Complaint filed on: 02-11-2012
Disposed on: 19-11-2012
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.2161/2012
DATED THIS THE 19th NOVEMBER 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Sri.Dheeraj Bhandary,
S/o. Subbaya Bhandary,
Aged about 31 years,
A-606, Sriram Shristhi,
Sumangali, Sevashram Road,
Hebbal, Bangalore-32,
Represented by General Power of
Attorney holder Sri.Subbaya
Bhandary,
V/s
Opposite parties: -
1. M/s. Puravankara Projects Limited, A company incorporated under the Companies Act, 1956, Having registered office at; “Geeta Vhatkar” Dealwel off no.11, Avinash Co-op. Hsg. Soc Ltd., Seven Bungalows, J.P.Road, Anderi (West), Mumbai-400 061, Represented by its Managing Director
2. M/s. Puravankara Projects Limited, A company incorporated under the companies Act, 1956. Having its Branch office at; No.131/1, Ulsoor Road, Bangalore-42. Represented by its authorized Signatory/Vice-President (CRM) Mr.Prem Naidu.
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act’1986, praying to pass an order, directing the OPs to collect a sum of Rs.7,59,805=00 and execute the sale deed in favour of the complainant, and to pay Rs.12,74,328=00 being the proposed rent and interest for delay in handing over the possession of apartment and cost of litigation.
2. The brief facts of the complaint can be stated as under:
The complainant agreed to purchase a flat no.L-STUART-1503, 15th floor in residential complex situated at Mallasandra village, Uttarahalli hobli, Bangalore South Taluk belonging to the OPs by executing agreement of sale and construction agreement on 31-3-2008 for a sale consideration of Rs.41,74,772=00, and out of it, the complainant has paid a sum of Rs.36,41,294=00, and the complainant is still liable to pay a sum of Rs.5,33,478=00. Since, the OPs have failed to complete and handover possession of the flat as on 31-10-2009, so the complainant has withheld the payment to the OPs, and the amount withheld was to be appropriated towards club house, parking lot, service tax, swimming pool etc. and it does not hamper the construction in whatsoever manner. The OPs threatened the complainant to cancel the allotment made in his favour, though there is 28 months delay in delivering the flat. The OPs have violated the terms and conditions of agreement of sale and construction agreement, the total amount payable by the complainant to OPs is Rs.7,59,805=00 + stamp duty and registration fees, the OPs are at fault and have failed to deliver possession and execute sale deed. The complainant got issued a legal notice to OPs and it is received by OPs and gave a vague and untenable reply, and there is deficiency of service on the part of the OPs, so the present complaint is filed.
3. After filing the complaint, we have heard the arguments of the learned counsel for the complainant regarding maintainability of the complaint at the stage of admission. We have gone through the averment of the complaint and relevant documents produced by the complainant.
4. Document no.1 of the complainant is the copy agreement of sale between the complainant and OPs dated 31-3-2008 in respect of flat in question by incorporating the terms and conditions, and it is signed by both parties, and in the agreement, it is stated that, the purchaser agree not to delay or withhold or postpone the payments due. Document no.2 is the copy of construction agreement between the parties dated 31-3-2008. Document no.3 is the copy of Tripartite Agreement stating that, the developer has agreed to pay the interest to the ICICI bank till September 2009 which is payable by the purchaser. Document no.4 is the copy of letter of OP dated 2-4-2009 addressed to the complainant intimating that, the project completion date is revised to April 2010, and the payment schedule towards the apartment no.L-1503 is revised and the outstanding amount including VAT as on March 2009 is mentioned in the schedule, and requested the complainant to advice his bank to make the payments accordingly. Document no.5 is the copy of advertisement given to the general public by OPs stating that, to pay only 15% and the rest of the amount to be payable at the time of taking apartment. Document no.6 is the copy of letter of the complainant addressed to the OPs praying to give him the discount price as he has paid more then 90% of the amount. Document no.7 is the copy of email letter of OPs dated 2-2-2012 addressed to the complainant informing that, apartment of the complainant is ready for possession and requested to make payment of Rs.10,99,176=00. Document no.8 is the copy of email letter of the complainant addressed to the OPs dated 7-2-2012 asking the date of completion of project and than to make full payment. Document no.9 is the copy of letter of the OPs addressed to the complainant stating that, there is delay in payment, so he is not eligible for compensation. The document no.10 is the copy of email letter of the complainant asking the OPs to provide occupancy certificate issued by the corporation and receipts of service tax and VAT paid in his name. Document no.11 is the copy of calculation sheet of rent and interest made by the complainant from November 2009 to September 2012 amounting to Rs.12,74,328=00. Document no.12 is the copy of legal notice of the complainant issued to the OPs. Document no.13 is the copy of reply given by the OP.
5. By making careful scrutiny of the documents of complainant as mentioned above, it is made crystal clear that, both the complainant and OPs together have executed an agreement of sale, construction agreement, and Tripartite agreement by incorporating certain terms and conditions, and the complainant has under taken to pay installment to the OPs as per the payment schedule given by the OPs, but the complainant has failed to pay the installment regularly, and as per the agreement still he has to pay a sum of Rs.5,54,809=00 as per the complainant. Now the complainant has come with the present complaint, praying to pass an order, directing the OPs to execute sale deed in his favour by collecting the balance amount from him, and to pay a sum of Rs.12,74,328=00 towards rent and interest and cost of litigation. Having failed to make the payment of balance as per the terms and conditions of the agreement of sale, it is not proper on the complainant to come up with the present complaint under the provision of section 12 of the Consumer Protection Act, as the scope of this forum under the provision of CP Act is very limited. If really, the OPs have not complied the terms and conditions of agreement of sale and construction agreement, it amounts to breach of agreement and in order to enforce the terms and conditions of agreement of sale, the only remedy left open to the complainant is to approach the civil court by filing a suit for specific performance of the contract and get the registered sale deed executed by paying the balance amount and seek other remedy as prayed in the present complaint and not by filing the present complaint under section 12 of the CP Act. Since, the enquiry under the CP Act is summary proceedings, so this forum ceases jurisdiction to entertain the complaint under section 12 of the CP Act, and as such, we are of the considered opinion that, the present complaint of the complainant in the present form is not sustainable. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed, as not maintainable. So, under the circumstance, no order as to cost.
Supply free copy of this order.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 19th day of November 2012.
MEMBER PRESIDENT
