BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 26/03/2011

Date of Order : 31/07/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 171/2011

Between

And

O R D E R

Paul Gomez, Member.

1. The following facts prompted the complainant to file this complaint :-

The complainant entered into an agreement with the opposite parties for purchasing an apartment along with undivided share of property. A construction agreement was also executed for Rs. 16,20,500/- on the same day. The 4^th opposite party handed over possession only on 30^th December 2010 against the agreed date of 31-03-2008. The opposite parties agreed to pay Rs. 1,80,000/- towards compensation for delay, but the complainant was humiliated in the office of the opposite parties when he approached them to collect the said amount. Moreover, basic amenities such as water supply was denied, even after the complainant commenced his residence there. The complainant was compelled to continue his stay in the rented house due to delay in handing over possession. Hence this complaint demanding various reliefs.

2. The version was filed by the opposite parties 1 to 3 jointly, where it is admitted that the impugned undivided share of property was executed by them, being the owners of the property. All other allegations are denied, since they were total strangers to the agreement that was executed with the 4^th opposite party.

3. The 4^th opposite party filed separate version. It is alleged that the payment schedule attached to the agreement was not followed by complainant. The possession was handed over on 20-03-2009. The averment regarding agreement for payment of Rs. 1,80,000/- is denied. Work in connection with water connection is in progress. The 4^th opposite party has made alternate arrangement for the supply of water in the apartment, similarly the allegation of ill treatment of the complainant, when approached to collect the compensation also is denied. Hence it is urged to dismiss the complaint with costs.

4. The Power of Attorney Holder for complainant was examined as PW1. Exts. A1 to A15 were marked on his side. Witness for opposite parties 1 to 3 was examined as DW1. Witness for the 4^th opposite party was examined as DW2 and the document was marked as Ext. B1. The learned counsel appearing for parties were heard.

5. The following points arise for settlement :-

1. Whether there was delay in handing over possession?

2. What are the reliefs, if any?

6. Point No. i. :- The dispute is basically regarding delay occurred in the construction of an apartment. Ext. A3 agreement for construction of an apartment on the 4^th floor of the building as 4 A 4 in the apartment complex called 'Mystic Charms'. It is pertinent to note that the aforesaid agreement was executed between the complainant and the 4^th opposite party only. Therefore, we are at a loss to appreciate, how the opposite parties 1 to 3 have been included in the party array.

7. DW1 who deposed on behalf of the opposite parties 1 to 3 has disclosed that they are not responsible for delay in construction of the apartments in the fourth floor, which is the responsibility of the 4^th opposite party as per the agreement among the opposite parties. PW1 also has admitted that there is no such agreement with the opposite parties 1 to 3.

8. Clause 6 stipulates that 30-12-2007 is the appointed date for completion of construction and 31-03-2008, for handing over possession. It is claimed by the 4^th opposite party that possession of apartment was handed over on 20-03-2009. But PW1 has denied it in the box and she has deposed that the 4^th opposite party has handed over possession only on 30-12-2010. Ext. A13 produced by the complainant is seen not to have been executed by the parties. Hence this document dated 05-01-2011 is marked subject to objection by the opposite parties. According to Ext. A12, the complainant has paid Rs. 22,51,504/- to the opposite parties on various counts. From this, cost of car park and maintenance charges have to be deduced. Balance amount is Rs. 21,41,004/-, obviously the date on which the ownership was transferred as per Ext. A4 dated 02-11-2009. It can be ordinarily presumed that the possession was handed over subsequent only. In Ext. A7 lawyer notice also, the imputation is that possession of the apartment was transferred by handing over key only on 30-12-2010. Exts. A5 and A6 would show that incidental procedures have been executed on 21-01-2011.

9. When we peruse all these documents together, we do not think there is any harm in concluding that possession was handed over only on 30-12-2010 as against the agreed date of 31-03-2008. The 4^th opposite party alleges that the complainant has failed in paying the charges in accordance with payment schedule incorporated in Ext. A3 agreement for construction. It is deposed by DW2 that the opposite parties have received Rs. 17,76,489/- as on 21-11-2007. Whereas substantial amount is found to have been remitted by the complainant, we do not find any force in the contention that the delay in handing over possession was caused by the default on the part of the complainant in paying the charges as per payment schedule.

10. Ext. A12 would show that the complainant has paid Rs. 22,51,504/- for the apartment. After deducting Rs. 1,10,500/- from the above figure, the balance amount is Rs. 21,41,004/-. Clause 18 of Ext. A3 agreement, entitles the complainant to receive damages at the rate of 5% p.a. for the amount during the period of delay.

11. Point No. ii. :- The 2^nd relief sought is the amount of rent paid by the complainant towards lease of rented house. We do not think that Ext. A15 series would prove that the complainant had been residing in rental house over the period. Hence, we cannot sustain such a contention. Lastly the complainant is harping on the compromise, he has reached with the opposite parties for payment of compensation of Rs. 1,80,000/- and the subsequent mal-treatment at their premises, when he approached them to collect the amount. This contention also remains unestablished in view of the want of adequate materials.

12. To conclude, we hold that there was deficiency of service in as much as there was delay in handing over possession of the building. In Lucknow Development Authority Vs. M.K. Gupta III (1993) CPJ 7 (SC), the Hon'ble State Commission observed that, “when possession of property is not delivered within stipulated period the delay so caused is denial of service.” It is also pertinent to note that the following statement of his Lordship Justice Raveendran in Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. III (2008) CPJ 48 (SC) ) :

“16. There is no dispute or doubt that a complaint under the Act will be maintainable in the following circumstances :

x x x x x

(b) Where the purchaser or intending purchaser of an apartment/flat/house has a complaint against the builder/developer with reference to construction or delivery or amenities.”

Also, it is worthwhile to note that the Hon'ble National Consumer disputes Redressal Commission has in a similar circumstance, awarded compensation for the delay in delivery of possession in Ratna Alexander Bhambhani Vs. Ruby Complexes Pvt. Ltd. III (2007) CPJ 350 (NC). Drawing force from the aforesaid decisions, we are allowing the complaint in part.

13. In the result, the complaint stands allowed as follows :-

1. The 4^th opposite party shall pay to the complainant an amount as interest @ 5% p.a. for Rs. 21,41,004/- from 30-03-2008 to 30-12-2010 for having delayed in delivery of possession of the apartment.

2. The 4^th opposite party shall also pay Rs. 10,000/- to the complainant towards mental agony caused by deficiency in service.

3. The 4^th opposite party shall also pay Rs. 1,000/- to the complainant by way of costs of the proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 31^st day of July 2012

Sd/- Paul Gomez, Member.

Sd/- A. Rajesh, President. Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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