Karnataka

Bangalore Urban

CC/565/2021

Mr. Nagabhushan K J - Complainant(s)

Versus

M/s. Mantri Castles Private Limited - Opp.Party(s)

Sri. Mohan Kumar

05 Jul 2022

ORDER

Complaint filed on:29.11.2021

Disposed on:05.07.2022

                                                                         

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

 

DATED 5^TH DAY OF JULY 2022

 

PRESENT:-  SRI.K.S.BILAGI	:	PRESIDENT
SMT.RENUKADEVI DESHPANDE : MEMBER	:	MEMBER
SRI.H.JANARDHAN	:	MEMBER

                          

                      

COMPLAINT No.565/2021

 

COMPLAINANT	Nagabhushan.K.J., S/o Janadhana swamy, Aged about 54 years, R/a B704, Mantri Serenity,     Smt.Savitha Bhushan.N W/o Nagabhushan.K.J., Aged about 47 years, R/a B704, Mantri Serenity,
(Sri M.Mohan Kumar, Adv.)
OPPOSITE PARTY	1.M/s Castles Vista Private Ltd., (Formerly known as M/s Mantri Castles Pvt. Ltd.) Regd. Office  at: Mantri house, No.41, Vittal Mallya road, Bengaluru-560001 Rep. by its Director (Sri.S.Sushant Venkatesh Pai, Adv.)   2.M/s Gokulam Shelters Pvt. Ltd., Regd. Office at: Gokulam complex, 8th mile, Doddakallasandra post, Vasanthapura village, Kanakapura Main road, Bengaluru-560052 Rep. by its Director.
(Exparte)

                               

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This joint complaint has been  filed under section 35 of C.P.Act, 2019 for the following reliefs

1. Direct the Opposite parties to pay compensation at the rate of 18% per annum on Rs.84,01,418/- from 31.12.2015 until handing over of the possession by executing Sale deed along with all amenities and occupancy certificate.
2. Direct the Opposite parties to pay a sum of Rs.5,00,000/- towards damages and compensation, mental pain and agony
3. To order to pay costs of Rs.50,000/- and pass such other order or orders as this Hon’ble District Redressal Commission deems fit under the facts and circumstances of the case.

 

2.The brief facts of the complaint is as follows:

Op-1 & 2 are the registered companies and they have   running business of real estate  activities. OP-2 is land owner of converted land bearing sy. No.57(P), 56(P), 59(P) and 60(P) all situated  at Doddakallasandra village. OP-1 is developer  and OP-2  as land owner having entered into sale agreement for Rs.42,40,800/- and agreement for construction for Rs.31,88,000/- which included other costs and total cost informed was Rs.88,70,071/-. As per agreement OPs assured that possession of the apartment would be completed on or before 31.12.2015. It is further case of the complainants that despite having received Rs.84,01,418/- in seven installments, OPs fail to deliver the possession of the apartments on stipulated time. The act of the Ops amounts to deficiency of service. Hence, this complaint.

 

2. In response to the notice, OP-1 appears and files version. OP-2 failed to appear before this Commission and OP-2 has been placed exparte.

 

3.  The OP-1 contends that the complaint is not maintainable before this Commission for want of pecuniary jurisdiction. As per C.P.Act, 2019 this Commission had jurisdiction up to Rs.1,00,00,000/-. Payment 01 crore consideration which has been reduced to Rs.50,00,000/-. OP-1 admits both the agreements. OP-1 could not complete the project due to heavy rain fall, sand suppliers strike, demonetization, implementation of GST, COVID-19, non-payment of dues by all allottees and non-availability of raw material and labour force.

 

4. Karnataka Real Estate Regulatory Authority has extended  the dead line for completion of project upto 29.10.2021. There is no deficiency of service on the part of OP-1. The OP-1 denies all other contentions except admitting  payment of amount stated by the complainants  and OP-1 request to dismiss the complaint.

 

5.       Complainant-1 filed his affidavit evidence and relies on 13 documents. Representative of OP-1 has filed his affidavit evidence  and relies on 3 documents.

 

6.      Heard the arguments. Perused citations.

 

7. The following points arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

 

8. Our answer to the above points are as under:

       Point No.1:- Affirmative.

      Point No.2:- Affirmative in part.   

      Point No.3:-As per the final order.

 

REASONS

9. Point Nos.1 and 2:.At the 1^st instance, it is relevant to refer the  admitted and proved facts. The complainants and OPs have entered into agreement of sale on undivided share of interest dt. 15.02.2013 for consideration of Rs.42,40,800/- and in respect of apartment no.P404.  On the same day, the complainant and OP-1 have entered into agreement of construction for Rs.31,88,000/- in respect of same apartment with super build up area 1520 sq.ft. As per construction agreement, the OP-1 supposed to deliver the possession of the apartment to the complainant latest by 31.12.2015. The complainant has adjusted payment of Rs.84,01,418/-. This fact is proved from the exhibit P3  & P4. There is no dispute about payment of this amount to OPs.
10. According to the complainants  own showing the total consideration payable in respect of the site and construction portion Rs.88,70,071/- including miscellaneous amenities.

 

11. The OP-1 agreed to  complete, but the project could not be complete the project due to heavy rain fall, sand suppliers strike, demonetization, implementation of GST, COVID-19, non-payment of dues by all allottees and non availability of raw material and labour force. It is relevant to note that the effect of demonetization started from November 2016 and effect of COVID-19  and lock down started with effect from 19.05.2020. The OP-1 has not placed any evidence much less  acceptable  about heavy rain fall, non availability of raw material, implementation of GST, non payment of dues by all the allottees and labour force had caused delay, but OPs have not intimated the complainant stating these reasons and they were  told to complete the project on or before 31.12.2015. These contentions have been taken by OP-1 only on 17.01.2022. This belated say of OP-1 cannot be accepted.

 

12. OPs are defaulters for non completion of the project  on or before 31.12.2015. The OPs have not placed any material to accept their defense for non completion of the project within stipulated time 31.12.2015.

 

13. The complainant relies on Exhibit P5 & P6 stating that there was force to pay EMI to the bank, but complainant has not produced any loan sanction letter to show that how much loan he has taken  from the bank. The complainant also not produced  any notice issued by his banker calling him to pay the amount.

 

14. This complaint is preceded by Exhibit P7 legal notice dt.13.10.2021. This notice came to be served on OPs and OP-1 alone issued Exhibit P10 reply stating that  he has credited Rs.2,96,750/-  as per their obligations. The complainant has produced P12 and OP-1 has proved credit note of Rs.2,97,749/-. It is proved from exhibit-P11 and R3 dt. 02.12.2020 issued by OP-1 that Mantri Developers will bear the pre-EMI from the date of commencement of construction of said block till 36 months and free EMI will be paid to client on monthly basis. Another credit note dt.01.02.2021 indicates that OP-1 addressed letter about approval of credit for Rs.71,288/-.

 

15. The OP-1 also relies on exhibit R4 partial clearance certificated issued by Karnataka State Fire and Emergency services dt.16.09.2021. It means the OPs have obtained partial clearance certificate only after expiry of stipulated period dt.31.12.2015. OP-1 has addressed a letter as per exhibit R5 only on 17.08.2021 requesting the BDA to issue occupancy certificate. The OPs have not produced clearance certificate and occupancy certificate. Without occupancy certificate the OPs cannot except the complainant to occupy the apartment. Both OPs fail to adhere to the terms and also fail to deliver the possession of the apartment latest by 31.12.2015. Non-delivery of possession on or before 31.12.2015 amounts to deficiency of service.
16. Complainant seeks reliefs including payment of interest at  18%p.a. on paid amount of Rs.84,01,418/- from 31.12.2015 until handing over possession by executing sale deed , compensation of Rs.5,000/- and cost of Rs.50,000/-.

 

17. Counsel for complainant places reliance on  of the following decisions in support of his arguments.

1. 2022 Live law(SC) 36, judgment of Hon’ble Supreme court in Matter Samruddi Co-operative Housing Society Ltd V/s Mumbai Mahalakshmi Constructions Pvt.Ltd.
2. 2019 (5) SCC 725, in the matter  of Hon’ble Supreme court of India in Civil AppealNo.12238/2018 in the matter between Pioneer Urban Land  & infrastructure Ltd. v/s Govindhan Raghavan
3.  Decision of Hon’ble Supreme Court of India in Civil Appeal no.6044/2019  in the matter between Experion developers Pvt.Ltd V/s Sushma Ashok Shiror
4. Decision of Supreme court of India in Civil Appeal no.224-225/2015 in the matter of Kamalesh Aggarwal V/s Narin Singh Dabbas & another.

 

18. In the 1^st decision, the legality of dismissal of the complaint on limitation was challenged before Hon’ble Supreme Court of India. Hon’ble Supreme Court of India was pleased to  set-aside the order of Hon’ble National Consumer Commission remanded the matter. This decision is not applicable to the present case.

In the 2^nd decision, the Hon’ble Supreme Court of India was pleased to award interest at 10%p.a. vide order dt.02.04.2019. This decision will have to be taken into consideration.

In the 3^rd decision Hon’ble Supreme Court of India vide order dt.07.04.2022  headed by 03 judges  was pleased to grant interest at 9% p.a. under such circumstances, the complainant is entitled to interest at 9% p.a.

The complainant heavily relies on the 4^th decision, it was the case arising out of execution proceedings. It was held that order of DCF must be complete by invoking the order XXI Rule 32 of CPC. Therefore, the facts and ratios involved in the above decisions are  not applicable to the complainant at this stage.

 

19. The complainant claims interest at 18% p.a. from 31.12.2015 on paid amount till delivery of possession and execution of sale deed. The District Commission is not empowered under C.P.Act to grant relief of specific performance giving direction to OP-1 to execute sale deed with delivery of possession. The claim of the complainant with regard to execute sale deed lies somewhere and not before this Commission.

 

20. Counsel for OP-1 placed reliance on the following decisions

1. BDA V/s Syndicate Bank-AIR 2007 SC 2198
2. Ravneet Singh Bagga V/s  KLM Royal dutch Airlines-(2000) I SCC 66
3. Alva Aluminium Ltd V/s Gabriel India Ltd.-(2011) I SCC 167
4. Bharati knitting co. V/s DHL World wide Express courier Division of Airfreight Ltd.-AIR 1996 SC 2508.
5. Secretary, Bhubaneshwar Development Authority v/s susanth Kumar Mishra-(2009) 4SCC 684.
6. Mangilalsoni V/ T.Marappa & other- 2011 SCC online NCDRC 131.
7. DLF Homes Panchkula pvt Ltd. V/s D.S.Dhanda & ors-(2020) 16 SCC 318

 

We carefully perused these decisions. In the 1^st decision dt.17.05.2007 the appeal of BDA was rejected stating that delay in delivery of possession in payment of interest amounts to deficiency of service.

 

The 2^nd decision is with regard to acceptance of arbitration agreement, but it is not the case of  of OP-1 that jurisdiction of this commission outstate due to Arbitration clause.  The Arbitration clause if any is only additional remedy, but additional remedy is given to the complainant under the provisions of C.P.Act. This decision is not applicable to the present case on hand. It is not the case of the complainant that he tendered  balance amount to OP and called upon OP1 to execute sale deed. It is also relevant to note that OPs have also not demanded payment of balance amount from the complainant and therefore 3^rd decision is also not applicable to the present case on hands.

There is no need to go into details about decisions at sl.no.3 to 6.

In the last  decision  dt.05.10.2019 the DLF homes was directed to pay interest @ 9% p.a. from the date of deposit till date of refund.

 

21.  As indicated above, the failure on the part of the OP to  deliver possession of the apartment  on 31.12.2015 and amounts to deficiency of service. Therefore, complainant is entitled for refund of paid amount Rs.84,01,418/- with interest at 9% p.a.  from 31.12.2015 till payment.
22. As indicated above, the complainant is entitled only interest and complainant is not entitled for  compensation in addition to the interest.

 

23. The complainant has engaged service of advocate and cost of litigation is quantified at Rs.25,000/-. Even though the complainant proves deficiency of service on the part of  OP, the complainant is not entitled to interest till delivery of possession by executing sale deed. The complainant is entitled  to refund of paid amount with interest at 9%p.a from 31.12.2015 till payment and cost of litigation of Rs.25,000/-.

                             

24. Point no.3:- In view of the discussions referred above, the complaint requires to be allowed in part. The OPs shall jointly and severally refund Rs.84,01,418/- with interest at 9% from 31.12.2015 till realization with cost of litigation of Rs.25,000/-. It is proper to impose time limit on the OPs for payment. In case failure on the part of OPs, OPs shall refund amount along with interest. It is proper to enhance the rate of interest after expiry.  we proceed to pass the following 

 

O R D E R

1. The complaint is allowed in part.
2. The OPs  jointly and severally shall  refund Rs.84,01,418/- with  interest at 9% p.a. from 31.12.2015 till realization of entire consideration and  Rs.25,000/- towards cost of litigation  to the complainant.
3. The OPs  shall comply this order within 60  days from this date, failing which the OPs shall pay interest  at 12% after expiry of 60 days from this date till realization on Rs.84,01,418/-.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 5^th  day of July, 2022)

 

(Renukadevi Deshpande) MEMBER

(H.Janardhan) MEMBER

(K.S.Bilagi) PRESIDENT

Documents produced by the Complainant-P.W.1 are as follows:

 

 

1.	Ex.P1: copy of sale agreement dt.15.02.2013
2.	Ex.P2: copy of construction agreement dt.15.02.2013
3.	Ex.P3: Copy of statement of account issued by OP
4.	Ex.P4: Bunch of payment receipts
5.	Ex.P5: copy of ICICI bank statement
6	Ex.P6: copy of Bank statement issued by SBI
7	Ex.P7: copy of Legal notice
8	Ex.P8: Copy of postal receipt
9	Ex.P9: postal acknowledgements
10	Ex.P10: copy of reply of OP
11	Ex.P11: Copy of MOU
12	Ex.P12: Bunch of credit notes
13	Ex.P13: copy of rental agreement.

 

Documents produced by the representative of opposite party – R.W.1 :

 

1.	Ex.R1: Board Resolution dt.23.12.2019
2.	Ex.R2: Fresh certificate of Incorporation for change of Name
3.	Ex.R3: copy of terms and conditions of pre-EMI scheme
4.	Ex.R4: Partial Fire Clearance  Certificate
5.	Ex.R5; Copy of application to BDA for grant of Occupancy certificate

 

 

(Renukadevi  Deshpande)      MEMBER

(H.Janardhan) MEMBER

(K.S.Bilagi)        PRESIDENT