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

DATED 15^TH DAY OF MAY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. To pay Rs.6,82,024/- being liquidated damages towards delayed delivery of flat @ 15% interest on the sale consideration paid, computed from 01.07.2017 to February 2018;
2. Refund Rs.3,008/- being the GAIL Pipe-Line Gas Connection excess amounts charged together with Rs.2,59,213/- being the excess amounts paid towards 44 sq.ft., of the reduced Carpet Area, together with interest thereon.
3. Direct the OP to execute the final deed of conveyance in favour of the complainant.
4. Direct the OP to pay compensation of Rs.6,00,000/- for mental agony suffered.
5. Pass such other orders as deemed fit.

2. The case set up by the complainant in brief is as under:-

The complainant being desirous of owning a flat has entered into an agreement of sale and construction agreement with the OP on 12.07.2014 in respect of flat bearing No.C-2053 situated on 5^th Floor, Tower/Block 2 in Prestige IV Terraces residential project of Panathur Village measuring super built up area of 1198 sq feet with one car parking space at the basement. The total consideration amount is Rs.66,01,480/-.  Apart from the payment of Rs.1,43,760/- and Rs.75,000/- towards BESCOM/BWSSB charges and generator charges.

3. As per the terms of the agreement the OP has to hand over the individual unit fit for human inhabitation after obtaining all statutory consents, permissions and licences on or before 31.12.2016 with a grace period of additional six months i.e., not later than 30.06.2017. Despite the complainant having duly fulfilled all their part of the contractual obligations the OP has failed to hand over the identified flat in favour of the complainant. On every occasion the OP and its representatives have been dodging the complainant on one or the other pretext.
4. It is further case of the complainant that the agreements obtained by the OPs are totally biased devoid and are contrary to the basic principles of equality and natural justice. The complainant having paid the entire sale consideration had been consistently following up with the OP seeking delivery of the flat, but on all occasion except for email with modified delivery dates the OP has not undertaken any activity to meet its committed deadlines. As against the complainant request for updates there have been contradictory statement given by the OP representatives.  In continuation to the foregoing referring to one such email communication dated 16.01.2017 addressed by the OPs chairman Mr.Irfan Rajaz communicating the status report of the project very specifically and unambiguously acknowledges the fact that the ongoing construction was behind the schedule and the flats/units handing over in the project to commence from July 2017 and to continue to deliver the last unit by the next two or three months there from i.e., latest by October 2017. Finally in order to cover up or shield its own breach or default the OP and his representatives have conveniently tried taking shelter under lame and unjustifiable excuses i.e., sand ban, lorry strike, shortage of labour, heavy unseasonal rains in 2013-14.  These reasons are solely attributable to the OPs own negligence.
5. It is further grievance of the complainant that without any prior intimation to the complainant despite having collected proportionate amount for each saleable area of 1198 sq.feet, the OP has arbitrarily changed/reduced the total carpet area by about 44 feet that includes a substantial change in the dimensions of living room of the identified flat.  Adding to the OPs series of unauthorized and unlawful acts in the name of Gail pipeline gas connection has been unjustifiable over charging the customers an extra amount of Rs.3,008/-.  The OP has to refund Rs.2,59,213/- + 12% GST towards each reduced carpet area and extra amount collected for Gail gas connection charges of Rs.3,008/-.
6. It is further grievance of the complainant that due to the OPs series of willful defaults, acts of omission, the complainant is put to untold hardship and huge financial losses in terms of bank loan repayments and the said acts of the OP amounts to deficiency of service. At last the complainant has also got issued a legal notice on 08.01.2020 and it was served on the OP on 13.01.2020. Inspite of service of notice the OPs remained silent. Hence the complainant has filed this complaint.
7. The complainant has filed this complaint only against OP1. After that he has impleaded OP2 and 3 vide order dated 01.02.2023.  The OP1 has filed version and the same was adopted by OP2 and 3.
8. The main contention taken by the OPs is that the complaint is not maintainable and liable to be rejected. The complaint is barred by law of limitation.  The OP has admitted about the flat No.C-2053 booked by the complainant and also the sale and construction agreement entered between them.

9. It is further contention taken by the OP is that this court has no pecuniary jurisdiction since the complaint has been filed as per the C.P.Act 1986. As per C.P.Act 1986 this commission has pecuniary jurisdiction only upto Rs.20 lakhs. In this case the claim made by the complainant is more than twenty lakhs and the complaint has to be returned to the complainant to present it before the proper jrisdictional court.

10. The complainant alleged that the cause of action first arose on 30.06.2017 but the complaint filed before this commission on 20.02.2020 i.e., after lapse of two years and hence the complaint is barred by limitation.
11. It is further contention taken by the OP that the complainant who is at default by not settling the outstanding due amount and taking possession of the apartment.  The complainant has agreed to pay the installment amount in time as per the payment schedule mentioned in the sale construction agreement.  The complainant has not paid the installment amount and hence he is liable to pay interest on delayed installment payments in a sum of Rs.1,41,615/- as per clause 4C and as per clause 1.3 of the construction agreement and agreement to sell.
12. It is further case of the OP that after construction of the complainant’s apartment and development of the entire project, the OP had applied for the occupancy certificate with the BBMP on 03.06.2017.  The BBMP has issued the occupancy certificate of the project on 16.08.2017.  The OP had immediately intimated to the complainant vide email dated 31.12.2017 that this OP can hand over the flat to the complainant by 10.11.2017, subject to clearance of all the payments towards the unit and SOA reflect nil o/s.  Inspite of receipt of email calling upon the complainant to pay the balance due and take possession of the flat, the complainant did not come forward to pay the balance due for handing over possession of the flat. The complainant has cleared the balance amount of Rs.3,94,353/- only on 21.02.2018.  The extra 4 months 10 days time taken by this OP for delivering possession of the flat is due to force majeure such as shortage of sand, increasing the cost of sand, sand suppliers strike, trucker and lorry strike, heavy and unseasonable rains slow down the construction work.  The OP has informed the complainant regarding the force majeure and extension of time in completing the project without any liability to pay the compensation.  As per clause 5B of construction agreement the time is extended for completing the construction.  As per the terms of the agreement the schedule A property i.e., the super builtup area measure 1198 sq. feet inclusive of proportionate share in all the common areas as per the agreements the OPs have constructed and deliver the same to the complainant.
13. The complainant is a software engineer and he has taken possession only after giving an undertaking that he is fully satisfied with quality of construction and measurement and there are no work pending in respect of the schedule apartment.  The OP has specifically denied that he has agreed to deliver the carpet area of 1198 sq.feet to the complainant.  The complainant with a malafide intention has illegally extorting Rs.2,59,213/- from this OP by making false allegation contrary to the agreements.
14. It is further case of the OP that they have collected Rs.3,008/- for Gail pipe gas connection from  each of the flat owners.  The complainant having willingly paid Rs.3,008/- for creating gail pipe gas connection infrastructure in his flat now cannot demand for refund of Rs.3,008/- from this OP.  This OP has got the gail connection for the project as per the guidelines of the PNGRB. The said connection is not an option and the charges are to be paid by each and every customer.
15. It is further case of the OP that the complainant is an investor who owns several flats and he with an intention of commercial purpose of earning rents has purchased flat No.C-2053 in Prestige IVY Terraces. Hence this complainant is not a consumer and the complaint is not maintainable.  The complainant has let out the flat bearing NO.C-2053 and he is residing in flat No.7093 in Prestige Ferns Residency. 
16. The OP has denied all other allegations made in the complaint and prayed for dismissal of the complaint.
17. The complainant has filed his affidavit evidence and relies on 15 documents.  Affidavit evidence of official of OP has been filed and OP relies on 10 documents.
18. Heard the arguments of advocate for the both the parties.    Perused the written arguments filed by the OP and citations relied on by both the parties.
19. The following points arise for our consideration as are:-

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

20. Our answers to the above points are as under:

Point No.1:  In the Negative

Point No.2: In the Negative

Point No.3: As per final orders

REASONS

21. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence and written arguments filed by the complainant.
22. The main objection raised by the OP is that this commission has no pecuniary jurisdiction to try this complaint, since the claim amount exceeds Rs.20 lakhs. This complaint was filed as per the old C.P.act 1986 and hence the complaint is liable to be return to the complainant for lack of jurisdiction.
23. It is pertinent to note here that this complaint was filed before this commission on 20.02.2020 and during the pendency of this complaint the new act i.e., C.P.Act 2019 came into effect.  In view of the passing of the new act the pecuniary jurisdiction of this commission increased from 20 lakhs to 50 lakhs.  This commission has got the pecuniary jurisdiction to entertain the complaint having the claim upto Rs.50 lakhs.  The claim made by the complainant in this complaint does not exceed Rs.50 lakhs and hence this commission has got jurisdiction to entertain this complaint.
24. In addition to this the OP has also raised the question of limitation in filing this complaint. As per the OP the cause of action as alleged by the complainant first arose on 30.06.2017 but the complaint was filed on 20.02.2020 and it is after lapse of two years from the date of alleged cause of action and hence the complaint is barred by time. It is pertinent to note here that even though the cause of action for the complaint arose on 30.06.2017 neither the OP delivered possession of the flat purchased by the complainant in favour of the complainant nor executed any conveyance deed. The absolute sale deed was executed only after filing of this complaint on 04.12.2023. Under these circumstances, the complainant has got the cause of action to file this complaint since it is continued till the complainant got possession and also conveyance deed in his favour from the OP.  Hence the complaint is not at all barred by any limitation or cause of action.
25. It is pertinent to note here that the complainant has claimed the relief to direct the OP to execute the final deed of conveyance in his favour.  During the pendency of this complaint, the complainant and OP have partly settled the matter and the OP has executed the sale deed in favour of the complainant dated 04.12.2023.   It is pertinent to note here that the complainant has already taken possession of the disputed flat.
26. There is no dispute about the Sale agreement and construction agreement and also the sale deed entered between the complainant and OPs. The main grievance of the complainant is that the OP has to pay a sum of Rs.6,82,024/- being liquidated damages towards delayed delivery at the rate of 15% interest on the sale consideration paid, computed from 01.07.2017 to February 2018.  
27. It is the case of the complainant that as per the sale and construction agreement Ex.P2 and P3 the OP has agreed to hand over the flat No.C-2053 measuring a super built up area of 1198 sq.feet on or before 31.12.2016 with a grace period of additional six months but not later than 30.06.2017. 
28. According to the OP they have completed the construction and obtained the occupation certificate as per Ex.R6 on 16.08.2017. They have offered the complainant to take possession of the apartment after clearing all the payments by sending an email dated 31.10.2017. Inspite of receipt of email the complainant neither paid the balance due nor taken possession of the flat. The complainant has not come forward to pay the balance amount and possession of the flat on 10.11.2017.  The complainant only cleared the balance due amount of Rs.3,94,354/- on 23.02.2018. The OP has further admitted that there was extra four months ten days delay in delivering possession of the flat was due to force majeure. As per clause 5B of the construction agreement the time was extended and he is not liable to pay any compensation to the complainant.  In addition to this the complainant has also given an Undertaking at the time of taking delivery of the possession of the flat that he is fully satisfied with the quality of construction and measurement and no work was pending in respect of the said apartment.
29. The another grievance raised by the complainant is that the OP has delivered the flat measuring carpet area of 1198 sq.feet and it is less than the agreed carpet area by 44 feet.  The OP has specifically denied that he was not at all agreed to deliver the carpet area measuring 1198 sq feet and they have agreed to deliver possession of the flat measuring super built up area of 1198 sq.feet and they have delivered the same. The complainant with a malafide intention to illegally extract Rs.2,59,213/- from this OP is making false allegation.
30. On perusal of Ex.P2 and P3 the agreement it is clear that there is no mention of the measurement of carpet area.  The OP has mentioned only the schedule A property measuring 1198 sq.feet of super built up area inclusive of proportionate share in all the common areas.  When the OP is not at all agreed to deliver the carpet area measuring 1198 sq.feet in the very agreement of Ex.P2 and P3, now the complainant cannot demand the OP to deliver the carpet area of 1198 sq feet or to pay compensation of Rs.2,59,213/- from the OP. in addition to this the complainant is an educated person and working in an IT company as an engineer, he is very much aware of all the measurements and the difference between the super built up area and carpet area. When the complainant has agreed to purchase the flat measuring super built up area of 1198 sq.feet and now he cannot demand the OP to deliver possession of the flat measuring carpet area of 1198 sq.feet. Therefore the complainant is not entitled for the refund of Rs.2,59,213/- being the excess amount paid towards 44 sq.feet of the reduced carpet area with interest.
31. The complainant is also claiming refund of Rs.3,008/- being the gail pipeline gas connection amount received by the OP.  The OP has collected Rs.3,000/- from each flat owner for giving gail pipeline connection to each apartment and he has taken the connection as per the guidelines of Petroleum and Natural Gas Regulatory Board(PNGRB).  This connection is an additional benefit provided for the benefit of the customers and it is a recent developments. When the complainant has willingly paid the amount of Rs.3,000/- to the OP for creating gail pipeline gas connection infrastructure to his flat and now he cannot demand the amount from the OP. if the complainant is not willing to have the connection he could have inform the OP before taking the connection and he may refused pay the amount demanded by the OP Rs.3,000/-. Under these circumstance, the complainant is not entitled for refund of Rs.3,000/- from the OP.
32. When the complainant has not paid the amount within the time fixed by the OP for taking delivery of possession of the flat i.e., on 10.11.2017 the complainant is not entitled to recover any amount i.e., Rs.6,82,024/- being liquidated damages towards delayed delivery of flat at the rate of 15% on the sale consideration amount paid and computed from 01.07.2017 to February 2018. Admittedly the complainant has cleared the amount only on 21.02.2018.  When the complainant has not cleared the balance amount due Rs.3,94,354/- to the OP he is not entitled for any interest or damages from the OP.
33. On this back ground, we have also gone through all the decisions cited by both the counsels. It is clear from the decision of the Hon’ble NCDRC in Consumer case NO.1395/2017 that the purchase can be said to be a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses or flats on a regular basis solely with a view to make profit by sale of such houses.  However a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged it would be difficult to say that he has purchased the house for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. 
34. The burden is on the OP to establish that the complainant has purchased the flat for commercial purpose in order to make profit. The OP has failed to establish that the complainant purchased the flat for commercial purpose.
35. The OP has already executed the final conveyance deed and also deliver possession of the flat in favour of the complainant, after the complainant has cleared the entire sale consideration amount payable to the OP.  Under these circumstances, the complainant has failed to establish the deficiency of service and negligence and damages and loss caused  due to the delay on the part of the OP.  Hence the complainant is not entitled for the relief claimed in the complaint.  Hence we answer point No.1 and point No.2 in the Negative.
36. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed.  No costs.
2. Furnish the copy of this order and 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 15^TH day of MAY 2024)

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

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