Complaint Case No. CC/221/2022 | ( Date of Filing : 21 Sep 2022 ) |
| | 1. Smt. R. Umarani | W/o Ilangaowan, Aged about 51 Years, R/at No.34,Venkatappa Road,Off Queens Road,Tasker Town, Bengaluru-560051 |
| ...........Complainant(s) | |
Versus | 1. The Managing Director, M/s. BCV Developers Private Limited | Having its Registered office at 29th Floor, World Trade Center,Brigade Gateway Compus, No.26/1,Dr. Rajkumar Road,Malleshwaram-Rajajinagar-Rajajinagar,Bengaluru-560055 |
| ............Opp.Party(s) |
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Final Order / Judgement | Complaint filed on:21.09.2022 | Disposed on:27.09.2023 |
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN) DATED 27TH DAY OF SEPTEMBER 2023 PRESENT:- SMT.M.SHOBHA B.Sc., LL.B. | : | PRESIDENT | SMT.K.ANITA SHIVAKUMAR M.S.W, LL.B., PGDCLP | : | MEMBER | SMT.SUMA ANIL KUMAR BA, LL.B., IWIL-IIMB | : | MEMBER | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
COMPLAINANT | | W/o. Ilangaowan, Aged about 51 years, R/at No.34, Venkatappa Road, Off Queens Road, Tasker Town, Bangalore 560 051. | | | (SRI.K.G.Nirguna, Advocate) | | OPPOSITE PARTY | 1 | M/s BCV Developers Pvt. Ltd., The Managing Director, A Company incorporated under the Companies Act, 1956, Having its Registered office at 29th Floor, World Trade Center, Brigade Gateway Campus, No.26/1, Dr.Rajkumar Road, Malleswaram, Rajajinagar, Bengaluru 560 055. | | | ( Sri.Krishna B.R. Associates) |
ORDER SMT.M.SHOBHA, PRESIDENT - 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:-
- Direct the OP to obey the terms and conditions of the agreement of sale between the complainant and OP dated 30.03.2016
- Directing the OP to pay the cost of this proceedings.
- Direct the OP to pay the damages and mental agony for deficiency of service rendered by the OP for amounting of Rs.50,00,000/-.
- To pass such other reliefs.
- The case set up by the complainant in brief is as under:-
The complainant in the year 2015 impressed by the assurance given by the OP that they will complete the construction of the residential apartment and give possession within July 2017 agreed to purchase the residential apartment having super built up area 1080 sq. feet for a grand total price of Rs.53,71,360/- inclusive of external developmental charges, infrastructure development charges, preferential location charges. Out of which the complainant has paid Rs.48,36.885.58 ps., out of this amount the complainant has paid Rs.1,00,000/- through cheque as booking advance and the remaining amount has been transferred from HDFC bank to OP account. - On the basis of the said advance booking on 30.03.2016 the husband of the complainant has entered into agreement of sale with the OP. the OP developer had allotted an apartment bearing No.B-706 in Cedar Block on 7th floor in Cedar, approximately measuring 1080 sq. feet with an exclusive right to use of one top covered car parking to be developed in Bangalore for sale price of Rs.53,71,360/-.
- As per the clauses of the agreement the OP has to hand over possession of the apartment within two years from the date of agreement. But the OP has not fulfil the terms of the agreement and has not finish the construction of the building but the agreement was expired. The OP has not completed the project as per the agreement and keeps on delaying to hand over the booked unit for one or the other reason, which are legally unacceptable. The complainant has also suffered financial difficulties during covid-19 pandemic period. At that time the complainant has contacted the OP and make a communication that what is the breakups if in case he wants to get registered or cancel or switch the apartment. At that time the OP has send unacceptable revised registration/cancellation charges has levied the exorbitant charges. In addition to that the OP has also taken extension for completion of the project from the RERA authorities. The extension was granted subject to one of the condition that the promoter shall execute and register a conveyance deed in favour of the allottees or the association of the allottees as the case may be of the apartment, plot/building as the case may be or the common areas as per sec 17 of RERA act. After that the complainant has demanded the explanation from the OP about the status of the unit booked by the complainant. Complainant further demanded for the inspection of her unit at tower B-706 unit. After a long time the OP has permitted the complainant to visit the unit which was under construction with conditional accesses saying that she can only see the property without physically check the quality and no permission for measuring the carpet area, built up area and no permission to take pictures of the unit, which was not accepted by the complainant. The agreement entered between the complainant and the OP is one sided and unilateral. The complainant was not satisfied with the construction and the measurement as it was not as per the areas mentioned in the unregistered sale agreement. In the meantime the complainant has also received letter from the OP on 22.08.2022 stating that if they fail to get the registered deed before 30.08.2022 the advance amount will be forfeited. Now the OP is ready to hand over the physical possession of the property seeking exorbitant amount which is opposed and violation of clauses of the agreement. Hence the complainant has filed this complaint.
- In response to the notice, OP appears and files version stating that the complaint is not maintainable. There is no deficiency of service on the part of this OP and the complaint is liable to be dismissed. The complainant is not a consumer as defined u/s 2(7) of C.P.Act 2019 and there is no deficiency whatsoever on the part of this OP.
- The main objection raised by the OP is that the complainant has filed this complaint without any authority or power to do so. She has no right to file this complaint against the OP as she has not entered into any agreement with the OP nor she has any power or authority issued by the original agreement holder/allottee to file this complaint. There is no privity of contract between the complainant and this OP. The OP have not rendered any service to the complainant and hence the complaint deserves to be dismissed.
- The intention of the complainant is just to harass this OP to have illegal gain. If such complaint is entertained the significance of the enactment of the C.P.Act and establishment of this Hon’ble District Commission will be affected and it will be set as a precedent for others to misuse such opportunities and prays for dismissal of the complaint.
- The OP has admitted the agreement entered into between the husband of the complainant and denied any transaction entered between themselves and the complainant. Hence prays for dismissal of the complaint.
- Though sufficient time was given to the complainant she has not lead evidence. Hence evidence of complainant is taken as nil. Counsel for OP filed affidavit evidence and relies on 21 documents.
- Complainant has not submitted any arguments. Hence arguments of complainant is taken as nil.
- The following points arise for our consideration as are:-
- Whether the complaint is maintainable?
- Whether the complainant proves deficiency of service on the part of OP?
- Whether the complainant is entitled to relief mentioned in the complaint?
- What order?
- Our answers to the above points are as under:
Point No.1: Negative Point No.2&3: Do not survive for consideration in view of finding on point No.1 Point No.4: As per final orders REASONS - Point No.1: We have perused the allegations made in the complaint, version, affidavit evidence of OP and arguments of OP and documents filed by the OP.
- The complainant has filed this complaint claiming the above relief.
- It is pertinent to note here that the entire documents relating to the schedule property was entered between the husband of the complainant Ilangaowan and the OP. The complainant has filed this complaint without taking any power of attorney or authorization or any other document from her husband. The complainant is neither a party to the agreement entered between the OP and her husband in respect of the schedule property and she has not at all produced any document to show that she has paid the entire amount to the OP for purchase of the schedule property.
- The main objection raised by the OP is that the complainant has filed this complaint without any authority or power to do so she has no right to file the complaint against the OP as she has not entered into any agreement with the OP nor she has any power or authority issued by original agreement holder/allottee to file this complaint and represent him. There is no privity of contract between the complainant and this OP. The OP have not rendered any service to the complainant.
- It is clear from the entire documents relied on by the complainant and OP that the complainant has filed this complaint without any authority. She has neither obtained any power or authority from the original allottee to file this complaint and represent him. There is no privity of contract between the complainant and OP. When the OP has not at all rendered any service to the complainant the question of deficiency of service on the part of the OP does not arise. Hence the complaint is not maintainable as complainant has no right to file this complaint without any authority from the original agreement holder namely Sri. Ilangaowan. Hence the complaint is not maintainable and liable to be dismissed. Therefore we answer point No.1 in the negative.
- POINT NO.2 & 3: In view of our finding on point No.1 the point No.2 and 3 do not survive for our consideration.
- Point No.4:- In view the discussion referred above we proceed to pass the following;
O R D E R - The complaint is Dismissed as not maintainable.
- 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 27TH day of SEPTEMBER, 2023) (SUMA ANIL KUMAR) MEMBER | (K.ANITA SHIVAKUMAR) MEMBER | (M.SHOBHA) PRESIDENT |
Documents produced by the Complainant-P.W.1 are as follows: NIL Documents produced by the representative of opposite party – R.W.1; 1. | Ex.R.1 | Resolution passed by the board of directors of the OP | 2. | Ex.R.2 | Occupancy certificate dated 20.04.2017 | 3. | Ex.R.3 | Application for allotment filed by the complainant and offer letter both dated 01.08.2015 | 4. | Ex.R.4 | Allotment notice dated 28.08.2015 issued by the OP | 5. | Ex.R.5 | Letter dated 25.02.2016 | 6. | Ex.R.6 | Application for allotment dated 25.02.2016 | 7. | Ex.R.7 | Letter dated 06.04.2016 and 17.05.2016 | 8. | Ex.R.8 | Letter dated 18.05.2016 | 9. | Ex.R.9 | Proforma of Tripartite agreement | 10. | Ex.R.10 to 14 | Copy of the five letters issued by the OP | 11. | Ex.R.15 | Statement of accounts | 12. | Ex.R.16 | Email communications | 13. | Ex.R.17 | Letter dated 10.10.2022 issued by HDFC to OP | 14. | Ex.R.18 | Letter of authorization | 15 | Ex.R.19 | Certificate u/s 65B of Indian Evidence Act | 16. | Ex.R.20 | Copy of the agreement of sale | 17. | Ex.R.21 | Copy of the construction agreement |
(SUMA ANIL KUMAR) MEMBER | (K.ANITA SHIVAKUMAR) MEMBER | (M.SHOBHA) PRESIDENT |
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