BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 20th JUNE 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.484/2014
(Admitted on 10.12.2014)
1. Mr. Valerian Gratian Peris,
Aged about 59 years,
S/o Mr. Maurice Peris,
2. Mrs. Wilma Theresa Peris,
Aged about 47 years,
W/o Mr. Valerian Gratian Peris,
Both are residing at Flat No.403,
Plama Habitat, Near Sacred Heart School,
Kuleshekar, Mangalore 575 005
Both are represented by their
Son and GPA Holder,
Mr. Winston Leonard Peris
Residing at Flat No.403,
Plama Habitat, Near Scared Heart School,
Kulshekar, Mangalore 575 005.
…..........COMPLAINANTS
(Advocate for the Complainants: Smt. MNA)
VERSUS
M/s. Plama Developers Limited,
Registered Office at 2nd Floor, 312,
40th Cross, 1st Main, 8th Block,
Jayanagar, Bangalore,
Represented by its Chairman and
Managing Director Mr. P.M.A Razak
S/o late P.M. Iddinabba.
….........OPPOSITE PARTY
(Advocate for the Opposite Party: Sri DALA)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainants against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The admitted facts are opposite party entered into joint development agreement with the owner of the schedule A property to develop the same by constructing a multi-storied residential apartment condominium known as “Plama Habitat” in which opposite parties entered into an agreement with complainant on 20th July 2010 for sale of B Schedule apartment. Wherein they under took to provide special facilities and amenities mentioned in Annexure A of the agreement and undertaken to complete the project and hand over the possession of the fully constructed B Schedule Apartment on 15.6.2012 subject to complainants making all payments to opposite party. Complainant further alleges opposite party failed to deliver possession and in during the visit in April complainant found even 50% of the work is not completed and that opposite party promised to hand over the possession on or before 15.07.2012. In October 2012 the complainant found during the visit opposite party has laid the defective/damaged and colour stained tiles on the floor and not laid orderly and complainant requested to replace the tiles at their cost and opposite party agreed and also to refund a sum Rs.1,10,867 to complainant. Even though on 15.12.2012 opposite party had handed over possession of B Apartment to complainant but failed to make payment. Alleging that complainant were forced to leave in the rented house by paying Rs.9,000 per month under the terms of agreement opposite party are liable to pay rental which complainant paid of Rs.54,000. Opposite party had provided only single common water pipe connection to all 6 apartments which is situated in the same vertical column located floors in the G + 5 floor apartment building making the apartment owners to suffer. Opposite party also failed to provide original document in respect of the apartment. Hence seeks the relief claimed in the complaint.
2. The allegation of opposite party is the complainant had sought for change of certain flooring tiles of their choice which were replaced. The complainant who were fully satisfied with the work and the progress and registered the apartment in September 2012. The complainant had sought for change of certain tiles which were replaced and the difference in the value of the tiles of their choice of Rs.1,10,867/ was paid to complainants. The complainants took possession of the apartment after being fully satisfied of all the amenities and work done by opposite party in December 2012 as complainant requested for additional work in the June/July 2012. The opposite party was entitled for reasonable extension of time for the additional works and replacement of floor pipelines sought by complainant in view of clause 7(a) of the agreement under clause 10 (c) and 24 of the agreement specifically provides that the time required for modifications shall be added to the time of delivery of schedule ‘B’ apartment. By letter dated 31.7.2012 complainants requested to fix full grills and windows for the utility area within the apartment. The utility area was without grills and those who requested to provide full grills, the opposite party would provide the same at alleged statement complainants made this request. Hence there was delay as grills was to be fabricated and fixed. The entitlement on the various claims were denied and seeks dismissal of the complaint.
3. In support of the above complaint Mr. Winston Leonard Peris filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents got marked at Ex.C1 to C21 and as detailed in the annexure here below. On behalf of the opposite party Mr. P M A Razak (RW1) Chairman & Managing Director, also filed affidavit evidence and answered to the interrogatories served on him and produced documents got marked at Ex.R1 to R6 as detailed in the annexure here below.
4. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- Whether the complaint is barred by time?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsel for complainant addressed oral arguments. Opposite party filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties. Our findings on the points are as under follows:
Point No. (i) : Affirmative
Point No. (ii) : Negative
Point No. (iii) : As per the final order.
REASONS
5. POINTS No. (i): That opposite party agreed to sell developed apartment to complainant under an agreement and executed sale deed in respect thereof is undisputed. Hence there is a relationship of consumer and service provider between the parties. The claim of complainant that opposite party failed to comply the date 15.6.2012 for delivery of completely constructed apartment to complainant and that the part liability to that the squarely lies on opposite party is disputed by opposite party. Hence there is a live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
6. POINT NO. (ii): It was pointed out on behalf of opposite party even though agreed date for delivery of possession of the apartment to complainant is on 15.06.2012 sale deed was registered on 28.09.2012 and delivery of possession was mentioned in the sale deed. However admittedly finally possession was deliver to complainant on 15.12.2012. It was pointed out for opposite party that complainant intending wanted certain modifications to the apartment to be implemented and under page 5 para 6 of the agreement Ex.C3 are relevant so also clause 9 (b) of the Ex.C3 the relevant portions of page 5 para 6, & 9 (a) (b) reads:
6) The PURHASERS shall be entitled to possession of the fully constructed Schedule B Apartment by 15.06.2012, subject to the PURCHASER making all payments to the VENDORS as detailed in ANNEXURE B.
9) In the event the VENDORS delay in completing the construction of the Schedule B Apartment for reasons otherwise than set out in clauses 7(a) and 13 of this agreement, then in that event the PURCHASERS are at liberty to take any of the following actions.
- To issue the notice requiring the VENDORS to comply with the completion schedule within 30 (thirty) days of the receipt of the said notice.
- If the VENDORS delays the completion and handing over of the B Schedule Apartment to the PURCHASERS, the PURCHASERS shall be entitled to claim the rental value of the apartment, on the basis of reasonable monthly rent that the apartment any fetch if let out from month to month, for the delayed period, up to such date till the VENDORS handover the apartment. This clause will become applicable only if the PURCHASERS gave not committed any period of delay in making payments under this agreement or have not committed any breach of the terms of this Agreement.
7. Ongoing through above clause it is clear that opposite party were bound under clause 6 to deliver fully completed constructed schedule ‘B’ apartment by 15.06.2012 admittedly that date was not adhered by opposite party. But it is the case of opposite party that opposite party was entrusted with additional work and rental is to be paid as per Ex.C3 clause 9 (a) & (b). However learned counsel for opposite party referred to Ex.C13 which is the copy of the registration of the sale deed which has registered on 28.9.2012. It was argued by retaining the key opposite party completed additional work and delivered possession only on 15.12.2012. Reference was made on buyer of opposite party to clause
10 (c) and clause 24 at Ex.C3. The reference of clause 10 (c) and clause 24 reads thus:
10 (c): The cost of any modification to the Schedule B Apartment or the specifications, which can be made only with the prior approval of the VENDORS. The VENDORS may approve or reject such requirement at their discretion. In the event the VENDORS approve modification, the PURCHASER shall pay such modification charges in advance. The time required for modification shall be added to the time of delivery of the Schedule B Apartment.
24: Any modification to the Schedule B Apartment or the specifications therein can be made only with the prior approval of the VENDORS. The VENDORS may approve or reject such requirement at its discretion. In the event the VENDORS approve modifications, the PURCHASERS shall pay such modifications charges in advance. The time required for modification shall be added to the time of delivery of the Schedule B Apartment.
8. Thus it is clear when additional work was requisitioned by purchaser opposite party is entitled for belated delivery of the apartment to the complainant because of additional work, that the complainants did requisitioned additional work to the ‘B’ schedule apartment is not in dispute. However it was argued that even according to learned counsel for complainant additional work was involved in fixing the tiles in the kitchen.
9. Ex.R2 is a letter addressed by complainants it is dated 24.1.2012 the particulars of customer requirement work by complainant are:
Particulars of Customer Requirement Work
- Civil Work:
- Full wall tiling of the kitchen wall Tiles to be procured by you
- Exterior box grill for the master bedroom, window, with provision to keep potted plants.
10. The Ex.R2 at para 5 mentioned reads:
5. It is accepted that if there is delay in handing over the Apartment due to the execution of such extra works will not be condoned. The extension of time caused by the extra works will not be considered as delay in project schedule and all payment schedule shall remain unchanged i.e. the payment due as against the project schedule will be adhered to. (Highlighting is ours)
11. There would appear some inconsistence in the two sentences of para 5. However considering that there was additional work entrusted to opposite party the delay in delivering the possession on this count as rightly pointed by opposite party is to be considered as importance to second sentence of para 5 as quoted above has to be given even though this instruction to opposite party was on 24.1.12.
12. Another aspect pointed out by opposite party is that the complainants did not adhere to the payment schedule as the last instalment was paid only on 15.7.12 to opposite party. As per Ex.C13 para 2 required the last of the instalment to be paid on 02.07.2012 of Rs.1,45,348/- much after the date fixed for completion of work on 15.6.2012. Hence we are of the view for the additional entrustment of work by complainants to opposite party and delay in payment of the last instalment of the sale consideration the delay in completion of the work cannot be construed as violation of the terms and conditions of the agreement for sale Ex.C3.
13. The complainants claim they were made to come to Mangalore from abroad from where they were working to investigate the execution of work. However the contention for complainants that they were forced to undertake journey by opposite party cannot be accepted in as much as it is not the case of complainant request was made by opposite party, as opposite party had not given any invitation to come to Mangalore for inspection. Hence we are of the view complainant cannot seek compensation on this count towards the expenditure incurred by complainant from opposite party.
14. As to demand by complainant for rental till 15.12.2012 from 15.6.2012 is concerned when the delay caused cannot be attributed to opposite party in view of additional work entrusted by complainants to opposite party as per Ex.R2 and delayed payment of agreed last instalment we are of the view complainants are not entitled towards the request of the rental value from the opposite party.
15. Thus considering the entire evidence support we are of the view there is no deficiency in service on the part of opposite party. Hence we answer point No.2 in the negative.
POINT NO. (iii): Wherefore the following
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 11 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 20th June 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 Mr. Winston Leonard Peris
Documents marked on behalf of the Complainants:
Ex.C1: General Power of attorney executed by complainant No.1 (Notarised copy)
Ex.C2: General Power of attorney executed by complainant No.2 (Notarised copy)
Ex.C3: Original Agreement dated 20.07.2010
Ex.C4: Letter issued by complainant dated 11.07.2012
Ex.C5: Letter issued by complainant dated 24.09.2012
Ex.C6: Legal notice dated 12.07.2014
Ex.C7: Postal receipts
Ex.C8: Postal Acknowledgments
Ex.C9: Reply notice dated 31.07.2014
Ex.C10: Letter by Department of Posts dated 12.09.2014
Ex.C11: Receipt issued by opposite party towards advance maintenance dated 15.09.2012
Ex.C12: Receipt issued by opposite party towards deposits dated 15.09.2012
Ex.C13: Copy of sale deed dated 28.09.2012
Ex.C14: E mail along with photos dated 23.11.2012
Ex.C15: Possession certificate issued by opposite party dated 18.11.2013
Ex.C16: Copy of payment to be done from Plama side
Ex.C17: Xerox copy of lease deed dated 30.08.2011
Ex.C18: Receipt towards rent payment
Ex.C19: Bill for Rs.5,508/- dated 14.08.2012
Ex.C20: Receipt for Rs.10,500/- dated 18.08.2012
Ex.C21: Copy of the E-mail
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. P M A Razak, Chairman & Managing Director
Documents marked on behalf of the Opposite Party:
Ex.R1: Letter of acceptance dated 15.12.2012 by complainant
Ex.R2: Customer request for additional civil works to be done in the flat, list submitted by complainant on 24.01.2012
Ex.R3: Letters by opposite party handing over the flat on 18.11.2013
Ex.R4: Reply to lawyer’s notice dated 31.07.2014
Ex.R5: Leger extract from Axis Bank Ltd relating to the payment of Rs.1,45,348/
Ex.R6: Ledger extract of Axis Bank Ltd relating to the refund Payment made for Rs.1,10,867/
Dated: 20.06.2017: PRESIDENT
