Karnataka

StateCommission

CC/18/2013

Manishi Kansal, S/o. Jai Bhagwan Kansal - Complainant(s)

Versus

M/s. Prestige Estate Project Pvt. Ltd. - Opp.Party(s)

Chandan Associates

23 Jul 2021

ORDER

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

DATED THIS THE 23^RD DAY OF JULY 2021

 

 

PRESENT

 

MR. KRISHNAMURTHYB.SANGANNAVAR        : JUDICIAL MEMBER

MRS. DIVYASHREEM.                                      : MEMBER

 

Consumer Complaint No. 18/2013

 

1.  Manishi Kansal      S/o. Jai Bhagwan Kansal       2.  Mrs.SantvanaKansal,      W/o. Manishi Kansa      Both the parties are R/at 3rd Floor,      VaswaniGarden, 25 Sobani Marg,      Cuffe Parade, Mumbai 400005 (By Sri. Chandan Associates) V/s

..…Complainants

1.  M/s. Prestige Estate Project Pvt. Ltd.      'Falcon House', No. 1,      Main Guard Cross Road,      Bangalore 560001 2.  The Director,      M/s. Prestige EstateProject Pvt. Ltd.,      'Falcon House', No. 1,      Main Guard Cross Road,      Bangalore 560001 3.  The Deputy General Manager      M/s. Prestige Estate Project Pvt. Ltd.,      'Falcon House', No. 1,      Main Guard Cross Road,      Bangalore 560001       4.  The Deputy Business DevelopmentManager      M/s. Prestige Estate Project Pvt. Ltd.,      'Falcon House', No. 1,      Main Guard Cross Road,      Bangalore 560001 (By Sri. VeerandraKumar)

…Opposite parties

O R D E R

 

By Mr. KRISHNAMURTHY B. SANGANNAVAR, JUDICIAL MEMBER

 

Under Section 17 of the Consumer Protection Act, the above complaint is lodged by the complainant's seeking repayment of the amount paid by them to the OP company along with other consequential relief.

2. It is alleged by the complainants that the OPs herein had entered into a Joint Development Agreement with the owner of the property M/s. Chaitanya Properties Private Limited.  Both the OP and land owner formulated a scheme for development of residential apartments called ‘Prestige Shantinikethan’on the lands bearing Sy.Nos. 70, 71, 72, 73, 74/1, 74/2 & 77 of Sadaramangala Village and Sy.No.130 of Hoodi village, K.R. Puram Hobli, Bangalore South Taluk, now Bangalore East Taluk to an extent of 56 acres and 39 guntas.
3. Further, it is alleged that as per the terms of the Joint Development Agreement and mutual understanding the OPs entitled to sell their share of built-up areas, car parking areas and other benefits together with corresponding undivided share in the Schedule A property.
4. It is also the case of the complainants that in pursuance of the advertisement given by the OP being impressed by the features and facilities as promised, they approached the OP expressing their willingness to purchase an apartment in the said scheme of development called ‘Prestige Shantiniketan’.  The complainant was allotted 4274/6200858 undivided share described in the Schedule ‘B’ of the complaint and the complainants expressed their intention to get constructed a total area of 4274 Sq.ft. built up area of apartment and accordingly, apartment bearing No.10185 in the 18^th floor of Block-10 was allotted and allotment letter was also issued.  The total sale consideration for the said property with respect to B Schedule Property was Rs.11,19,788/- towards undivided share and Rs.1,12,14,742/- towards the cost of construction with regard to the property described in Schedule ‘C’ of the complaint.  This amount was exclusive of premium amount of Rs.75/- per sq.ft. towards allotting a pool view apartment to which the complainants agreed.  Incorporating the aforesaid conditions an agreement for sale was executed on 15^th July 2005.  Construction Agreement of even date was also executed.
5. It is further alleged by the complainants that they also made payments as per the terms of the agreement, but they noticed that the opposite parties while sending relevant documents to the banker of the complainant by name Citibank NA wrongly mentioned the installment amount as Rs.6,16,727/- instead of Rs.6,35,960/-.  This aspect was also brought to the notice of OP several times and clarification was sought by various e-mail correspondence and ultimately the OP admitted their mistakes vide e-mail dated 20.12.2007 sent by one Mrs. Leema on behalf of the OPs.  In the circumstances, the discrepancy in payments was caused due to the inefficiency of the OPs.
6. It is also the case of the complainant that asper clause 5(a) of the Construction Agreement dated 15.07.2005, the OP had undertaken to complete the construction of the apartment on or before 36 months from 01.07.2005 with grace period of three months and thus, the OPs are expected to deliver possession of the property on or before 30.09.2008, later revised by the OPs as 31.12.2008 as per letter of OP dated 01.02.2007.  However, despite the said clause, the OPs started dodging the same on one or the other pretext and periodically extended the date of delivery by stating one or the other reason.
7. It is also alleged by the complainants that after continuous follow up and persistence, the OPs finally completed their internal inspection of the apartment and fixed 15.09.2011 as the date for inspection of the schedule ‘C’ apartment by the complainants.  The complainants engaged the services of a third party by name Enviva Engineering Consultants to conduct inspection of the schedule ‘C’ Apartment and intimated the same to the OPs vide e-mail dated 07.09.2011 and that the third party, Enviva Enginering Consultants conducted their inspection on the pre-decided dated 15.09.2011 and forwarded their report to the complainants.
8. It is further contended that the report clearly discloses that the construction was sub-standard and with many flaws.  The complainants had in fact paid profuse sum of their hard-earned money to the OPs with a fond hope that they will get a high standard and high-quality construction.  However, all their aspirations were shattered by seeing the inspection report.  In the circumstances, the complainants sent e-mail notifying the sub-standard construction that the OPs had completed even after a delay of more than 3 years from the promised date of delivery.  The opposite party though promised to fix every snag vide their replies have in fact failed to do so even till date.  Even at the time of delivering possession many more snags were noted.
9. It is further alleged that after follow up and regular insistence, the OP delivered the possession on 23.12.2011, but, before delivering possession, the OPs insisted the complainants to pay balance sums, but, the complainants reserved their rights to claim damages for delay in delivery of possession as evidenced by possession letter dated 23.12.2011.  It is further stated that the complainants paid the total sum claimed by the OPs vide cheque dated 20.12.2011 in full and final settlement of the transaction value.  OPs collected a sum ofRs.4,44,094/- towards caution deposit without any rhyme and reason.  Subsequently, the complainants followed up with the OPs seeking them to pay the compensation as agreed by the OPs under Clause 5(c) of the construction agreement, but, as they did not receive any positive response issued a legal notice dated 30.04.2012 calling upon the OPs to pay a total sum of Rs.34,93,746/-.  In the circumstances, present complaint is filed seeking proper relief.
10. In the statement of version filed by the OP, it is pleaded that the complaint is not maintainable either in law or on facts.  The opposite party pleaded that the complaint filed before this Commission is barred by the law of limitation, as the complaint is filed after five years from the date of alleged cause of action which is said to have on 30.09.2008.  It is also pleaded that the complainants after taking possession of the flat got the sale deed registered in their favour on 26.11.2012.  The caution deposit of Rs.4,44,094/- collected from the complainants is towards the service tax and other charges and after deducting the same the balance caution deposit amount after adjusting the actual service taxes paid to the statutory authority, the opposite party is ready to return the balance caution deposit.
11. It is further pleaded by the OPs that as per clause 5 (a) & (b) of the Construction Agreement the time for delivery of possession is extended if there is a delay by the statutory body / authority in giving clearances, certificates etc.  Further, if there is civil commotion or any acts of god or if the delay is as the result of any rule, notification of the government or any other public or competent authority prohibiting construction activities, non-availability of construction material due to strikes, lock outs and or for any such reasons beyond the control of the opposite party.
12. It is further pleaded by the OP that the complainant is aware that due to truckers' strike, sand suppliers strike, heavy rains causing flooding and consequent suspension of construction activities, the date of delivery of possession of the flat has to be executed.  In the circumstances, OP-2 is entitled under Clause 5(a) & (b) of the construction agreement for extension of time corresponding to delay occasioned due to the reasons beyond the control of the opposite party.  The complainants are aware that it is due to force majeure conditions that the time had to be extended which in fact affected the opposite party itself in the cost of raw materials being increased thereby increasing the cost of construction.
13. It is specifically pleaded by OP-2 that clause 5 (c) is not applicable.  The opposite party explained the complainant regarding the force majeure factor while completing the project and further called upon the complainants to pay the balance sale consideration and get the sale deed registered in their favour.  The complainants fully convinced and satisfied with the opposite party paid the balance sale consideration and got the sale deed registered on 26.11.2012 and the complainants themselves fully and completely discharged the opposite party of all their obligations and also acknowledged that they have no claims against the opposite party whatsoever in nature as described in Clause 5(4) of the sale deed.
14. With regard to the allegation that the installment amount payable to the OP is wrongly mentioned in the agreement to sell as Rs.6,16,727/- instead of Rs.6,35,727/-, it is pleaded that the OP had sent the revised agreement to sell mentioning Rs.6,35,960/- is the installment amount and the complainants should have approached the bank and got it rectified.  The complainants put the blame on the OP with regard to the inspection of the property and further pleaded that the allegation of the complainants engaged the services of Enviva Engineering Consultants to conduct the inspection of the flat is not within the knowledge of the OP and as such the report furnished before the court is a false document created for the purpose of the case and thus, seeks dismissal of the complaint.
15. Both the complainants as well as the OPs filed their respective affidavits in lieu of oral evidence and complainants got marked the documents as Ex.C1 to C15. The OPs have placed citations during the course of enquiry.
16. The Commission heard the Learned Counsels.  Now we have to decide whether the complainants are entitled for refund of caution deposit along with future interest at the rate of 12% p.a. till the date of payment and entitled for Rs.24,43,746/- towards compensation under Clause 5(c) of the Construction Agreement dated 15.07.2005 as the project was delayed for more than 5 years from the promised date of delivery of possession along with future interest at 12% p.a. till payment and entitled for compensation as prayed on account of deficiency in service on the part of OPs ?
17. Let us examine documents one by one, Ex.C1 it is found, while acknowledging the receipt of Rs.15.00 lakhs towards the initial booking amount a unit in Prestige Shantiniketan, White Field is reserved with apartment No.10185 Type E-3 consisting of area of 4,274sq.ft. for a sale value of Rs.1,12,14,742/- which in fact not disputed.  Ex.C2 is revised handing over date intimation letter to read the hand over date in the agreement of sale and construction agreement as 31.12.2008 on the ground that they have been facing certain serious challenges well beyond their control as developers.  Some of the major ones that have had an adverse impact on the progress of work at site are sand suppliers strike that lasted for more than 50 days, flooding at site due to extraordinarily heavy rains in September 2005, acute ongoing shortage of skilled labour, truck strike on 3 occasions since March 2005.  This was issued on February 1^st 2007, intimating that they could not able to complete and hand over Ex.C1 apartment by the end of June 2008, which has to be read under Ex.C2 as 31.12.2008.  This complaint is filed under Section 17 of Consumer Protection Act, 1986 on 06.02.2013 after complainants obtaining a registered sale deed dated 26.11.2012 without raising any objection at that point of time.  Therefore, contentions of Learned Counsel for OPs that registered sale deed dated 26.11.2012 executed in favour of complainants by OPs supersede the previous agreement of sale and construction agreement dated 15.07.2005 arrived between parties has considerable force.  Infact OPs have taken up such defense in their version.  In Ex.C6 OPs intimated complainants that apartment No.10185 at Jacaranda Corner will be ready for handing over in the month of September 2009.  Further reminding with an offer in case complainants need for additional car parking, covered parking cost would be Rs.2,50,000/- and for uncovered car parking at Rs.1,25,000/-.   Under Ex.C7, OPs intimated on 23.07.2009 once customers have decided their items in respect of modular kitchen and wardrobes, piped gas system and certain optional items, no cancellation or changes in orders will be entertained after confirmation of the booking andthe order will be considered and confirmed only after realisation of the cheque amount.  Under Ex.C8 letter, booking of modular kitchen and wardrobes informed items will be delivered along with completion of the apartments if the orders are confirmed at the end of August 2009.  On 31.03.2010 as per Ex.C9 letter intimating complainants as to hand over of apartment No.10185 with a request to send payments at the earliest so that they could expedite the completion and hand over apartment and the details along with registration charges would be intimated within a short period.  As per Ex.C10 on 23.12.2011 apartment bearing No.10185 has been handed over to the complainants by the OPs as per possession checklist which is signed by complainants and OP concerned.Complainants have collected key under this possession checklist.  Under Ex.C11 it was intimated to complainants that OPs will continue to attend any snags and defects that complainants have noticed during takeover and same will be completed in due course.  It was also informed that Tower 10 in ‘Prestige Shantiniketan’ is complete and as per the request of complainants they have handed over vacant possession consequent upon paying full value as per agreement of sale and construction agreement dated 15.07.2005 and in view of the same they have discharged all their obligations under the agreements and requested complainants to accept by counter signing a copy of the letter in token thereof.  Ex.C12 is statement of account as on 17.12.2011 in respect of complainant No. 1 showing balance due and Rs.13,47,613/- and under Ex. C13 Rs.13,47,613/- is paid through cheque to OPs and on 23.12.2011 beforeEx.C10 and C11 could be issued or handed over apartment unit No.10185, OPs collected Ex.C13 Cheque dated 20.12.2011.  Thus, this would play a vital importance to find considerable force in the contentions of OPs that they are not deficient in extending service in respect of the promised apartment sold pursuant to agreement of sale and construction agreement arrived between the parties.  Since, complainants at the relevant point of time were also due for an amount of Rs.13,47,613/-, it is not that such an amount was paid by them to OPs before handing over of apartment or before intimation as to handing over of apartment.
18. The complainants have placed quality inspection report submitted by Enviva which could not be considered, since, OPs have not been notified before quality inspection of apartment in question.  This is dated 15.09.2011 marked as Ex.C15.  While complainants obtained sale deed on 26.11.2012.  In other words, Ex.C15 is prior to execution of sale deed which could not be considered by the Commission.  In view of Ex.C11 wherein OPs continue to attend any snags and defects that complainants have noticed during takeover and the same will be completed in due course.
19. Thus, considering overall evidence on record for force majeure, complainants have to be said waived certain terms of agreements arrived between parties.  It could be seen from copy of the sale deed dated 26.11.2012, complainants have paid Rs.5,35,000/- towards stamp duty, Rs.96,530/- towards registration and service charges.  It is not that the entire sale price, service charges, registration charges, stamp duty and amount as shown in Ex.C12 statement of account amounting to Rs.13,47,613/- was paid prior to handing over of apartment promised to be handed over in favour of complainants.  No doubt, complainants have shown under Ex.C12 an amount of Rs.4,44,094/- as caution deposit was made and to that effect OPs in their version itself have stated they have collected such amount from complainants is towards service tax and other charges and they have informed complainants that they will return balance caution deposit amount after adjusting the actual service taxes paid to the statutory authority.  As such this has to be considered by the Commission to direct OPs to return the caution deposit as undertaken either in their letter or in their version submitted to the case of the complainants.
20. This  complaint is filed 17 months after the date of taking possession of the flat, which in our opinion  is not a ground to dis-entitle them to raise consumer complaint, before the Commission under the provisions of CPA, since, complainants have shown OPs have withheld caution deposit amount even on the date of notice, complaint and even now. The OP could have deposited such amount with the Commission if really are not at fault on the said issue. The contention that OPs had sent the revised agreement of sale mentioning Rs.6,35,960/- as the instalment amount and in this regard rightly submitted complainants should have approached the bank to get it rectified, then to allege against OPs, that it was Rs.6,16,727/-.
21. Learned Counsel for OPs placed copy of order dated 16.12.2013 in consumer complaint No.51/2012, wherein it was ordered based on various decisions of the National Commission, Apex Court held complainant fails to establish the deficiency in service and thereby dismissed the complaint.  In Appeal No.2035/2012, 164/2012, 1478/2012, C.C.No.93/2012, Appeal No.1853/2012, C.C.No. 20/2012, Appeal No.2203/2011 in similar such matters wherein OPs are parties, Commission dismissed the complaints.  It is therefore, complainant cannot be held entitle for a sum of Rs.23,43,746/- towards compensation as per Clause 5(c) of the Construction Agreement dated 15.07.2005 and they cannot be held entitle for a compensation of Rs.5.00 lakhs towards mental agony and monetary loss along with future interest as prayed.  However, complainants held entitle for refund of caution deposit of Rs.4,44,094/- after deducting towards service tax and other charges.  Besides  Rs.25,000/-towards litigation costs.
22. In the above such conclusion, Commission proceeds to allow the complaint filed under Section 17 of the Consumer Protection Act, 1986 in part. Consequently, directed OPs to refund caution deposit of Rs.4,44,094/- minus service tax and other charges along with interest at the rate of 8% p.a. from the date of complaint till repayment and do pay Rs.25,000/- towards litigation costs.

Sd/-

JUDICIAL MEMBER

 

Sd/-

MEMBER

CV*