D.O.F:23/12/2016
D.O.O:30/06/2022
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION KASARAGOD
CC.No.321/2016
Dated this, the 30th day of June 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Jubair,
S/o. Abdul Majeed,
Mubarak Manzil,
Neeroli, Mogral
Kasaragod Taluk & District : Complainant
(Adv: S. Mahalinga)
And
1. P. Abdul Khader,
S/o Late P.A . Rahman
White House, Manjeshwar
Manjeshwar Taluk, Kasaragod : Opposite Parties
2. S.M. Manzoor
S/o MuhammedAli
Shabana Manzil, Bappayithotti
Manjeshwar Taluk, Kasaragod
(Adv: Naveen. S.N)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed under section 12 of the Consumer Protection Act, 1986 (as amended)
The facts of the case in brief is that the complainant had proposed to purchase a flat with car parking facility in the ground floor of "Galaxy Residency " of the opposite parties and has paid Rs.13,00,000/- towards the consideration and the opposite parties has agreed to deliver the flat in Sept. 2014 as per the agreement dated 07.01.2014. The opposite party has not delivered the flat as agreed. The opposite parties did not provide water supply, car parking, and compound wall enclosing the building. The complainant requested to the opposite parties through mediators to complete the furnishing work in the kitchen, including fixing of tiles, then the opposite parties told that the same to be completed by complainant himself as the opposite parties has no funds and the amount spent would be deducted from the balance amount at the time of final settlement. Accordingly the complainant completed that furnishing work spending Rs 19,112/- and Rs.1800/- towards transport charges and paid Rs 90,000/- towards balance as per the agreement dated.23.06.2016. Hence the car parking area to be registered in the name of the complainant. The Complainant is entitled to demand the rent for the flat at the rate of Rs.8,000/- per month from the opposite parties till the handing over the flat.
Since the opposite parties did not take interest in completing the construction work of the Flat and its handing over, the complainant approached the SHO Kumbla with a complaint, but they did not take any action as this is a civil dispute. Hence this complaint is filed for a direction to the opposite parties to pay Rs.4,34,922/- as compensation for the loss sustained by him due to service deficiency of the opposite parties.
The opposite party entered appearance and filed written Version.
As per the written version of the opposite parties the complaint is false frivolous and filed with ulterior motives and not maintainable.
It is admitted that the complainant has proposed to purchase a flat in the ground floor of Galaxy Residency. But the allegation that he had paid Rs 13,00,000/- on07.01.2014 etc. are opposed to facts. It is submitted that the complainant who was working abroad approached the opposite parties through one Abdul Khader and opted to purchase Flat No.105 in the ground floor, for which the price fixed was Rs. 17,30,000/-. An agreement dt. 07. 01.2014 was entered in to and Rs.10,00,000/- was paid by the complainant and Rs. 3,00,000/- was agreed to be paid by him on or before 06.05.2014 and the balance Rs. 4,30,000/- was agreed to be paid by him at the time of the registration on or before 06.09.2014. The complainant failed to pay Rs. 3,00,000/- as agreed with in stipulated time and this caused prejudice to the opposite parties in the construction work and hence after much deliberations a fresh agreement dt.07.10 .2014 was executed between the parties and as per which the complainant has paid Rs 3,00,000/- by way of a cheque and the registration of the flat was mutually extended by 8 months from 06.09.2014 to 07.06.2015 that too on payment of balance consideration of Rs 4,30,000/- by the complainant.
There after the construction work of the Flat completed with all latest amenities like car parking, water facility, and compound wall etc. by June 2015 excluding the interior work to the choice of the purchasers and the opposite parties approached the complainant to hand over the flat, but he was abroad. lt was specifically mentioned in the first agreement dated 07.01.2014 that if the complainant is willing to have a car parking he should pay extra amount for the same. On arrival of the complainant from abroad in June 2016, he expressed his willingness to purchase a car parking at cost of Rs.1,10,000/- and after setting off the amount of Rs 20,000/- spent by him for furnishing the kitchen of his flat , a sum of Rs.90,000/- was paid by the complainant.
The complainant then approached the opposite parties and demanded to register and deliver the flat to him without payment of the balance consideration amount of Rs. 4,30,000/-. Since the opposite parties is not ready for that the complainant started to coerce the opposite parties by police complaint etc. This complaint also is a part of that game.
There is no unfair trade practice or service deficiency on the part of the opposite parties. The complainant is not entitled for any relief as prayed for and the complaint is liable to be dismissed.
The complainant’s power of attorney holder Mr. Sakkeer filed proof affidavit in lieu of chief examination and documents Ext. A1 to Ext. A6 are marked. Mr. Sakkeer was cross examined as PW 1. The Ext - A1 is the copy of sale agreement dated 07.01.2014, Ext. A 2 is the copy of sale agreement dated 07.10.2014, Ext. A 3 is the copy of sale agreement dated 23.06.2016 Ext. A 4 is the purchase bill for R.19,122/- dated 07.10.2014 Ext. A 5 is the copy of complaint dated 21.12.2016, Ext. A 6 is the Acknowledgement Receipt dated 07.10.2014 from Kumbla police station.
From the side of the opposite parties, OP No.2 filed proof affidavit in lieu of chief examination and was cross examine as DW1 and documents Ext. B1 to Ext.B6 are marked. Another witness Mr. Abdul khader also examined as DW2.
Ext.B1 is the Building Tax Receipt issued by the Mangalpady Grama Panchayath. Ext.B2 series (8 in number )are the Residential/ownership certificates issued by the Mangalpady Grama Panchayath, Ext.B3 series are Electicity Consumer profiles (3 in number ), Ext B4 is the copy of the LPG gas connection pass book.
Based on the pleadings and evidence of the rival parties in this case the following issues are framed for consideration.
1. Whether there is any service deficiency on the part of the opposite parties?
2. If so, what is the relief?
For convenience, both these issues are considered together.
Here the specific case of the complainant is that he had proposed to purchase a flat with car parking facility in the ground floor of "Galaxy Residency " of the opposite parties and has paid Rs.13,00,000/- towards the consideration and the opposite parties has agreed to deliver the flat in Sept.2014 as per an agreement dated 7.01.2014. The opposite party has not delivered the flat as agreed. The opposite parties did not provide water supply, car parking, compound wall enclosing the building. The complainant requested to the opposite parties through mediators to complete the furnishing work in the kitchen, including fixing of tiles, then the opposite parties told that the same to be completed by complainant himself as the opposite parties has no funds and the amount spent would be deducted from the balance amount at the time of final settlement. Accordingly the complainant completed that furnishing work spending Rs 19,112/- and Rs.1800/- towards transport charges and paid Rs 90,000/- towards balance as per the agreement dated.23.06.2016. Hence the car parking area to be registered in the name of the complainant. The Complainant is entitled to demand the rent for the flat at the rate of Rs.8, 000/- per month from the opposite parties till the handing over the flat.
The opposite parties admit that the complainant has proposed to purchase a flat in the ground floor of Galaxy Residency. But the allegation that he had paid Rs 13,00,000/- on 07.01.2014 etc. are opposed to facts. It is a submitted that the complainant who was working abroad approached the opposite parties through one Abdul Khader and opted to purchase Flat No.105 in the ground floor, for which the price fixed was Rs. 17,30,000/-. An agreement dt. 07. 01. 2014 was entered in to and Rs.10,00,000/- was paid by the complainant and Rs. 3,00,000/- was agreed to be paid by him on or before 06.05.2014 and the balance Rs.4,30,000/- was agreed to be paid by him at the time of the registration on or before 06.09. 2014. The complainant failed to pay Rs. 3,00,000/- as agreed with in stipulated time and this caused prejudice to the opposite parties in the construction work and hence after much deliberations a fresh agreement dt.07.10 .2014 was executed between the parties and as per which the complainant has paid Rs 3,00,000/- by way of a cheque and the registration of the flat was mutually extended by 8 months from 06.09.2014 to 07.06.2015 that too on payment of balance consideration of Rs 4,30,000/- by the complainant. There after the construction work of the Flat completed with all latest amenities like car parking, water facility and compound wall etc. by June 2015 excluding the interior work to the choice of the purchasers and the opposite parties approached the complainant to hand over the flat, but he was abroad. lt was specifically mentioned in the first agreement dated 07.01.2014 that if the complainant is willing to have a car parking he should pay extra amount for the same. On arrival of the complainant from abroad in June 2016, he expressed his willingness to purchase a car parking at cost of Rs.1,10,000/- and after setting off the amount of Rs 20,000/- spent by him for furnishing the kitchen of his flat , a sum of Rs.90,000/- was paid by the complainant.
Therefore the main issue is that whether there was any delay on the part of the opposite parties in handing over the flat after completing all the necessary amenities as per the agreement. The opposite parties state that the construction work of the Flat completed with all latest amenities like car parking, water facility and compound wall etc. by June 2015 excluding the interior work to the choice of the purchasers and the opposite parties approached the complainant to hand over the flat, but he was abroad. This may not be correct since as per his own version the complainant expressed his willingness to purchase a parking area by paying Rs.1,10,000/-only in June 2016. Another aspect in this case is that admittedly the complainant failed to pay the balance amount in time as per the agreement dated.07.01.2014 ( Ext.A1).As per the agreement the complainant had to pay Rs.3,00,000/- on or before 06.05.2014. That was not done. The opposite parties state that the complainant failed to pay Rs. 3,00,000/- as agreed
within stipulated time and this caused prejudice to the opposite parties in the construction work and hence after much deliberations a fresh agreement dt.07.10 .2014 was executed between the parties and as per which the complainant has paid Rs 3,00,000/- by way of a cheque and the registration of the flat was mutually extended by 8 months from 06.09.2014 to 07.06.2015 that too on payment of balance consideration of Rs 4,30,000/- by the complainant. But the Ext. A2 agreement is also ended without performing and both the parties entered in to a 3rd agreement, which is Ext. A3. As per the Ext A 3, the sale agreement dated 23. 06 .2016, it is stated that the flat includes a car parking area , for which the purchaser has to pay Rs 1,10,000/- and the purchaser issuing the cheque No.777895 in account 31715496143 , the seller shall present the cheque in the bank and receive the amount and allot car parking area fixed by both parties. It implies that the parking area is a new item which was not in the earlier agreement and the complainant has to pay an amount of Rs 1.10,000/-for that in addition to purchase price of the flat fixed earlier .But this agreement also not executed as such, instead as per the version of the opposite parties it is revealed that after setting off the amount of Rs 20,000/- spent by the complainant for furnishing the kitchen of his flat , a sum of Rs.90,000/- was paid by the complainant to the opposite parties, for parking area.
It is pertinent to note that no time limit for handing over of the key of the finished Flat by executing and registering the sale deed is extended further as per the Ext. A3 agreement.
The Ext.A3 only states that in case the seller fails to execute and register the sale deed as per the terms and conditions of this agreement before the said stipulated date as aforesaid, then purchaser have the right to get the same registered through legal process in specific performance on the strength of this agreement and seller are liable for all the losses and expenses incurred by the seller in that connection.
Here the complainant did not produce any document to show that he was ready with the amount of Rs. 4,30,000/- the balance amount and approached the opposite party for registration, at any time.
He has not sent any demand notice or any written request, expressing his willingness to pay the balance amount and get the Flat registered in his name.
As per Ext. A1, the sale agreement dated 07.01.2014., it is also agreed that if the purchaser fails to pay the balance sale consideration amount, the advance paid by the purchaser will be forfeited.
The opposite parties state that the complainant approached them and demanded to register and deliver the flat to him without payment of the balance consideration amount of Rs. 4,30,000/-, which was against the agreement and they were unable to do that. Since the opposite parties is not ready for that the complainant started to coerce them by filing police complaint.
In all the Sale agreements Ext. A 1 to A3, it is stated that the total price amount fixed for the flat is Rs.17,30,000/- excluding the price for the parking area. It is also come in evidence that the complainant paid only Rs.13,00,000/- and there is an amount of Rs.4,30,000/- remains as balance. But the complainant is silent about the payment of that amount. In the Ext. A 5, the copy of the police complaint dt. 21.12.2016 also, he did not mention any thing about the balance amount of Rs. 4,30,000/-. ln this situation, it cannot be held that the opposite parties are only responsible for the non - registration of the sale deed and non - delivery of the key of the Flat.
The opposite parties state that the construction work of the Flat completed with all latest amenities like car parking, water facility, and compound wall etc. by June 2015 excluding the interior work to the choice of the purchasers and the opposite parties approached the complainant to hand over the flat but the complainant denies that contention. The opposite party did not produce any evidence for that. Admittedly the opposite parties did not inform the fact of completion of the Flat with all required facilities and their readiness to execute Sale Deed in favour of the complainant by writing. The documents Ext. B2 series which are certain Residential /owner ship certificate in the name of opposite party No.2 obtained for the purpose of applying for electric connection. There is no document to show that any of these Residential /owner ship certificate is related to the Flat No.105 booked by the complainant. The complainant's case is that the opposite parties did not care to finish the work of the Flats with necessary facilities and hand over the key to him as per the agreement. The complainant states that the opposite parties did not provide water supply, car parking , compound wall enclosing the building. The Opposite Parties did not care to produce any document to show that there is facility of water supply. The opposite party No .2, deposed during cross examination that there are altogether 24 flats and out of that 12 flats are yet to complete. It is also deposed that there is no document to show that construction flat is completed in the year 2015. It appears that this attitude of the opposite parties in not providing water supply , car parking compound wall enclosing the building created some prejudice in the mind of complainant and he abstained from further payment of amount . The complainant, being a consumer having paid a huge amount as advance towards the purchase price of the Flat , is entitled for demanding the registration of Sale deed and handing over of the key of the finished Flat and the opposite parties have a duty towards the complainant for being ready with the finished Flat with in stipulated time.
Here the opposite parties have not produced any document to show that they were ready to execute and register Sale Deed and hand over the key of the finished Flat to the complainant with all necessary amenities within the stipulated time as per the agreement.
Hence it can be held there is service deficiency on the part of opposite parties.
Therefore with the facts and circumstances of the case, this commission is of the view that there is service deficiency on the part of the opposite parties, due to which complainant suffered mental agony and hardship. The complainant is entitled for getting the key of the finished Flat with all required amenities by executing and registering the Sale deed, on payment of balance in consideration amount.
The complainant states that he is entitled for the rent for the flat at the rate of Rs.8,000/- per month and prays to give direction to the opposite parties to pay lump sum amount. Since the complainant could not prove that he was ready with the balance amount of Rs.4,30,000/- and approached the opposite party at any time , such a prayer cannot be entertained. But he is entitled for a nominal compensation for mental agony due to the service deficiency of the opposite party. This commission hold that Rs. 25,000/- will be a reasonable compensation.
Here it is revealed that the complainant has paid a total of Rs 14,10,000/- towards the price of the Flat including the price of parking area.
Therefore this commission is of the view that the complainant is entitled to get the Flat with parking area with all its facilities like water supply, compound wall etc. at the event of payment of the balance price amount of Rs.4,30,000/-.
In the result the complaint is allowed in part, directing the opposite parties to hand over the key of finished flat No.105 at ground floor booked by him, with facilities of parking area, compound wall , water supply etc .by executing and registering a sale deed in favour of the complainant, after receiving the balance price amount of Rs. 4,30,000/- or return the amount of Rs. 14 ,10,000/- to the complainant with interest at the rate of 8% per annum from 23.12.2016, the date of complaint, to the date of payment. The opposite parties are also directed to pay Rs. 25,000/- (Rupees Twenty Five thousand only) towards compensation and Rs.5,000/- (Rupees Five thousand only) as costs.
Time for compliance is 30 days from receipt of the copy of the Judgement.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1 to A3 - Sale Agreement
A4- Retail Invoice
A5- Copy of complaint Dt: 21/12/2016
A6- Acknowledgement receipt of petition.
B1- Building tax receipt
B2- Series (8 in number)- Residential/Ownership certificate
B3- Series (3 in number)Electricity Consumer Profiles
B4- Copy of the LPG gas connection pass book.
Witness Examined
Pw1- Sakeer.K.A
Dw1- Sheik Muhammed Manzoor
Dw2- Abdulkhader
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
