Date of Filing:25.03.2010
Date of Order: 21.02.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20
Dated: 21ST DAY OF FEBRUARY 2011
PRESENT
Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.
Smt. D. LEELAVATHI, M.A.LL.B, Member.
Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.
COMPLAINT NO: 642 OF 2010
Mr. Bansi Lal Vaishnavi,
Flat no.406, Sovereign Park Apts,
56-58, K.R.Road,
Basavanagudi,
Bangalore-4. Complainant
V/S
The Managing Director,
Corporate leisure and Property Developments
Pvt., Ltd.,
Unit No.112, Oxford Towers,
139, old Airport Road,
Bangalore-560008. Opposite party
ORDER
By the President Sri. S.S. Nagarale
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
The facts of the case are that, the complainant had booked a flat in opposite party’s project in July 2004. As per the agreement to sell and construction agreement the flat with all the facilities was to be completed and delivered by 30th April 2006. The flat was delivered to the complainant on 26th May 2008. There is delay of 25 months in the delivery of flat. The flat was registered on 19th April, 2008. The apartment keys were handed over to the complainant on 26th May, 2008. As per para 17 of the construction agreement the builder shall became liable to pay to the purchaser monthly rental compensation of Rs.7,500/- commencing 60 days after the due date of delivery till the date of actual delivery. Thus, after deducting the grace period of 60 days the opposite party is required to pay compensation of Rs.1,72,500/- for 23 months. The complainant submits that there is gross violation of construction agreement. The facilities promised are not given. The facilities have been withheld by the opposite party for no reason whatsoever. The complainant prayed that the opposite party be directed to pay rental compensation of Rs.1,72,500/-, to complete the work of swimming pool, to start the work on club house without further delay, to maintain and repair common arrears, to refund service tax installments collected from the complainant. To build 10 gazebos as stipulated in the agreement.
2. The opposite party has filed defense version, stating that the complaint is barred by limitation. Sale Deed had been executed in the year 2008 and the possession of the flat had been given in the year 2008 itself. The complaint is not maintainable. Relationship between the complainant and the opposite party is purchaser and seller. The opposite party constructed apartment as mentioned in the joint development agreement. Even after repeated request from the opposite party the complainant had not made payments as agreed in the construction agreement. He has made payments on 9th April and 10th April 2008. Hence, the opposite party could not handover the possession of the flat. There is no negligence on the part of the opposite party. Delay occurred due to the late payments. There was no deficiency of service on the part of the opposite party. 25% of the land has been transferred to BDA, the BDA has to provide Civic Amenity site. The opposite party has planned to construct gazebo in between the building but fire force department have objected to construct the gazebo. The opposite party has undertaken to construct swimming pool, the same is being under construction. The opposite party company is not liable to pay rental compensation. The opposite party deposited service tax collected by the complainant to the concerned department. The opposite party has deposited sum of Rs.2,77,00,000/- to the department, the same has not been refunded to the opposite party company. Hence, the opposite party is not in a position to refund the service tax. The opposite party is requested to dismiss the complaint.
3. The respective parties have filed affidavit evidence. Arguments of complainant in person and the learned counsel for the opposite party are heard.
4. In the light of the arguments advanced by the learned Advocates for the respective parties, the following points arise for consideration:-
1. Whether the complainant has proved deficiency of service on the part of the opposite party?
2. Whether the complaint is maintainable?
3. Whether the complainant has entitled for relief sought?
REASONS
5. The 1st Addl. District Consumer Forum and Principal District Forum, Bangalore and also the Hon’ble State Commission in respect of similar matters have given judgments. The judgments have been rendered in respect of complaints filed by the different flat owners against Shoba Developers Ltd., and other developers and builders. The complainants in cc No.1017, 1018, 1020 and 1021 of 2010 have filed complaints against the Shobha Developers Ltd, seeking reliefs as prayed in the present complaint. The 1st Addl. Dist Forum after considering the documents and arguments had dismissed the complaints by order dated 26-7-2010. One more complaint filed before the 1st Addl. Dist. Forum in cc No.2962/2009 against the Shobha Developers Pvt., Ltd., came to be dismissed by the 1st Addl. D.F. Bangalore. The Principal D.F. Bangalore in cc No.1777/2007 in b/w Mr.Amit Chaturvedi and Shobha Developers, the Principal D.F. Cauvery Bhavan, Bangalore had dismissed the complaint by order dated 17-11-2007, being aggrieved by the order of the Principal D.F. Cauvery Bhavan the complainants have preferred appeal before the Hon’ble State Commission in Appeal no.2466/2007. The Hon’ble State Commission had upheld the order of D.F. and liberty was given to the complainant to seek relief before appropriate civil court of law. The complainants in cc No.1017 of 2010 and complainant Mr.Mahesh Hebbar have preferred appeal in State Commission in Appeal No.3651/2010 and 3652/2010, the Hon’ble State Commission dismissed the appeals by order dated 17-9-2010 by confirming the order of 1st Addl. D.F. It has been observed by the Hon’ble State Commission “therefore, the D.F. is right in recording its finding that when the title has been passed to the complainant, the question of declaration from the op at this juncture does not arise. Therefore, viewed from any angle, we do not find any prima-facie case to entertain these appeals in the result, we pass the following order Appeals are dismissed at the stage of admission”. The facts of the present case on hand are similar and same as that of the cases referred above. Therefore, there is no scope to take different view or opinion which had already been taken by the 1st Addl. D.F. and Principal D.F. Cauvery Bhavan and the Hon’ble State Commission, Bangalore. The orders passed by the District Forums having been confirmed by the Hon’ble State Commission therefore, the orders of State Commission are binding on this Forum, under these circumstances the only remedy available now to the complainant to file civil suit for getting redressal of his grievances. The complainant having taken sale deed from the op he is the title holders of the property. He has to file civil suit for getting relief. The question of deficiency of service after execution of sale deed does not arise. The Hon’ble Karnataka State Commission in cc No.34/2009 decided on 16-4-2009 b/w Jagadish vs Ittina Properties has been held that opposite party having executed sale deed, question of issuing direction to opposite party does not arise and if at all the opposite party had not completed the construction pursuant to the agreement the remedy for complainant is to approach civil court for damages. Therefore, the complaint filed by the complainant Jagadish was dismissed by the Hon’ble State Commission. So in view of the above authorities and on the facts of the case it is clear that the present complaint is not maintainable. In view of the judgments rendered in the similarly situated facts it is unnecessary for me to discuss in detail the present matter in question. Therefore, when there are judgments of Hon’ble State Commission on the relevant point, we are bound by those judgments and no further discussion is necessary and called for. The complainant herein having taken sale deed on 19-4-2008 itself, the sale deed is without any conditions, there are no terms or conditions in the sale deed in respect of payment of rental compensation. The agreement merged with the sale deed. Under these circumstances, the remedy available now to him is to file civil suit against the op for getting appropriate relief / reliefs. The time spent for prosecuting the present proceeding is liable to be given deduction for purpose of limitation, if the complainant chooses to file civil suit against the op. With this observation the complaint deserves to be dismissed. In the result, I proceed to pass the following:-
ORDER
6. The complaint is dismissed, giving liberty to the complainant to approach Civil Court for getting the appropriate relief / reliefs.
7. Send the copy of this Order to both the parties free of costs immediately.
8. Pronounced in the Open Forum on this 21ST DAY OF FEBRUARY 2011.
Order accordingly,
PRESIDENT
We concur the above findings
MEMBER MEMBER
