Date of Filing:15.11.2007<br /> Date of Order: 04.12.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 04TH DAY OF DECEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 2276 OF 2007<br /> <br /> Sunkada Prahlad Rao<br /> S/o. Sunkada Gopal Rao<br /> R/at III-204, Jains Prakriti Apartment<br /> 63, Kanakapura Road<br /> Jayanagar VII Block<br /> Bangalore 560 070 Complainant<br /> V/S<br /> 1. M/s. Jain Housing & Constructions Ltd.<br /> A Public Limited Company<br /> Incorporated under the Companies Act<br /> 1956, having its Regd. Office at<br /> No. 11, Somasundaran Street<br /> T. Nagar, Chennai 600 017<br /> Represented by its Managing Director<br /> Sandeep Mehta<br /> Also at Bangalore Branch<br /> At No. 316/44, 40th Cross, 8th Block<br /> Jayanagar, Bangalore 560 082<br /> Rep. by its Authorised Signatory<br /> P. Vijay Kumar, Chief Executive Officer<br /> <br /> 2. Uma Raj<br /> W/o. Hanumaraj<br /> <br /> 3. Hanumaraj<br /> S/o. Venkataswamappa<br /> <br /> 4. Suma Hanumaraj<br /> D/o. V. Hanumaraj<br /> <br /> 5. Soumya Hanumaraj<br /> D/o. V. Hanumaraj<br /> <br /> Opposite parties No. 2 to 5 together<br /> R/at No. 1523, 9th Main Road<br /> Third Block, Jayanagar<br /> Bangalore 560 011 Opposite Parties<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant seeking relief that opposite party No. 1 be directed to pay Rs. 1,80,000/- as compensation and further opposite party No. 1 be directed to provide car parking facility as per the standard specification and also allot open car parking and opposite party be directed to provide club house with modern equipments and other facilities. The complainant has also prayed that opposite party be directed to refund excess amount collected Rs. 1,20,700/-.<br /> The facts of the case are that first opposite party is a builder had entered into agreement with the complainant. Agreement of sale was entered into on 10.02.2004. Total cost of the apartment was Rs. 34,09,765/-. As per the agreement the opposite party was required to deliver property to the complainant on or before April 2005. opposite party No. 1 had agreed to pay Rs. 12,000/- p.m. by way of damages for the period of delay. Opposite party No. 1 had handed over possession of the apartment on July 2006 instead of April 2005. Therefore, there is delay of 15 months. Opposite party has promised to provide car parking facilities as per the standard specification. The complainant has paid Rs. 1,75,000/- (Rs. 1,25,000/- for covered car park and Rs. 50,000/- for surface car park). However, covered parking facility provided is measuring 9.5’X9’ which is not sufficient to park other than a maruti 800. Opposite party No. 1 has collected sum of Rs. 50,000/- towards another uncovered car park and same was not handed over to the complainant. Opposite party has grossly committed deficiency in service and therefore, liable to pay compensation for deficiency.<br /> 2. After admitting the complaint notice issued to opposite parties. Opposite party No. 1 appeared through counsel and opposite parties no. 2 to 5 remained absent. Opposite party No. 1 has filed detailed defence version running to 12 pages stating that the delivery of possession of flat was subject to the full payment of all the installments. Complainant has not paid the amount inspite of demands and only after receiving the amount possession delivered. The final payment was made on 22.06.2006 and possession delivered on July 2006. Sale deed dated 31.05.2005 was executed by the opposite party in favour of complainant. Complainant is entitled with one top covered car parking space in the basement floor and is not entitled for any uncovered car park as alleged. The complainant has been given an area 12X16’ after removing a wall to enable him to park his Maruti Swift car without any hurdles. There is no mentioning of uncovered car park in the construction agreement or in sale agreement. Fire fighting system was installed by opposite party. It is for the owners of the flat to form an association and get registered and maintain the building. The maintenance charges of Rs. 1,20,700/- collected by the opposite party has been utilized in the maintenance of entire apartment. There is no deficiency of service or whatsoever as alleged by the complainant. Allegations are baseless. Complainant has not suffered any loss or hardship. For all these reasons stated above opposite party No. 1 prayed to dismiss the complaint.<br /> 3. Respective parties have filed affidavit evidence.<br /> 4. I have gone through the entire pleadings of the parties, the documents produced by the parties and the commissioner report.<br /> 5. The points for consideration are:<br /> 1. Whether the complainant is entitled for compensation for delay in handing over possession of flat?<br /> 2. Whether the complainant is entitled for an open car park area?<br /> 3. Whether the complainant is entitled for refund of Rs. 1,20,700/- as prayed in his complaint?<br /> 4. Whether the complainant is entitled for further facilities prayed in the complaint?<br /> <br /> 6. The complainant prayed grant of Rs. 1,80,000/- as compensation for delay in handing over possession of flat. As per the case of complainant the opposite party No. 1 should have handed over possession of the flat in April 2005 as per the terms of agreement, but the flat was handed over to complainant in July 2006. Therefore, the complainant submitted that there is delay of 15 months and as per the agreement the opposite party No. 1 has to pay Rs. 12,000/- p.m. by way of damages. In this way the complainant has calculated amount of compensation as Rs. 1,80,000/-. The opposite party on the other hand submitted that delivery of possession of the flat was subject to the full payment of all the installments. The opposite party submitted that final payment of Rs. 4,00,000/- was made on 22.06.2006 by the complainant. Therefore, possession was delivered to the complainant in the month of July 2006. The learned counsel for the opposite party submitted that there is absolutely no delay in delivering possession of the flat. The complainant was present at the time of hearing the argument admitted clearly that final and last payment was made by him in the month of June 2006. It is admitted case of the complainant that he has taken possession of the flat in July 2006. Therefore, there is absolutely no delay on the part of the opposite party to deliver possession of the flat. If the complainant does not pay the installments or full and final payment he cannot expect the delivery of flat as per the agreement. Admittedly, the full and final payment of Rs. 4,00,000/- was made by the complainant in the month of June 2006 and he had taken possession of the flat in the very next month. Therefore, it cannot be construed as delay in delivering the possession. On this point no negligence or deficiency in service on the part of opposite party No. 1 can be attributed. The second relief asked by the complainant is in respect of covered car parking area. The learned counsel for the opposite party argued that as per the commitment and sale deed opposite party No. 1 had given car park area to the complainant. The opposite party No. 1 submitted that in the defence version that the complainant has been given an area of 12X16’ after removing a wall to enable the complainant to park his car without any hurdles. The complainant admitted during the course of argument that the opposite party has given covered car park area but the complainant submitted that he wants a bigger area as per the standard specification. The complainant has not proved by producing any rule or law as to what is the standard specification area for car parking. In the sale deed there is no mention of measurement of covered park area. What is stated in the sale deed is opposite party No. 1 has to provide covered car park area to the complainant except this nothing is mentioned in the sale deed. Therefore, as per the sale deed the opposite party has given one covered parking area to the complainant. The court commissioner was appointed for local inspection. The commissioner has also stated in his report that car park slot measures 9.5’X15.5’ is given and further, the commissioner had observed that car parking slot allotted is suitable for the parking of one car. So under these circumstances the complainant must be satisfied with the car parking slot allotted to him by the opposite party. The complainant cannot go on asking car parking area bigger in size as and when he changes his car. There is no any agreement between the parties for allotment of standard specification car parking area. Hence, the complainant is not entitled for any more relief under this head. The another important relief asked by complainant is in respect of refund of Rs. 1,20,700/- collected by the opposite party. During the course of argument the complainant submitted that owners association was formed and the opposite party had transferred the funds of Rs. 2,00,00,000/- to the owners’ association on 20.10.2009. Therefore, the complainant fairly and rightly submitted that he is not insisting for relief of refund of amount of Rs. 1,20,700/- collected towards maintenance charges since he has got this relief and satisfied with the transfer of maintenance funds by the opposite party No. 1 to the flat owners’ association. The complainant has also admitted that opposite party has provided club house and 8 KV power supply etc. and as regards other reliefs i.e. fire fighting system, repair of leakage in the basement of the building and repair to the drain pipes, all these things can be sorted out with the opposite party No. 1 by the owners’ association. Fortunately, the complainant himself has been elected as president of the owners’ association as submitted by the complainant at the time of argument. Therefore, the complainant can take up all other issues and matter of providing facilities etc. with the opposite party No. 1 by amicable settlement and negotiation. Complainant has also asked that opposite party may be directed to get deviations regularized from the BBMP. This matter again is between BBMP and the opposite party No.1. Therefore, this fora cannot give any direction either to the opposite party or to the BBMP. Another important aspect to be decided is in respect of open car park area to be allotted to complainant. The complainant submitted that he has paid Rs. 1,25,000/- towards covered car park area and Rs. 50,000/- towards surface car park. The complainant referred to us the letter of the opposite party dated 20.01.2004. In this letter it has been specifically stated car parking charges of Rs. 1,25,000/-. Open car park Rs. 50,000/- and in the payment schedule also it is stated that Rs. 1,75,000/- had been received from the complainant. As per the documents and pleadings of parties it is very clear that the complainant has paid Rs. 1,75,000/- for the car parking. This amount covers both the covered car park area and also open car park area. Admittedly, the opposite party No. 1 has not given or provided open car park area to the complainant. It is not the case of the opposite party No. 1 that open car park area was provided to the complainant. Learned counsel for the opposite party argued that in the sale deed there is no mention of giving open car park area to the complainant. So when this is the case why the opposite party No. 1 had received Rs. 50,000/- towards open car park and the said facilities having not given to the complainant it becomes duty and obligation of the opposite party No. 1 to refund Rs. 50,000/- received from the complainant towards open car park area. It is admittedly, not possible for the opposite party to provide open car park area to the complainant and the amounts have been received from the complainant under the head open car park. Therefore, without giving the facilities the opposite party No. 1 cannot make wrongful gain by retaining the amount. Therefore, it would be just, fair and reasonable on the part of the opposite party No. 1 to refund the amount of Rs. 50,000/- to the complainant, since opposite party No. 1 is not in a position to allot the open car park area to the complainant. The complainant being the ‘consumer’ under the definition of Consumer Protection Act, the Act being social and benevolent legislation intended to protect better interests of consumers, it would be just, fair, proper and reasonable to direct the opposite party No. 1 to refund Rs. 50,000/- to the complainant in respect of amount received towards open car park. In the result I proceed to pass the following:<br /> ORDER<br /> 7. The complaint is partly allowed. The opposite party No. 1 is directed to refund Rs. 50,000/- to the complainant within 30 days from the date of this order. In the event of non-compliance of the order within 30 days the above amount carries interest at 9% p.a. from the date of this order till payment / realization.<br /> 8. The complainant is also entitled for Rs. 2,000/- as costs of the present proceedings from opposite party No. 1.<br /> 9. Send the copy of this Order to both the parties free of costs immediately. <br /> 10. Pronounced in the Open Forum on this 04TH DAY OF DECEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />