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

DATED 19^TH DAY OF SEPTEMBER 2022

             ORDER

SRI.K.S.BILAGI, PRESIDENT

1.         This complaint has been filed by the complainants under section 35 of C.P.Act 2019 (herein after referred as “Act”)  against the OPs for the following reliefs.

1. Direct the OP to pay a sum of Rs.13,89,840/- to the complainants for delayed delivery of possession of apartment No.3182 in Prestige Misty Waters to them, calculated for period from 01.07.2016 to 28.02.2018.
2. Direct the OP to pay further interest at the rate of 9% per annum on above calculated amount of Rs.13,89,840/- till the date of clearance of the compensation towards delayed settlement of compensation against delayed delivery of possession of apartment No.3182 in Prestige Misty Waters,
3. Direct the OP to pay the compensation for Rs.5,00,000/- towards the mental agony and harassment, wasted time and opportunity lost, and for not being able to use an possess the said apartment.
4. Direct the OP to also pay Rs.2,00,000/- towards cost of litigation.
5. Grant any other order.

2. The case of the complaint in brief is as follows:

The complainant being the father and son having approached the OP entered into an agreement of sale and construction agreement 17.09.2014 by paying advance amount. As per the construction agreement the project was supposed to be completed by 01.07.2016 and buffer period of six months.But OP applied occupation certificate only on 23.01.2017 and intimated the complainant about granting of occupation on 21.11.2017.The OP delivered the possession of the apartment through possession letter dated 28.02.2018 and executed registered sale deed to the complainant in March 2018.

3. As per the agreement, the OP was liable to pay interest at 9% per annum for delay for delivery of possession of the apartment.  Accordingly the complainant had filed complaint No.367/2018 on the file of Hon’ble District Consumer Disputes Redressal Forum, Bangalore under Consumer Protection Act 1986 and withdrawn the said complaint to file fresh complaint.  Hence this complaint is filed.
4. Non payment of agreed rate of interest amounts to deficiency of service.
5. In response to the notice, OP appears and files version.  OP contends that the complainant had filed CC No.367/2018 on the file of the II Additional District Consumer Disputes Redressal Forum, which was returned after contested for presentation of complaint before proper commission.  The present complaint is barred by resjudicata.  The complaint is based on the registered construction agreement dated 17.09.2014 and registered sale deed dated 23.03.2019.  The complaint is barred by limitation.  There is no deficiency of service on the part of the OP.
6. The OP could not deliver the possession due to high rise in the cost raw materials and delay on the part of the authority in granting occupancy certificate.  Therefore OP requests to dismiss the complaint.
7. The complainant No.1 has filed his affidavit evidence and relied on 11 documents. The affidavit evidence of authorized signatory of the OP is filed and five documents have been marked. Heard the arguments and perused the records.
8. The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OP?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

9. 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

10. Point No.1 and 2:     Both the parties have reiterated the respective contention in their affidavit evidence. About resjudicata.  It is admitted and proved fact that the complainants had filed CC No.367/2018 on the file of the II Additional District Consumer Disputes Redressal commission, against the OP for the same reliefs.  It is proved from Ex.P11 that the present complainants had filed CC No.367/2018 and got withdrawn the same on 26.11.2021 for presentation of complaint before the proper commission by filing a memo.  It is relevant to note that the earlier case was not decided on merits.  Therefore the theory set up by the OP that present complaint is barred by resjudicata is not tenable.
11. It is pertinent to note that the complainant got withdrawn earlier in CC No.367/2018 on 26.11.2021.  It is true that the total consideration based on the agreement of sale and construction agreement was Rs.88,60,410/-.  Under 1986 act the District Forum had jurisdiction only upto Rs.20,00,000/-.  When the value of the property was upto Rs.20,00,000/- the complainant having purchased the property having more than Rs.20,00,000/- and filing complaint No.367/2018, the complaint was not maintainable before II Additional District Consumer Disputes Redressal Forum.  It means that the complainant has spent time before the wrong forum which has no jurisdiction between 15.03.2018 till 26.11.2011.  The complainant is  entitled to exclusion of this time under section of limitation Act.
12. This complaint came to be filed on 24.12.2021 under the new act.  It is relevant to note that the C.P. Act 2019 had come into force with effect from 20.07.2020.  Therefore present complaint under new act is not barred by limitation.
13. The complainant had submitted the application for booking an apartment No.3182 in Tower No.III and OP issued Ex.P1 booking formation letter.  Ex.P2 is the construction agreement dated 17.09.2014.  The clause No.5 speaks about delivery of possession, the OP agreed to complete the construction of the apartment and deliver the possession of the same to the purchaser on or before 30.06.2016 with grace time of additional six months in case of delay without having to pay to the purchaser any interest or damages.  This grace time took us to 31.12.2016.  It means the OP was liable to deliver the possession of the apartment to the complainant by 31.12.2016.
14. The OP contends that there was a delay in delivery of possession due to the delay on the part of the local authorities and due to the shortage of raw materials.  Except the say of the OP, there is nothing to accept that there was a delay in getting the raw materials.  It is relevant to note that Ex.P3 occupancy certificate dated 27.02.2017 indicates that the OP submitted an application for occupation certificate on 23.01.2017 after cut off period of deliver of possession.  Even though the occupancy certificate issued on 27.02.2017 as admitted by the complainant, the possession of the apartment was delivered to him on 27.02.2018 before execution of sale deed.  It is admitted and proved from Ex.R3 that the sale deed came to be executed on 23.02.2018. It means the complainant was deprived of possession of the apartment from 01.01.2017 to 27.02.2018.  Ex.P4 is the email of the OP to the complainant on 21.11.2017 and Ex.P5 certificate u/s 65B.  Ex.P6 is the email of OP dated 20.11.2017 addressed to the complainant which indicates that the interest payable by the developer for delay for delivery of possession 9% p.a.
15. Even though the clause 5(a) of the construction agreement indicates that possession must be delivered on or before 31.12.2016 and in case of delay without having to pay to the purchaser any interest or damages but clause 5(c) of the construction agreement clearly indicates that OP being the developer agreed to pay interest at 9% p.a., on the amount paid under the construction agreement and agreement of sale.  In view of this clause, OP is liable to pay interest.  It is also relevant to note that Ex.P9 is the statement of account issued by the OP which indicates that the complainant has paid entire amount by 30^th June 2016.  Even though payment is made to the extent of Rs.92,65,601/- but the amount paid in respect to agreement of sale and construction agreement was Rs.88,60,410/-.  Under such circumstances, the OP is liable to pay interest at 9% p.a., on Rs.88,60,410/- paid by the complainant under two agreements of the OP from 01.01.2017 to 28.02.2018.
16. Even though complainant claims interest at 9% from 01.07.2016 till 26.02.2018.  The date of delivery of possession was 31.12.2016, it means the interest at 9% payable only from 01.01.2017 till the date of delivery i.e., on 28.02.2018.  If interest at 9% for this period on Rs.88,60,410/- is calculated, the complainant is entitled only for Rs.9,30,343/- against the claim of Rs.13,89,840/- only.
17. It is specific case of the OP that the complainants have appreciated the act of the OP by addressing an email and complainants are not entitled any amount.  It is proved from Ex.R4 dated 15^th April 2018, the complainants had addressed a letter requesting the OP to accept their whole hearted appreciation for valued co-operation at all times during the period of our completing interior work in their apartment bearing No.3182.  When the complainants had issued such appreciation letter, they failed to call the OP to pay 9% interest.  It amounts for delay in delivery of possession.  Only after 15.04.2018 this complaint came to be filed on 24.12.2021.  Even though complainants are entitled to interest at 9% on 88,60,410/- from 01.07.2017 till 28.02.2018 i.e., for a period of 14 months to the tune of Rs.9,30,343/-.  In view of the appreciation letter issued by the complainant, complainant is not entitled further interest at 9% on the agreed interest payable for the delay in deliver of possession.  We fail to understand why the complainant did not request the OP to pay 9% interest as compensation for delayed possession along with their email dated 15.04.2018 as per Ex.R4.  Ex.P5 also indicates that the complainants took the possession of the apartment on 28.02.2018 with full satisfaction.  Under such circumstances, the complainants are not entitled to any amount of compensation other than 9% interest for the period mentioned with regard to delay in delivery of possession.
18. This complaint has been filed under new act, the complainant has paid Rs.2,000/- as court fee and availed service of an advocate.  But complainants claim Rs.2,00,000/- as cost of the litigation.  This claim of Rs.2,00,000/- as cost of litigation not only exorbitant but it is also unreasonable.  Therefore cost of litigation including court fee is quantified at Rs.20,000/-. Accordingly we answer point NO.1 and 2.
19. POINT NO.3: In view of the discussion referred above, the OPs are liable to pay Rs.9,30,343/- only with litigation cost of Rs.20,000/- to the complainants.  It is proper to impose time limit on the OP to comply the order. The complaint requires to be allowed in part. We proceed to pass the following;

O R D E R

1. Complaint is allowed in part.
2. OP shall pay Rs.9,30,343/- with litigation cost of Rs.20,000/- to the complainants.
3. OP shall comply this order within 60 days from this date, failing which OP shall pay interest at 10% p.a. on Rs.9,30,343/- after expiry of 60 days till realization.
4.  Furnish the copy of this order to both the parties.
5. Return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 19^TH day of September, 2022)

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

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

HAV*