paint for the apartment is still pending, all fan hooks are not provided in the centre.   One of the bathroom fittings was damaged by acid stain before handing over the flat to the complainants.  Further, mosquito net frames have gaps so mosquitoes enter the house.   In EX.P3 agreement to sell Clause-6 of VI indicates that the vendor/developer shall take necessary steps to transfer/issuance of Khatha by the revenue department/authorities in favour of the purchaser.  That has not been done.  Clause-7 of VI agreement to sell vide EX.P3 contemplates that the apartment shall be considered complete and ready for occupation, if only all the civil construction work in the building was completed, the apartment has been given permanent AECH Electricity connection with a separate meter, provision for water supply, the lift is fully functional, and above all the apartment is fit and safe for human occupancy”.  The say of the PW1 in his evidence with regard to the defect stated above has not been challenged by the opposite parties by filing version and producing rebuttal evidence.  Further, even though the complainants got issued legal notice vide EX.P7 dt.19.05.2021 by delivering the defects to rectify, the opposite parties did not respond for the same. 

11. Further, it is also contended that the opposite parties failed to transfer BESCOM meter and BBMP Khata to the name of the complainants.  As per condition No.7 of IV, the opposite party shall provide AEH electricity connection and Clause-14 of IV says that OC and CC and individual ‘A’ Katha will be provided by the Vendor/developer before the deadline project completion date as per RERA.  Hence, the opposite parties had failed to complete their obligation as stated in agreement to sell.  Hence, there is deficiency of service on the part of the opposite parties.  Further, counsel for the complainants submit that it is the bounden duty of the developer to provide all the facilities to the flat buyers and they must abide by the complainants and do the needful. 

12. In support of the contention, counsel relies the judgment rendered by the Hon’ble Apex Court in 2008(4)ALD102(SC) in between Faqir Chand Gulati V/s Uppal Agencies Private Limited and another, judgment rendered by Hon’ble NCDRC, New Delhi in Revision Petition No.3745/2012 in between Hanshmukh Patel and others V/s Dr.Sunil Kumar Majhi and others, judgment rendered by Hon’ble NCDRC, New Delhi in CC.No.232/2014 in between Puneet Malhotra V/s Parsvanath Developers Limited.  In view of the principles laid down in the judgment cited and the facts involved in the case on hand, we feel the act of the opposite parties amounts to unfair trade practice as opposite parties failed to perform promise made by the opposite parties and there is deficiency of service on the part of the opposite parties.  Since, the assured facilities were not given and the construction has not been completed within the time as assured, we answer point no.1 & 2 in affirmative.

13.POINT No.3:- The complainants claimed for a direction to opposite parties to rectify the defects and also alternatively sought to refund the entire amount with the registration expenses to the tune of Rs.23,48,953/-. Since, the complainants were shifted their household items on 25^th March, 2021, they were forced to checking process.  We feel it is not fair to direct the opposite parties to rectify the defects pointed out.  Instead, the alternatively reliefs sought can be granted. 

14. In support of the oral evidence, the complainant has got appointed an expert to inspect the flat during the pendency of the complaint.  The expert has filed a report stating that the flat has not been completed as observed with regard to the defect in the tiles, window and other works.  The inspection report of the commissioner submitted on 23.11.2022 before this commission along with colour prints of photo support the case of the complainants. The photo filed by the expert and the complainants indicating the defect has also not been disputed by the opposite parties. 

15. On perusal of the report produced by the complainants and the report of an expert along with the evidence of PW1, it appears that there is defect in the tiles laid, doors, frames, room ceilings and seepage and other things to rectify the said defect the complainants have spent, for that it was the obligation of the opposite parties to complete the work perfectly.  That has not been done.  Hence, the opposite parties shall pay a sum of Rs.50,000/- which is required to rectify the defects noted by the expert and as well as completed by the complainants.  Further, the complainants claim a direction to the opposite parties to pay Pre-EMI for the period of delay.  Clause-11 of the construction agreement vide EX.P2 contemplates that “in the event the first party delays in completing the construction of the schedule-B apartment for reasons otherwise than set out in clause mentioned in this agreement, then in that event the first party shall pay the second party Pre-EMI p.m from agreed date of completion till completion of the construction.  This clause will become applicable only if the second party has not committed any breach of this agreement as well as the corresponding agreement of sale”. It is the contention of the learned counsel for the complainants that the opposite parties are liable to pay Pre-EMI for delay from December-2020 to March-2021. 

16. According to the complainants, the complainants have paid Pre-EMI and EMI to the tune of Rs.4,97,815/-.  It is not to specifically stated Pre EMI paid and the amount of EMI in each month paid.  Hence, we feel the complainants did not produce any document with regard to the EMI paid.  Hence, any amount cannot be granted under this head.  Further, the complainants claim a sum of Rs.1,00,000/- for the rent paid. The complainants have produced EX.P6 rental agreement dt.20.10.2020, in which the rate of rent is mentioned as Rs.18,000/- per month.  The opposite parties ought to have completed the construction on 09.12.2020 and the complainants have occupied the flat on 02.04.2021.  Hence, the complainants were made to stay in the rented house by paying the rent.  Hence, under this head the complainants are entitle for a sum of Rs,50,000/-.  Further, the complainants claimed a sum of Rs.15,000/- for the queen size bed.  According to the complainants while the complainants were carrying items to the apartment, the building security guard appointed by the opposite parties along with others tried to move the parked vehicle of packers and movers.  In the result, the complainants’ double queen size bed fell on the ground and it was totally damaged.  Further, the opposite parties blindly ignored them and did not bother to fix the same and went into deaf ears and the bed worth of Rs.15,000/-.  Any material has not been produced by the complainants other than the oral say, thereby the complainants are not entitled under this head.  Further, the complainants claimed compensation for harassment, inconvenience, frustration and mental agony of Rs.15,000/-. 

18. According to PW1, the opposite parties with the sole intention to harassing the complainants refused to add their mobile number to My Gate App and to the ‘Cansa Owners’ WhatsApp Group because of which on 03.05.2021 the news about the complainant’s neighbour being infected by Covid 19 didn’t reach the complainants.  Further, because of non-information by the opposite parties side, the complainants without knowing the family had COVID-19 of the family into danger including a 6 months old baby, the complainants had cleared the fact by crossing the said house 3 to 4 times.  Definitely because of the non-completion of the flat on time and made the complainants to stay in rented house and there was defect in the quality of work, the complainants have undergone frustration and mental agony.  Hence, we feel under this head, the complainants are entitled for a sum of Rs.30,000/-.  Further, the complainants claimed a sum of Rs.40,000/- legal expenses.  We feel the complainants are entitled for a sum of Rs.10,000/- towards legal expenses.  In total the complainants shall pay a sum of Rs.90,000/-.  Accordingly, we answer this point partly in affirmative.

19.POINT NO.4:- In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite parties are directed to pay a sum of Rs.90,000/- to the complainants. 

The opposite parties shall comply the order within 30 days. In case, the opposite parties fail to comply the order within the said period, the above said amount of Rs.90,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 12^th day of January, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Sri.Sandesh Upadhyaya, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Xerox copy of sale deed dt.22.10.2020.
2. Xerox copy of construction agreement dt.09.07.2018.
3. Xerox copy of agreement to sell dt.09.07.2018.
4. (16 photo printout) defect in the flat.
5. Email chain with opposite parties. 
6. Xerox copy of rental agreement dt.20.10.2020.
7. Xerox copy of legal notice dt.19.05.2021.
8. Notarized copy of booking form dt.25.05.2018.
9. Xerox copy of the statement with regard to home loan sanction and its 1^st, 2^nd and 3^rd disbursements.
10. Xerox copy of acknowledgements for having paid Rs.2,50,000/- towards interior work.

Witness examined for the opposite party side: 

Documents marked for the Opposite Party side:

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•