Date of Filing: 09.12.2009<br /> Date of Order: 20.01.2011<br /> <br /> 2<br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 20TH DAY OF JANUARY 2011<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 2909 OF 2009<br /> <br /> Jayanth Sringari<br /> S/o. Ramalingaiah S.M.<br /> R/at flat NO. A403, Ittina Anu Apartments<br /> Near Hopefarm Junction<br /> Whitefield Main Road, Bangalore Complainant<br /> <br /> V/S¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬<br /> <br /> 1. Renaissance Developers Properties P. Ltd.<br /> Registered office at No. 12<br /> 18th Cross, 6th Main, Malleswaram<br /> Bangalore 560 055<br /> Presently at:<br /> Renaissance Holdings & Developers P. Ltd.<br /> No. 50, 17th Cross, 8th Main <br /> Malleswaram, Bangalore 560 055<br /> Rep. by its Director Ramanj<br /> <br /> 2. Arundathi Raj<br /> W/o. Jagadish Raja<br /> Jagrithi Farm, Survey No. 5/2<br /> Ramagoundanahalli, Varthur Hobli<br /> Bangalore Taluk, Bangalore Opposite Parties<br /> <br /> ORDER<br /> By the President Sri S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act seeking damages of Rs. 4,45,000/- calculated on the basis of rent paid by the complainant for occupying rented premises, compensation of Rs. 2,00,000/- for unfair trade practice and compensation of Rs. 10,00,000/- for mental agony and deficiency in service.<br /> The facts of the case are that on 06.08.2005 the complainant entered into construction agreement with the opposite party No. 1, the built up area having 1390 sq.ft. with one covered car parking slot in basement area together with proportionate share in common area for Rs. 30,00,000/-. The opposite party No. 1 had agreed that possession of the flat / apartment No. 002 G block ground floor will be delivered on or before 30.01.2007. It was agreed that time was essence of the contract. Rs. 3,00,000/- was paid on the date of execution of agreement. The complainant paid Rs. 23,75,779/- through installments with the sole object of owning an apartment by the end of December 2007. In spite of promise and undertaking by opposite party No. 1 there was an inordinate delay in delivering of possession. The construction was going on a snail pace and in a very pathetic condition. The complainant got issued legal notice on 13.05.2008 calling upon the opposite parties to deliver possession of the flat forthwith. It was also informed that complainant is occupying rented premises and he was waiting to take possession of apartment. Notice has been served on opposite parties. Opposite party No. 1 remained silent and untouched by the legal notice. Opposite party No. 2 chose to reply to the notice. The act of non-delivery of apartment within the time stipulated under the agreement amounts to deficiency in service. Again the complainant has issued notice on 07.03.2009 to the opposite parties. Opposite party No. 1 invited the complainant to sort out the problem. During discussion opposite party No. 1 promised that title deeds and possession would be delivered on or before first week of December 2008. The opposite parties persuaded complainant to sign letter dated 01.10.2008 withdrawing the claim and demand against opposite parties. In good faith and believing the promise of opposite party of complainant signed a letter dated 01.10.2008. On the very same day another sum of Rs. 5,68,578/- was paid by the complainant to the opposite party No. 1 towards sale price. While signing letter the complainant inserted a clause in writing “provided that the possession of the flat is delivered by first week of December 2008”. Since then year has lapsed but the nothing fruitful has happened. The conduct of the opposite parties tantamount to unfair trade practice. It is submitted by the complainant that after hoping against the hope with a personified patience the complainant is constrained to file this complaint when nothing gainful happened even after lapse of years from the date of agreement. The complainant parted with total amount of Rs. 30,00,000/- being the sale consideration. The complainant is occupying a rented apartment by paying huge rent of Rs. 13,500/- p.m. Had the possession being given as promised the complainant would not have forced himself to stay in a rented apartment by paying huge rent. The complainant is entitled to claim compensation for loss and injury suffered by him due to deficiency in service and unfair trade practice. Therefore, complainant prayed that the opposite party be directed to pay Rs. 16,45,500/- along with interest and deliver possession of the apartment forthwith to the complainant.<br /> 2. Opposite party No. 1 filed version stating that on 06.08.2005 construction agreement was executed and opposite party No. 1 had agreed to construct and deliver apartment as per the specifications agreed by the parties. Sum of Rs. 3,00,000/- was paid on the date of execution of the agreement. Opposite party No. 1 submits that delivering possession of the apartment on or before 30.01.2007 was subjected to delay in obtaining sanction plan and procurement of men and materials. Whatever the payments made by the complainant have been duly acknowledged by the opposite party and receipts have been issued. Complaint has been filed with malafide intention. Opposite party has not committed any deficiency of service. Opposite party No. 1 shall not take any responsibility in case of any reasonable delay in delivery of possession of the apartment. Complainant vide letter dated 01.10.2008 addressed to the opposite party No. 1 has unconditionally withdrawn legal notice dated 13.05.2008 and also confirmed that he has no claim or demand what so ever against opposite party. The opposite parties No. 1 & 2 have together executed sale deed dated 18.10.2008 in favour of Jayanth Babu S.R., the complainant herein in terms of agreement of sale. In terms of registered sale deed dated 18.10.2008 executed in favour of complainant possession in respect of the said apartment has been duly handed over to the complainant. Opposite party submits that after taking possession of the apartment complainant requested the opposite party to carryout some minor alteration and corrections for which the key of apartment is handed over to the opposite party No. 1 to do the needful and opposite party No. 1 attending to the said work. The opposite party No. 1 prayed to dismiss the complaint. <br /> 3. Opposite party No. 2 filed separate defence version stating that he is not a party to the construction agreement. There is no privity of contract between complainant and opposite party No. 2. Opposite party No. 2 has not rendered any service to the complainant. Complainant is not entitled for any compensation. Therefore, opposite party No. 2 prayed to dismiss the complaint.<br /> 4. The complainant has filed his affidavit evidence and documents. Smt. Rajshree Muralidhar has filed her affidavit evidence on behalf of opposite party No. 1. Opposite party No. 2 has also filed her affidavit evidence.<br /> 5. Arguments are heard.<br /> 6. In the light of arguments advanced by us by the learned counsel for the parties the following points arises for consideration:<br /> 1. Whether the complainant has proved deficiency of service on the part of opposite party No. 1?<br /> 2. Whether the complainant is entitled for damages of Rs. 4,45,000/- towards loss of rent?<br /> 3. Whether the complainant is entitled for compensation of Rs. 2,00,000/- for unfair trade practice?<br /> 4. Whether the complainant is entitled for compensation of Rs. 10,00,000/- for mental agony?<br /> 7. It is undisputed fact that the complainant had entered into the construction agreement with the opposite party No. 1 on 06.08.2005. The said document is produced. Agreement of sale is also entered into between parties. Zerox copy of document is also produced. The complainant has paid consideration amount for purchasing flat. As regards payment is concerned there is no dispute. Opposite party No. 1 had also executed a registered sale deed in favour of the complainant on 18.10.2008. The copy of sale deed is also produced. As per the complainant’s case the opposite party had agreed to hand over the possession of the flat before 30.01.2007. There was inordinate delay in handing over possession. As per the promise and commitment possession was not delivered to the complainant. Therefore, the complainant got issued legal notice on 13.05.2008 calling upon the opposite party to put him in possession of the flat. Notice was duly served on opposite party. Again one more notice was issued to opposite party on 07.03.2009. During the discussion between the parties it was agreed that possession of the flat would be delivered on or before first week of December 2008. Accordingly, the complainant had given a letter dated 01.10.2008 to the opposite party withdrawing claim and demand against opposite parties. The copy of letter dated 01.10.2008 is produced by the complainant himself. In this letter the complainant stated that he has not claimed or demand against opposite parties and he unconditionally withdraw the legal notice dated 13.05.2008 which he had got issued through his advocate. The learned advocate for the complainant submitted that the complainant has withdrawn the letter dated 01.10.2008 and he demands a loss of rent as per the original construction agreement. Complainant being educated person he has himself given letter to the opposite party on 01.10.2008 with his own signature. Now he cannot be permitted in law to show that he has withdrawn the letter. So as per the letter of the complainant himself dated 01.10.2008 there is no claim against the opposite parties whatsoever up to the date of giving letter dated 01.10.2008. The claim of the complainant earlier to letter dated 01.10.2008 cannot be considered and the complainant definitely not entitled to demand any damages or compensation for delay in handing over possession of flat. The only point to be considered is after 01.10.2008 why there was delay in handing over possession of the flat. If there was any delay in delivering possession in that case whether the complainant is entitled for compensation for loss of rent. Admittedly, the sale deed had been executed on 18.10.2008, after the letter of the complainant dated 01.10.2008. Even in the sale deed also there is no mention of payment of compensation for delay in handing over possession. The complainant has not insisted for a clause in the sale deed about payment for delay in handing over possession. Therefore, when the complainant has taken sale deed on 18.10.2008 without any conditions then how can the complainant claim compensation that delay in handing over possession of flat. As per the defence version sale deed is executed on 18.10.2008. The opposite party submitted that complainant after taking possession of apartment he requested opposite party to carryout some more alteration and corrections for which the keys of the apartment were handed over to opposite party No. 1 for doing needful and opposite party No. 1 at present attending the said work. So as per this version made out in the para 31 of the version it is clear that physical and actual possession of the flat had not been handed over to the complainant after full and complete work. Admittedly, there was some work to be attended and the opposite party No. 1 has taken key of the apartment and it is attending to the said works. When this is the case the possession of the flat remained with the opposite party No. 1 till now. During the course of hearing of the present matter it was even suggested by this forum that opposite party No. 1 should hand over the possession of the flat immediately to the complainant and other issues and claims will be decided lateron on merits and both parties are directed to report the forum after taking possession of the flat. However, the interim order was not complied. Both the parties not reported back steps taken for delivering possession of apartment. However, both the learned counsel for parties submitted that compromise talks were failed and requested for hearing the main matter on merits and accordingly, arguments of both learned counsels of parties heard on main case. In this way the matter was taken for judgement. The complainant has claimed Rs. 13,500/- p.m. as loss of rent. He has claimed rent for 33 months. Total amount claimed is Rs. 4,45,000/-. The complainant having paid more than Rs. 30.00 lakhs, but was not able to get the possession of the flat within time as per the commitment. The complainant had taken sale deed on 18.10.2008. Even after sale deed also the complainant was not in a position to enjoy property and he had not taken possession of the flat since, some minor work was to be attended by the opposite party No. 1. From the month of November 2008 delay in handing over possession shall have to be taken into consideration. For 2008 year there was delay of 2 months and for the year 2009 it is 12 months and for the year 2010, 12 months. By the end of 2010 there was a delay of 26 months. The complainant is claiming Rs. 13,500/- p.m. as loss of rent. This is only an imaginary figure stated by the complainant. There is no basis or any document to support his case that there is loss of rent of Rs. 13,500/- p.m. Admittedly, the complainant has not produced any documents to show that he had been paying rent of Rs. 13,500/- p.m. for his rented building. Secondly, there is no clause or agreement in the construction agreement for payment of Rs. 13,500/- p.m. as loss of rent. In the absence of any documentary evidence it is very difficult to accept the case of the complainant that there was loss of Rs. 13,500/- p.m. towards rent. However, taking into consideration of facts and circumstances of the case and amount paid by the complainant for purchasing flat it would be just, fair and reasonable to grant Rs. 10,000/- p.m. as loss of rent. Since, there is delay of 26 months by the end of 2010 from the date of sale deed, the complainant is entitled for Rs. 2,60,000/- as compensation for delay in handing over possession. Non-delivery of possession of the flat even after receipt of entire sale consideration amount definitely amounts to deficiency in service on the part of opposite party No. 1. The Hon’ble National Commission and several State Commissions have held in several cases delay in handing over possession of flat amounts to deficiency in service on the part of builder and the complainant is entitled for compensation. In this case also the opposite party No. 1 has made delay in handing over possession of the flat even though he had received the entire sale consideration amount from the complainant. It is again unfortunate that the opposite party No. 1 failed to put complainant in actual possession of the flat even after sale deed. Therefore, since, there was delay of 26 months from the date of sale deed till the end of 2010, the complainant is definitely entitled to be compensated for loss of rent.<br /> 8. The complainant had claimed Rs. 10,00,000/- as compensation for mental agony and Rs. 2,00,000/- as compensation towards unfair trade practice in his complaint. The complainant has not made out his case as to how he has suffered mental agony and harassment. There is no sufficient pleading and proof to claim compensation of Rs. 10,00,000/- for mental agony and also compensation of Rs. 2,00,000/- for unfair trade practice. Without there being any evidence or proof it is very difficult to award compensation for mental agony and unfair trade practice. Therefore, on the facts of the case this is not a fit case to grant compensation for mental agony and unfair trade practice. The opposite party No. 2 is a formal party. No relief is claimed against opposite party No. 2. Moreover there is no privity of contract between opposite party No. 2 and complainant. Therefore, no order against opposite party No. 2 can be passed. In the result I proceed to pass the following:<br /> <br /> ORDER<br /> 9. The complaint is allowed. The opposite party No. 1 is directed to handover possession of the flat No. 0002 in Block ‘G’ in the Ground Floor in Renaissance Jagrithi - Phase II to the complainant within 30 days from the date of this order. However, opposite party No. 1 is directed to pay Rs. 2,60,000/- to the complainant as compensation for delay in handing over possession of the flat.<br /> 10. If the opposite party No. 1 fails to handover possession of the flat within 30 days as ordered above the compensation of Rs. 10,000/- p.m. will continue to be payable to the complainant by opposite party No. 1 till handing over of actual possession of the flat to the complainant.<br /> 11. The complainant is also entitled for Rs. 5,000/- as costs of the present proceedings from opposite party No. 1.<br /> 12. Send the copy of this Order to both the parties free of costs immediately. <br /> 13. Pronounced in the Open Forum on this 20TH DAY OF JANUARY 2011. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />