BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)

DATED THIS THE 25^th DAY OF SEPTEMBER, 2024

PRESENT

SRI RAVI SHANKAR, JUDICIAL MEMBER

SMT. SUNITA C.BAGEWADI, MEMBER

APPEAL Nos.2262/2016 AND 717/2017

The Managing Partner,

M/s Amity Group, Site No.22,

Ground Floor, Dwaraka Nagar,

BSK 6^th Stage, Channasandra                            ... Appellant/s

Bengaluru-61

Represented by Gopalakrishna.K.P,.

(Appellant is common in both appeals)

(By Sri.S.B.Totad, Advocate)

-V/s-

1.     APPEAL NO.2262/2016

1.      Mr.Shivayogi M Kallapur,

S/o Shivayogi M Kallapur,

          Aged about 49 years,

                                                                             … Respondent/s

2.      Mrs.Sheela S Kallapur,

S/o Shivayogi M Kallapur,

Aged about 42 years,

Both are residing at

No.306, Amity Harmony,

Dwaraka Nagar, BSK 6^th Stage,

Channasandra, Bengaluru-98

(R1&2- By Sri.H.P.Nagabhushana, Advocate)

2.     APPEAL NO.717/2017

1.      Smt.Poornima G.Patil

          W/o Mruthyunjaya Gouda D.Patil,

          Aged about 42 years,

                                                                             … Respondent/s

2.      Sri.Mruthyunjaya Gouda D.Patil,

Aged about 47 years,

Both are residing at

No.117, Amity Harmony,

Dwaraka Nagar,

BSK 6^th Stage, Channasandra

Bengaluru-98

 (R1&2- By Sri.H.P.Nagabhushana, Advocate)

O R D E R

BY SMT. SUNITA C.BAGEWADI, MEMBER

The Appellant is the same in both Appeals and the facts involved in these Appeals are one and the same. Two appeals filed by the Appellant/Opposite Party against the same cause of action. Hence, these Appeals are taken up together and are being disposed of by a common order.  

2. These appeals are filed by the Appellant/Opposite Party being aggrieved by the order dated 24.3.2016 and 6.10.2016 passed by the 3^rd Addl. Bengaluru Urban District Consumer Commission, Bengaluru in CC.No.1041/2015 and 1042/2015 respectively and prays to set-aside the order passed by the District Commission and to allow the appeals in the interest of justice and equity.

3. The brief facts of the complaints are as under:-

On 19-9-2011 and 19-10-2011 respectively the complainants entered into a construction agreements with the Opposite Party for the construction of apartments bearing Nos.306, 3^rd Floor and 117 first floor, Block-B, Amity Harmony, measuring 1535 sq.ft. each for a sum of Rs.33,45,600/- respectively. The Opposite Party was required to hand over possession of the said apartments for interiors on or before September 2012, with a grace time of an additional 3 months in case of delay. From June, 2012 orally, the complainants have been requesting the Opposite Party to hand over the possession of the said apartment as per the terms of the agreements i.e. on or before September, 2012, several communications were made. The Opposite Party informed them that there was a slight delay from their end. Trusting them the complainants made the remaining payment and by July, 2013, the complainants paid 95% of the agreed amount, being Rs.31,86,600/- for each apartments. On 7.8.2013 and 6.2.2014 the absolute sale deeds were registered. Since most of the work had not been completed, they were unable to shift to their home and had to cancel the said plan.

4. As per Clause 7 of the construction agreement, the Opposite Party was required to handover possession of the said apartments for interiors on or before September, 2012 with a grace time of an additional 3 months, in case of delay. The Opposite Party failed to handover possession of the said apartment to the complainants on the stated dated. As per the said agreements the Opposite Party is required to compensate the complainants for the delay at Rs.8000/- and Rs.10,000/- respectively for every months. At the time of handing over of possession, the Opposite Party had failed to ensure the provision of basic amenities. The complainants have issued a legal notice to the Opposite Party on 30-7-2014, hence these complaints.

5. Even though the notice was served on the Opposite Party, the Opposite Party failed to put his appearance. Hence placed him as exparte.

 6. After trial, the District Commission has allowed the complaints in part along with compensation and litigation expenses.

7. Being aggrieved by the said order, the Appellant/Opposite Party has preferred these appeals on various grounds.

8.  Heard arguments from both sides.

9. Perused the appeal memos and the order passed by the District Consumer Commission; we noticed that it is not in dispute that, the respondents have entered into an agreement of construction with the appellant on 19.9.2011 and 19-10-2011 respectively for an apartment No.306, 3^rd Floor and 177, 1^st floor, Block-B, Amity Harmony, measuring 1535 sq.ft. for a sum of Rs.33,45,600/- each and the Opposite Party agreed to hand over possession for interiors to the respondents on or before September, 2012 with a grace period of three months. It is also not in dispute that, the sale deeds were executed on 7-8-2013 and 6-2-2014 respectively and the respondents have taken the possession of the apartments.

10. Perused the order passed by the District Commission, we noticed that inspite of service of notice of District Commission, the appellants not appeared before the District Commission and contested the matter.

11. The District Commission after trial allowed the complainants. Aggrieved by the said order, the appellant preferred these appeals and in appeal memos stated that the District Commission has issued a notice to the site address where the office is not situated, it is only a security room. Perused the construction agreement and sale deed agreements, the address of the appellant is the same as mentioned in the cause of title of the complaints. As per the address mentioned in the complaints, the District Commission has issued the notice to the appellant hence there is no any error of the District Commission.

12. Now coming to the merit, we noticed that the appellant in appeal memo contended that, the respondents have delayed in paying the installments, as per the construction agreements and so that Rs.1/- penalty suppose to pay by the respondents at that time. The appellant has handover the possession of the flat as on the date of sale deeds itself.

13. Perused the order passed by the District Commission, it is noticed that, It is not in dispute that, the sale deeds were executed on 7-8-2013 and 6-2-2014 respectively. However as per the terms and conditions of the construction agreements, the appellant supposed to handover the possession of the apartments to the respondents on or before September, 2012 with a grace period of three months i.e. on or before December, 2012 with basic amenities.

14. It is evident that, the mail dated 11-5-2014 sent by the respondents to the appellant which reveals that in the month of May, 2014, the appellant has not delivered the possession of the flats to the respondents/complainants as per the terms and conditions of the agreements. Hence there is a delay in handing over the possession of the apartments. The appellant contended that, there was a delay in paying the installments from the respondents. However as per the agreements the respondents have paid full consideration amount which was admitted by the appellant, then the appellant to honour the delivery time mentioned in the agreements of sale. The agreements of sale is a vital and legally enforceable even after possession of the apartments which is binding on both parties.

15. Moreover the appellant has not produced any documents to show that they have handover the possession to the respondents on the date of sale deed itself. After receiving full consideration amount, the appellant has not complied with terms and conditions of the agreements and failed to hand over the apartments within stipulated time as agreed with basic amenities amounts to deficiency of service on the part of appellant.

16. Hence, considering the facts and discussion made here, we are of the opinion that, the respondents are entitled for delay compensation from the appellant. The order passed by the District Consumer Commission is just and proper. No interference is required. Accordingly, appeals are dismissed and we proceed to pass the following:-        

O R D E R

The appeals are hereby dismissed.  No order as to costs.

The impugned order dated 24.03.2016 and 6.10.2016 passed by the 3^rd Addl. Bengaluru Urban District Consumer Disputes Redressal Commission, Bengaluru in CC.No.1041/2015 and CC.No.1042/2015 are hereby confirmed.

The amounts in deposit shall be transmitted to the concerned District Consumer Commission to pay the same to the complainants.

The original of this order shall be kept in appeal No.2262/2016 and a copy thereof shall be kept in Appeal No.717/2017.  

Send a copy of this order to both parties as well as Concerned District Commission.

  SMT.SUNITA C.BAGEWADI                       SRI.RAVI SHANKAR

             (Lady Member)                                                  (Judicial Member)