BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 12^TH DAY OF APRIL 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. 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:-

1. Directing the Ops to construct a two BHK residential apartment bearing No.A1538 in the 15^th Floor in the Tower-01(A), the residential apartment complex known as “GM GLOBAL TECHIES TOWN”measuring 950 sq. feet super built up area together with proportionate share in the common areas in the A schedule to the construction agreement dated 31.05.2017, by receiving the balance amunt as per the schedule D to the construction agreement dated 31.05.2017 and to sell 190 sq feet of undivided share, right, title, interest and ownership, which is more fully described in B schedule to the sale agreement which is part and parcel of the A schedule to the sale agreement dated 31.05.2017 by receiving the balance sale consideration amount, as mentioned in D schedule to the sale agreement, as the construction progresses.
2. Directing the Ops to pay a sum of Rs.5,00,000/- to the complainants towards compensation for mental agony.
3. Pass such other order.

 2.      The case set up by the complainant in brief is as under:-

The case of the complainant is that the first complainant is the wife of the second complainant.  The OP2 as a general power of attorney holder of OP3 to 5 have entered into an agreement of sale with the complainants on 31.05.2017 agreeing to sell the B schedule property which is a part and parcel of A schedule to the sale agreement for a total consideration amount of Rs.11,25,000/-.  The complainants have paid Rs.50,000/- on the date of sale agreement as advance and as part performance of the sale agreement.  The balance sale consideration amount was agreed to be paid by the complainant to the Ops as mentioned in the D schedule to the sale agreement as and when demanded by the Ops, as the construction processes in terms of agreement dated 31.05.2017.

3.       It is further case of the complainant that they have also entered into construction agreement with the second OP on 31.05.2017 and the Ops agreed to construct 2 BHK residential apartment bearing No.A-1538 in the 15^th Floor in the tower-01(A) the residential apartment complex known as GM GLOBAR TECHIES TOWN, measuring 950 sq. feet super built up area together with proportionate share in the common areas mentioned in the A schedule to the construction agreement for a total consideration of Rs.26,25,000/-.

It is further case of the complainant that they have paid a sum of Rs.3,35,000/- as on the date of construction agreement to the OP and the complainants in all have paid a sum of Rs.3,85,000/- under the sale agreement and also under the construction agreement and the Ops have acknowledged the receipt of the said amount.  in terms of the construction agreement the complainants have to pay the balance sale consideration amount as mentioned in the D schedule as the construction progresses and likewise the complainants are also required to pay the balance amount to the OP in terms of construction agreement as per payment schedule mentioned in D schedule to the construction agreement whenever demanded by the Ops.

The Ops have specifically informed the complainants while entering into the agreement of sale and also construction agreement on 31.05.2017 that the construction of tower A would start either in the end of the year 2019 or in the beginning of 2020. When the complainants have enquired with the Ops in the month of December 2019 regarding the progress of construction the Ops have informed the complainant that the construction has not yet started and it is getting delay due to some paper work and also due to the delay in getting the plan sanctioned from the competent authorities.  

When the complainants again enquired with the Ops by visiting their office in the month of January 2020 regarding the stage of construction the Ops have promised the complainants that the construction of the tower A would start at any time in March 2020 and the complainants will be intimated regarding the payments to be made by them as the construction progresses in terms of sale of construction agreement.  Again the complainants have enquired with the Ops about the progress of construction during last week of march 2020 the Ops have informed the complainants that the construction is not yet started due to the lockdown imposed by the central government and also by the state government due to covid-19 pandemic and further assured the complainants that the construction would start as soon as the lockdown imposed by the respective government are relaxed and further informed the complainants that no payment is due by the complainants.  After that the Ops have not informed the complainants about the stage of the construction and the payments to be made by the complainants in terms of the payment schedule mentioned in D schedule to the agreement.  

The complainants have been requesting the Ops to construct the plot in terms of the sale and construction agreement dated 31.05.2017 and to sell the same in their favour by receiving the balance amount,  but the Ops failed to construct the 2 BHK residential apartment No.A-1538 in 15^th Floor, in tower-01A and receive the balance amount as per the agreement.  At last the complainants have issued a legal notice through their advocate on 23.07.2022 demanding the Ops to construct the flat and to sell the same in their favour as per the agreements dated 31.05.2017.  The notice was duly served on the Ops, even after the service of notice, the Ops neither complied with the demand nor replied to the notice.    The Ops are deliberately delay in perform their part of contractual obligation in terms of the agreement of sale and construction agreement and the failure on the part of the Ops in performing their part of obligations amounts to deficiency in service. Hence the complainants have filed this complaint.

9.       In response to the notice, even though Ops 1 and 2 have appeared before this Commission through their counsel failed to file the version and OP3 to 5 remained absent.

14.     The complainant No.2 has filed his affidavit evidence and relies on Ex.P1 to P7 documents. 

15.     Heard the arguments of the complainant and they have also filed their Written arguments. Perused the written argument.

16.     The following points arise for our consideration as are:-

1. Whether the complainants proves deficiency of service on the part of OPs?
2. Whether the complainants are entitled to relief mentioned in the complaint?
3. What order?

17.   Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

18.    Point No.1 AND 2: Perused the complaint, documents and evidence and written arguments submitted by the complainants.

19.     The complainant has filed this complaint for the relief to direct the Ops to construct a 2 BHK residential apartment bearing No.A-1538 in the 15^th Floor in tower-01A measuring 950 sq feet super built up area together with proportionate share in common areas in A schedule to the construction agreement by receiving the balance amount as per schedule D to the construction agreement and to sell 190 sq feet of undivided share i.e., B schedule to the sale agreement which is part and parcel of A schedule to the sale agreement by receiving the balance sale consideration amount as per B schedule to the sale agreement and further direct the Ops to pay a sum of Rs.5,00,000/- to the complainants towards compensation and also Rs.1,00,000/- towards litigation expenses.

The evidence of the complainant and the documents remained unchallenged and there is no reason to disbelieve the evidence of the complainant and the documents.

It is clear from the evidence and documents that the Ops have entered into sale agreement and construction agreement with the complainant on 31.05.2017 as per document No.1 and 2 and received a sum of Rs.3,85,000/- from the complainant under document No.1 and also under document No.2.  as per the terms of document No.1 and 2 the complainants are required to pay the balance sale consideration as the construction progresses stage wise as and when demanded by the Ops in terms of construction agreement document No.2.  it is clear from the evidence and document produced by the complainants that there is no default committed by the complainants in performing their part of contractual obligations.

As per document No.1 and 2 the Ops have to start the construction in the year 2019 and also in the year 2020.  Inspite of repeated request and also issue of legal notice the Ops neither started the construction nor received the balance sale consideration.

Even though the Ops have entered into sale and construction agreement on 31.05.2017 they have failed to perform their part of their obligations even after lapse of five years and thereby they have committed deficiency of service.  The complainants are ever ready to perform their obligations under the agreement by paying the balance consideration amount as per schedule D to the construction agreement document No.2. The Ops never started to construct the apartment till today.

In view of non construction of the residential apartment as per document No.1 and 2 the complainants have suffered mental agony and also financial loss.  Even though the complainants are ready and willing to perform their obligations under the agreement the Ops have made the complainant to approach this Commission by committing deficiency of service.  The complainants cannot wait for an unlimited period after paying the amount and even though they are ready to perform their obligations under the agreement document No.1 and 2. Hence the complainants are entitled for the reliefs claimed in this complaint.   Therefore the complaint is liable to be allowed in part. Hence we answer point No.1 in the affirmative and Point No.2 partly in affirmative.

Point No.3:- In view the discussion referred above it is necessary to direct the Ops to construct the 2BHK residential apartment bearing No.A1538 in 15^th Floor in Tower-01(A) in GM GLOBAL TECHIES TOWN measuring 950 square feet super built up area together with proportionate share in the common areas in the A schedule within six months from the date of this order by receiving the sale consideration amount along with compensation of Rs.50,000/- and Rs.10,000/- towards litigation expenses to the complainants and we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The Ops are directed to construct the 2BHK residential apartment bearing No.A1538 in 15^th Floor in Tower-01(A) in GM GLOBAL TECHIES TOWN measuring 950 square feet super built up area together with proportionate share in the common areas in the A schedule within six months from the date of this order after receiving the sale consideration from the complainants.
3. Ops are further directed to pay a sum of Rs.50,000/- towards compensation along with litigation expenses of Rs.10,000/- to the complainants.
4. The OPs shall comply this order within six months from the date of this order, failing which the OP shall refund the advance amount received from the complainants along with interest at 12% p.a. after expiry of six months till final payment.
5. 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 12^TH day of APRIL, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – NIL;