Complaint filed on: 26-07-2011
Disposed on: 30-12-2011
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1367/2011
DATED THIS THE 30th DECEMBER 2011
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Mrs.Sandya Karnad Deviah,
Aged about 46 years,
202, S7, Greenwood Regency,
Doddakanhalli, Carmelaram post,
Adjacent to Wipro Corporate office,
Sarjapur Road, Bangalore – 560 035
V/s
Opposite party: -
M/s. Prestige Estate Projects Pvt
Ltd., A company incorporated under
The company Act, 1956,
Having its registered office at
“The Falcon House”, No.1,
Main Guard Cross Road,
Bangalore – 560 001
Rep. by its Managing Director
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant under section 12 of the Consumer Protection Act’ 1986, praying to pass an order, directing the OP to pay a sum of Rs.3,14,570=00 as interest at 7% per annum on the amount paid by her from 01-10-2008 till the possession was handed over i.e. on 25-6-2010, and towards loss of income, mental agony suffering and cost.
2. The brief facts of the complaint can be stated as under.
The M/s. Chaitanya Properties Pvt. Ltd. is the absolute owner in possession and occupation of the non-agricultural lands measuring 94 acres 1.8 guntas bearing Sy.Nos.70,71,72,73,74/1, 74/2, 77 and 78 situated at Sadaramangala village and Sy.No.129/2 and 130 of Hoodi village, Krishnarajapuram hobli, Bangalore East Taluk. The OP represented that it had entered into a Joint Development Agreement with the land owner vide development agreement dated 5-2-2005, registered as document no.30229/04/05, in book no.1 and stored in CD no.KRID112, in the office of the Sub-registrar, Krishnarajapuram, and supplemental development agreement dated 28-2-2005 registered as document no.32798/2004-05 in book no.1 and stored in CD No.KRID119, in the office of the Sub-registrar, Krishnarajapuram. The OP had evolved scheme to develop the said land and accordingly, they had obtained the sanction plans from BDA for the purpose of construction of multi storied buildings consisting of both residential and commercial buildings alongwith club house and other amenities etc. in different blocks. The OP had agreed to share the built up areas and land in the agreed ratios as per their contract. The said scheme was named “Prestige Shantineketan”. Based on the above representation and offer made by the OP, the complainant had agreed to purchase a two BHK apartment measuring 1418 Sq.ft. and the OP allotted the apartment bearing no. 2034 in the 3rd floor of block No.2 at Prestige Shantiniketan, vide agreement to sell dated 28-6-2005 and construction Agreement dated 28-6-2005. The OP was required to complete the construction within 39 months from 1-7-2005, which is inclusive of 3 months grace period. As per agreement, the complainant had issued cheques towards various installments due from time to time, as per the agreement, and these post dated cheques were encashed by the OP. The complainant had paid the entire upto date consideration amount of Rs.25,67,920=00 as per schedule mentioned in the agreement. The construction of the apartment by the OP was required to be ready in all respect and be ready for occupation latest by 1st Oct.2008, evenafter the extended grace period of three months. The construction of the apartment was progressing at a snail’s pace despite the complainant having performed his part of the contract by making payments to the Ops. The construction carried out by the OP was not in proportion to the payments received and there is enormous delay in achieving the deadlines. The OP is fully aware that they are liable to pay to the complainant interest at the rate of 7% per annum on the amounts paid under agreement to sell and construction agreement for any delay in delivery of the possession of apartment and deficiency of service. The complainant had made regular enquiries with the Ops in respect of the progress of the construction and taking the possession of the apartment. The OP kept on postponing delivery of possession of the apartment with lame excuses and they promised the further dates and even then failed to keep to their commitments. The OP finally gave possession of the agreement on 26-6-2010 after several reminders and correspondence and the OP gave possession of apartment after a delay of 21 months. The complainant took possession of the apartment under protest as she was not sure as to the quality of the work and as to whether it was in a habitable condition. There was delay in handing over possession of the apartment and this has caused a lot distress and inconvenience, and the OP has to pay Rs.3,14,570=00 as per cause 5(c) of the Construction Agreement at the rate of 7% per annum. The act of delay, amounts deficiency of service and the complainant is entitled to be compensated for the same. The entire amount of Rs.25.67.920=00 that had to be paid by the complainant had been paid in time and there was no delay on her part. The sum of Rs.25,67,920=00 has been invested in the apartment and she is not able to realize any returns in the said investment during the delayed period. The complainant had incurred loss as she was not able to recover her investment and was not in a position to give the apartment on rent. That the complainant would have realized in leasing, would be 15,000=00 per month. The loss of rents at the rate of Rs.15,000=00 per month for the 21 months delay in handing over possession of Rs.3,15,000=00. Hence, the present complaint is filed, praying to pass an order, directing the OP to pay a sum of Rs.3,14,570=00 as interest at 7% per annum on the amount paid to them from 1-10-2008 till 25-6-2010, and to pay a sum of Rs.3,15,000=00 towards loss of income, and Rs.3,00,000=00 for mental agony and suffering towards deficiency of service, and to pay a sum of Rs.25,000=00 towards legal expenses.
3. After service of notice, the OP has appeared through its counsel and filed version contending inter-alia as under.
4. This forum has no jurisdiction to entertain the complaint. It is a matter of record that the complaint is filed in August 2011, which is well beyond the period of two years stipulated in section 24A. There is a statutory bar to the present complaint being admitted. The complainant is claiming under the agreement of sell and the construction agreement, admittedly, both agreements are con-terminus and together record the relationship and co-terminus with the complainant. The complainant has not arrayed M/s.Chaitanya Properties Pvt. Ltd as OP. M/s. Chaitanya Properties Pvt. Ltd. is a necessary party and its exclusion as OP is fatal. The complainant has taken possession of the apartment on 26-6-2010 bearing no.2034, 3rd floor, Block no.2, Prestige Shantiniketan, and has given her feed back and filled in the feed back form on 7-12-2010 after six months of taking possession, wherein she has graded her satisfaction with regard to the handing over of the property and quality of the property as Very satisfied, and also stated Highly appreciate the efforts of Mr.Ravi Rao, Mr.Madhusudhan and Mr.Manjunath Singh during the hand over. Morethan a year after taking possession, the complainant has raised a false and frivolous claim as an afterthought and has filed this vexatious and frivolous complaint, the complainant is estopped from pleading contrary to feed back form given by her. The complainant has falsely claimed Rs.3,00,000=00 as compensation towards, after endorsing that the complainant is very satisfied etc. 6 months after taking possession, the allegation that that any loss and injury or mental agony and distress was caused to her is totally dishonest. It is false that the complainant has suffered any loss or injury or mental agony and distress. The complainant claims interest knowing fully well that the date of completion of that apartment was subject to force majeure and that any delay in the mandatory statutory clearance, permission amounts to force majeure and entitles the OP for an extension of time under the agreement. The complainant is fully aware that there was delay in the mandatory statutory clearance. The complainant is also 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 had to be extended. The OP is entitled under clause 5 of the construction agreement for extension of time. The claim was entitled frivolous and damages have to be claimed and proved. The complainant has claimed imaginary and fanciful special and consequential damages and the OP denies not only the complainant’s right to claim and damages but also the quantum. The complainant having enjoyed the benefit of up-gradation for a year has now after a year made the aforesaid baseless claims. The complainant is free to carry out any interior work including laying Italian marble or diamond studded taps at her cost, and the wooden flooring is an upgrade and at this stage the complainant is seeking to take unfair advantage of a benefit that she has obtained without any cost. It is false that the complainant faced any injury or financial loss. The complainant is fully aware that the OP has delivered morethan it had promised and fulfilled its obligations and completed the project despite all adverse conditions beyond its control, it is a matter of fact that the OP had offered to buy back the apartment vide letter dated 16-10-2006, but the complainant did not choose to sell, and hence it is prayed that the complainant is not entitled to any reliefs as prayed, and the complaint is to be dismissed as devoid of merits.
5. So from the averments of the complaint of the complainant and objections of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, there is a deficiency in service of OP while delivering the possession of the flat to her?
2. Whether the complainant is entitled to recover the amount from OP as per agreement before this forum alongwith loss of inconvenience, mental agony and cost as prayed in the complaint?
3. What order?
6. Our findings on the above points are;
Point no.1: Negative
Point no.2: Negative
Point no.3: For the following order
REASONS
7. So as to prove the case, the complainant has filed her affidavit by way of evidence, and produced four documents alongwith list dated 26-7-2011, and two documents with list dated 8-8-2011. On the other hand, T.Arvind Pai, who being authorized signatory for OP has filed his affidavit by way of evidence and four copies of documents were produced with list dated 12-12-2011. We have heard the arguments of both sides.
8. We have gone through the averments of the complaint, objections of OP, and material evidence of both parties, scrupulously. The complainant Mrs.Sandy Karnad Devaiah has deposed in her affidavit by way evidence that, on the representation and offer made by OP, she has agreed to purchase a two bed room house apartment measuring 1418 Sq.ft, and OP allotted the apartment bearing No.2034, in the 3rd Floor of Block no.2 at Prestige Shantiniketan under Agreement of Sale and Construction Agreement dated 28-6-2005. As per agreement of apartment, the OP was required to be ready in all respects and be ready for occupation latest by 1st October 2008, evenafter the extended grace period of three months. That the construction of apartment was progressing at a snail’s pace despite, she having performed her part of contract by making payments to OP on time. The OP is fully aware that they are liable to pay interest at the rate of 7% p.a. on the amounts paid under agreement to sell and construction agreement, and she made regular enquiries with the OP in respect of the progress of the construction and taking possession of the apartment. The OP kept on postponing delivery of possession of the apartment with lame excuses, and it is failed to keep up their commitment. The OP finally gave possession of the apartment on 26-6-2010, she took possession of apartment under protest. The OP gave possession of her apartment after a delay of 21 months. The OP has to pay a sum of Rs.3,14,570=00, as per clause 5 (c) of Construction Agreement, the act of delay amounts to deficiency of service and she is entitled to be compensated for the same. The entire amount of Rs.25,67,920=00 has been paid to the OP in time. The amount of Rs.25,67,920=00 has been invested in the apartment, she was not able to realize any returns from the said investment, and she had incurred loss as she was not able to recover her investment, and she was not in a position to give apartment on rent. The rents that the complainant would be Rs.15,000=00 per month, the loss of rents at the rate of Rs.15,000=00 per month for the 21 months, it amounts to Rs.3,15,000=00. The OP has failed to use hollow bricks as per the specification in the agreement but has installed prefabricated walls and this will entail early deterioration of the walls and cause financial burden on her, and she is having difficulty in installing various implements and other such things in a solid wall. The OP was to use vitrified tiles for the flooring but instead has laid wooden flooring which is difficult to maintain and is liable to deteriorate faster and hence cause loss to her. The OP are liable to pay a sum of Rs.3,14,570=00 as interest on the amount paid by her. The OP is liable to pay Rs.3,00,000=000 towards deficiency of service, mental torture and agony. Hence, she prayed to allow the complaint as prayed in the complaint.
9. At this stage, it is relevant to have a cursory glance at the important documents of the complainant. The document no.1 of the complainant’s list dated 26-7-2011 is a copy of agreement to sell dated 28-6-2005 executed between the complainant and OP, the second document is a copy of Construction Agreement dated 28-6-2005 between the same parties, and in the construction agreement at clause no.5 (a) on page no.6, it is stated that, the construction of the schedule–C property will be completed within 36 months from 1-7-2005, with a grace time of an additional 3 months, and in clause no.5 (c), it is further stated that, the second party hereby agreed that, they are liable to pay to the first party interest at the rate of 7% per annum on the amounts paid under this agreement, and the agreement to sell for any delay in delivery of possession of the schedule-C property. On page no.12 of the Construction Agreement at para no.17, it is further stated that, in the event of default by the second party, the first party is entitled to enforce specific performance of this contract, similarly in the event of default by the first party, the second party shall be entitled to enforce specific performance of this agreement or take action as per this agreement. In the event of breach of the terms of this agreement, the same shall be referred to a sole Arbitrator to be appointed by the second party and award given by the arbitrator shall be final and binding on the parties hereto and Arbitration shall be as per the provision of the Arbitration and Conciliation Act in force, and the place of Arbitration shall be in Bangalore, and the courts at Bangalore alone shall be jurisdiction in all matters relating to this agreement. The first party as per the agreement is the complainant, and the second party as per the agreement is the OP. The document no.3 is a copy of the letter of OP dated 29-8-2008 written to the complainant stating that, the OP has completed the structures of 14 residential towers, and the remaining towers are also progressing and they will be completing another 7 towers by the last quarter of this year, and the last 3 towers by the second quarter of 2009, and the apartment of the complainant bearing no.2034 at Brooklyn Heights will be ready for handing over in the month of July 2009. The OP has produced a copy of feed back form given by the complainant in respect of her apartment no.2034. The complainant, at the time of taking possession of her flat from the OP dated 26-6-2010, has not raised any objection or little finger in respect of delay in delivery of the flat to her. On the other hand, the complainant has stated in feed back form appreciating the works of staff of the OP. It is no doubt true that in the complaint at para no.9, the complainant has stated assertively that, she took possession of the apartment under protest. But, it is pertinent to note that, the complainant has not produced any iota of the documentary evidence to show before this forum, that she took possession of the flat under protest as averred in the complaint. On the contrary, the documentary evidence produced by the OP, i.e. a copy of Feed Back Form given by the complainant makes it abundantly clear that, the complainant has not taken possession of the flat under protest. On the other hand, she appreciated the works of staff of the OP in construction of the building. After taking possession of the flat by the complainant without raising any sort of objection in respect of delay delivery of the flat, she is estopped from the contending that, there is no deficiency of service of OP in handing over the possession of the flat to her. The oral evidence of the complainant that, she received the flat under protest is not countenance by any documentary evidence. As per terms of the agreement to sell and construction agreement produced by the complainant, it is explicitly clear that, if there is any violation of terms of the agreement, both parties are at liberty to enforce part performance of contract by referring the matter to the Arbitrator. So, considering the terms of the agreement to sell and construction agreement entered into between the parties, and relevant documents of both the complainant and OP, we are of the considered opinion that, the delivery of possession of the flat late by OP to the complainant as stated in the evidence of the complainant and also in the complaint is not a deficiency in service of OP, and it amounts to breach of agreement. In order to enforce the terms of the agreement, the complainant is having rights to enforce specific performance of the contract by approaching the Arbitrator or Civil Court and not by filing the complaint before this Forum under the CP Act. Accordingly, we hold that the complainant has utterly failed to prove the deficiency in service of OP in handing over the possession of the flat to her by producing clear and cogent evidence and the complainant is having right to enforce specific performance of the agreement and recover the interest by approaching the appropriate authority as stated in the para no.17 of the Construction Agreement and not filing the present complaint under the C.P.Act, and accordingly, we answer points no.1 and 2 in a negative. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 30-12-2011.
MEMBER MEMBER PRESIDENT
