Complaint filed on: 07-08-2011

                                                      Disposed on: 17-09-2012

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.1614/2012

DATED THIS THE 17^th SEPTEMBER 2012

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.GANGANARASAIAH, MEMBER

SMT.ANITA SHIVAKUMAR.K., MEMBER

Complainants: -                     

1.     Rakesh Tiku

S/o. Pran Nath Tiku

Aged about 47 years,

2.     Mrs. Keerti Tewari

W/o. Rakesh Tiku

Aged about 45 years,

Both presently residing at:

Unit 30, Rohan Ashima,

Brookefield, Bangalore-37

V/s

Opposite party: -

M/s. Prestige Estate Projects Pvt. Ltd, A company incorporated under the Companies Act, 1956 and having its registered office at Falcon house, No.1, Main Guard Cross Road, Bangalore-01

Represented by its Managing Director Mr. Irfan Razcak 

ORDER

SRI.J.N.HAVANUR, PRESIDENT

This is a complaint filed by the complainants against the OP, under section 11 and 12 of the Consumer Protection Act’1986, praying to pass an order, directing the OP to pay 42,23,915=00 being interest at the rate of 7% p.a. on the total amount paid from 1-1-2009 to 31-7-2012, to pay Rs.5,00,000=00 towards deficiency in service for not completing the construction of apartment within time stipulated, deliver and hand over possession of the apartment of complainant having obtained occupancy certificate from BBMP/BDA and to pay cost of litigation.

2. After filing the complaint, the complainants counsel filed a memo praying permission to delete the prayer no.C, i.e. deliver and hand over possession of the apartment of the complainant, and accordingly the complainants were permitted to delete that prayer, and prayer of the complainants in respect of deliver and hand over possession of apartment is deleted. We have heard the arguments of the learned counsel for the complainants 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 complainants in between line.

3. The complainant has produced the copy of agreement to sell dated 1-7-2005 between the complainants, OP and Chaitanya Properties Pvt. Ltd, for purchase of apartment bearing no.20052 in 5^th floor, block 20 of the Prestige Shanthiniketan measuring 2215 sq. ft. including of proportionate share in common areas and one car parking space in the basement level for a sum of Rs.5,80,330=00 and out of it, the OP received a sum of Rs.5,51,314=00 from the complainant and the said document was signed by both parties, the terms and conditions of the agreement are binding on both parties. Document no.3 is the copy of letter of the OP dated 1-2-2007 addressed to the complainants stating that, they reschedule the payment and requested the complainants to send the pro-form by putting their signature. Document no.4 is the copy of statement of account as on 15-6-2012 issued by the OP and as per the said statement of account, the complainants are still to pay the balance of Rs.10,27,629=00. Document no.5 is the copy of letter issued by the complainant to OP dated 27-4-2012 asking the OP to deliver the flat as per the specifications of agreement without further delay and he need an update on the status of the repair and to compensate by financial damage suffered and the complainants do not want to take possession of the apartment as soon as he is informed that it is ready and they will be visiting the site and the apartment this Saturday or mid next week to see the progress made towards completion. Document no.6 to 8 are the postal acknowledgement cards sent to the OP and others. Document no.9 is the email letter sent by the OP to the complainants stating that unit of the complainant is ready for final inspection and give them 3 days early notice and total balance is Rs.10,28,769=00. Document no.10 is the copy of email letter sent by the complainants to the OP dated 20-6-2012 stating that, they are ready to make the balance payment immediately after the final inspection and delivery of possession of the apartment and requested to advise them when the sale deed in respect of their apartment will be executed and registered. Document no.11 is the copy of letter of the OP dated 27-6-2012 addressed to the complainants calling upon to come and take possession of the apartment by settling the dues. Document no.12 is the copy of email sent by the complainant to OP calling upon to settle the interest amount of Rs.11,32,852=00 within a week otherwise they will initiate legal action. Document no.13 is the copy of postal acknowledgment cards.

4. So making careful scrutiny of the documents of complainants and also the averment of the complaint, it is made unambiguously clear that, the complainants have not yet taken possession of the apartment under registered sale deed and the complainants are still due in a arrears of amounts to be paid to the OP towards the value of apartment. Unless and until, the possession of the apartment is taken by executing registered sale deed, the complainants are not entitled to claim relief of claming the interest for delay in handing over the possession of apartment, compensation and cost, which being ancillary relief to the main relief of taking possession of the apartment. If the possession of the apartment is not handed over as per the contract entered into between the parties, it amounts to breach of contract and in order to enforce the agreement of sale, the remedy left open to the complainants is to approach the civil court by filing a suite for specific performance of the contract and ventilate their grievances for taking possession of the apartment by executing registered sale deed and other relief as prayed in the present complaint and not by filing the present complaint under section 12 of the CP Act, and according, we are of the considered opinion that, the present complaint of the complainant in the present form is not maintainable. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainants 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 17^th day of September 2012.

MEMBER                 MEMBER                 PRESIDENT