Complaint filed on: 21-05-2012
Disposed on: 30-06-2012
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.1028/2012
DATED THIS THE 30th JUNE 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainants: -
1. Capt. Samir Kohli,
S/o. MP Kohli
Aged about 49 years,
Represented by his wife
And PA holder,
Smt.Geetika Kohli
2. Geetika Kohli
W/o. Capt. Samir Kohli,
Aged about 47 years,
Both permanently residing at
8305, Prestige Monte Carlo,
Doddaballapur Road,
Yelahanka, Bangalore
V/s
Opposite part: -
Puravankara Projects Ltd,
A Company incorporated under the
Companies Act, 1956
Having its registered office at
130/1, Ulsoor Road,
Bangalore -560 042
Represented by its
Vice President (Legal)
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP under section 12 of the Consumer Protection Act’ 1986, praying to pass an order, directing the OP to pay a sum of Rs.8,52,538=00 with interest at the rate of 9% per annum towards compensation for delay in handing over possession of apartment no.VJ1302 in the residential project of the OP.
2. The brief facts of the complaint can be stated as under.
On 4-2-2008 the complainant entered into a construction agreement, and an agreement of sale with the OP to purchase a flat bearing no.VJ1302 having built up area of 1610 Sq. ft. in Salvatore block of OP with the proportionate undivided share in the land, as the complainants have decided to settle down in Bangalore post retirement. The complainants paid total a sum of Rs.54.12 lakhs and out of the said amount a sum of Rs.16,96,894=00 was raised for availing home loan. The complainants started paying EMIs of Rs.21,800=00 per month from March 2008. The OP has promised to hand over the flat to the complainants on or before 30-11-2009, extendable for 6 months to complete the common area and other amenities. The OP after having collected the entire amount failed to hand over possession of the apartment on the promised date of completion, and thereby the complainants were forced to pay rents in the existing accommodation as well as paying home loan for a period of two years without having possession of the apartment and it is made financial burden on the complainant no.1 and forced him to take up employment overseas in his retired life and stay way from his family. The complainants extended their stay in the leased accommodation for 18 months and thereby suffered loss of rents to the extent of Rs.3,06,000=00 calculated at the rate of Rs.17,000=00 per month. The complainants purchased a new flat in Prestige Monte Carlo and started residing from May 2011. So, they claimed the amount of Rs.4,08,000=00. On 5-9-2011 the complainants issued a letter to the OP, stating that they have legitimate claims against the OP for the delay in handing over possession of the flat and on 5-11-2011 the OP has executed the registered sale deed in respect of the apartment in favour of the complainant including car parking area. By virtue of the delay in handing over possession of the flat and execution of the sale deed, not only did the complainants suffer the mental harassment and loss of rents and they were also forced to incur additional financial burden on account of higher stamp duty charges. On 19-2-2012 the complainant issued a legal notice to the OP, and the OP has replied to the notice repudiating the claim of the complainant. So the present complaint is filed.
3. After filing the complaint, we have heard the arguments of the learned counsel for the complainants at the stage of admission. We have gone through the averments of the complaint and relevant documents of the complainants in between the line and some important citations quoted by the learned counsel for the complainants. The document no.2 is the copy of construction agreement between the complainant and OP dated 4-2-2008, wherein it is stated that, the developer agreed handing over the flat to the second party on or before 30-11-2009 extendable for 6 months to complete the common area and other amenities and in clause no.9 it is stated that, in the event of developer delays in completing the construction evenafter a grace period of 6 months, he shall pay to the second party i.e. the complainants an aggregate sum of Rs.7,000=00 per month, after the end of the grace period till the date of completion, so also agreement of sale deed dated 4-2-2008 was executed between the parties. The complainant produced one letter dated 24-8-2010 issued by the complainant no.1 to the OP stating that for giving him possession, he is asked to sign the agreement, which states, he has no monetary claim against the developer and in view of the above, he wished to inform, that he does have a monetary claim against the OP and he shall pursue in the court of law, unless he is provided compensation as per contract, copy of declaration-cum-under taking dated 2-9-2011, stating that the complainant has taken possession of flat including car parking area pending registration of sale deed. The document no.12 of the complainant is copy of registered sale deed dated 5-11-2011 executed by the OP in favour of the complainant in respect of flat no.VG1302 inclusive of common area together with car parking space. Having taken possession of the flat by the complainants as per the deed of declaration, agreement of sale, registered sale deed, if there is any default by the OP with regard to the payment of interest for delay in handing over the possession of flat, as per the agreement it amounts to breach of contract between the parties for which the complainants have to approach the Civil Court for claiming interest and other claims, as per the agreement of sale, deed of declaration and sale deed and not by filing the present case under section 12 of the CP Act. If the complainant had prayed in the complaint, the compensation alongwith deficiency in the service of the OP in respect of construction works of flat, this forum would have got jurisdiction to entertain the complaint of the complainant. Since the complainants have prayed only compensation for delay in hading over the possession of the flat in the present complaint. So, they are not entitled to maintain the complaint in the present form, as jurisdiction of this forum ceases, after taking possession of the flat under registered sale deed and as such, the forum is declined to grant any relief as prayed in the complaint. The learned counsel for the complainants has relied on so many authorities, but we would like to refer only the important citations referred by the complainant’s counsel as under:
IV (2009) CPJ 115 (NC), Ashok Khanna –vs- Ghaziabad Development Authority
Consumer Protection Act, 1986 – Section 2 (1) (g) – Housing – Possession Delayed – Deficiency in service alleged – complaint allowed by forum – Order set aside in appeal, as no objection raised at time of taking of possession – Hence revision – Time not essence of contract proved by Brochure – complainant not rescinded contract due to non-performance – Accepted delayed performance – Question of breach of contract requiring payment of damages does not arise-order of state commission upheld.
IV (2008) CPJ 284 (NC), Punjab National Bank –vs- Meerut Development Authority
“Consumer Protection Act, 1986 – Sections 2 (1) (g) and 14 (1) (d) – Housing – Possession delayed – Flats delivered without basic facilities – Deficiency in service alleged – Time being essence of contract, albeit conditional, i.e. on making full payment, incorporated in “Brochure and subsequent letters – Contention, time not essence of contract, not acceptable – Delay of 7 years in handing over possession not explained, unjustified – OP directed to pay interest and amount spent by complainant in removing deficiencies regarding incomplete works”
Judgment of Maharashtra Consumer Disputes Redressal Commission, Mumbai, dated 29-6-2011
4. We are in respectful agreement with guidelines of the said citations. If we take present case on hand and compare the same with guidelines of the said decisions, we are of the view that, the fact of the present case on hand, and facts and circumstances of the above decisions are totally different. So the said citations referred by the complainants counsel will not come to rescue of the complainant. So look into the present case of the complainants, on the back ground of relevant documents as referred supra, we are of the view that the present complaint is not sustainable as possession of flat was already taken by the complainants as per the registered sale deed, and if anything liable to be paid by the Ops as per the agreement, the complainants can claim the amount by approaching the Civil Court and not by filing the complaint under section 12 of the CP Act and accordingly we hold that the present complaint of the complainant is not maintainable. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainants is dismissed, as not maintainable. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to the complainants.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 30th day of June 2012.
MEMBER MEMBER PRESIDENT
