THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 27th DAY OF OCTOBER 2021
PRESENT
SRI RAVI SHANKAR – JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI - MEMBER
APPEAL NO. 511/2017
1. Ravikiran Puvvala
S/o P.Krishnanjaneyalu,
A/a 46 years,
2. Radhika Mahankati
W/o Ravikiran Puvvala,
A/a 44 years.
Both R/at No.533, H Main
Vysya Bank Colony, Arekere,
Bannerghatta Road,
Bangalore-76.
Represented by their power of attorney Holder,
Sri. P.Krishnanjaneyulu S/o Anantharamaiah,
A/a 76 years, Also R/at No.533, ‘H’ Main,
Vysya Bank Colony, Arekere,
Bannerghatta Road, Bangalore-76.
….Appellant/s.
(By Shri/Smt. M.S.Ashwin Kumar, Adv.,)
-Versus-
The Prestige Estates Projects Pvt Ltd.,
The Falcon House,
No.1, Main Guard Cross,
Bangalore – 560 001.
Rep. by its MD.
……….. Respondent/s
(By Sri. K.V. Legal, Adv.,)
:ORDERS:
BY SRI.RAVI SHANKAR - JUDICIAL MEMBER
The appellants/complainants filed this appeal being aggrieved by the order dated:23.01.2017 passed by the IV Additional District Consumer Commission in C.C.No.422/2012 alleging deficiency in service against the OP.
2. The case of the complainant is that they have booked an Apartment with the OP and as per the agreement the OP has to deliver the Flat within July 2008 with 3 months grace period and if the OP has failed to give the possession of the Flat within time, the OP has to pay 7% interest on the paid amount. The complainant further contended that the OP has handed over the possession and executed the registered sale deed dated:07.10.2011 and that there is a delay of nearly three years in handing over the possession of the Flat and thereby he has to incur huge amount of Rs.8,40,000/- towards rent paid by them and the OP has collected Rs.86,089/- towards maintenance charges against the agreement executed between them. Hence, alleged deficiency in service and filed the complaint.
3. On service of notice, the OP appeared before the District Commission and contended that the complaint is hit by non-joinder of necessary parties namely Chaitanya Properties Pvt. Ltd. and the complaint is ex-facia barred by law of limitation as the complaint was filed after five years from the date of alleged cause of action. The reasons for delay was informed to the complainant with reference to Clause 5(a) and 5(c) of the construction agreement. The OP further contended that the complainants were aware of the reasons mentioned through their letter dated:01.02.2007 and the time extended affected him only in bearing the cost of construction though it was increased and therefore they are not liable to pay any compensation. The OP further contended that as per sale deed dated:07.10.2011 at Para No.5(4) the complainants had declared and confirmed that they have no claims against the OP confirming that the builder has complies with their all obligations under the agreements to their satisfaction and as per Clause 14 of sale agreement 5g of Construction Agreement, after the registration of the sale deed and delivery of possession, the complainants have no any claim against them and hence submits there is no any deficiency on their side and prays to dismiss the complaint.
4. After trial, the District Commission dismissed the complaint holding that there is no deficiency of service on the part of OP. Being aggrieved by the same, the appellant/complainants are before us.
We have heard the arguments on both sides.
5. On perusal of memorandum of appeal, certified copy of the impugned order, it is not in dispute that the complainants have booked the scheduled flat with the OP. It is also not in dispute that the OP has handed over the possession and executed the registered sale deed on 07.10.2011. But after taking possession, the complainant complained that there is a delay in handing over the possession and as per the agreement/s, the Opposite Party is liable to pay 7% interest on the paid amount. We noticed here that, the complainant had taken possession and sale deed was also executed in favour of the complainant. The complaint was filed in the year 2012 i.e., after lapse of nearly four years. There is a delay in filing the complaint. Hence, the complaint filed by the complainant if barred by limitation. The Act provides to the complainant to file the complaint within two years time form the date of cause of action, whereas the complaint has been filed in the year 2012. Further, the complainant has taken possession and also sale deed was executed in favour of the complainant. Moreover, the delay in handing over the possession on the part of Opposite Party is not intentional, but it is due to Force Majeure factor. There is also no abnormal delay in handing over the possession to the complainant also. If any delay is caused to handover the possession is due to Rules, Notification of the Government, Municipal Authorities and court prohibiting the construction activities, non availability of the materials due to truckers strike, sand suppliers strike. Hence, there is no deficiency in service on the part of Opposite Party and complainants have failed to establish the same.
6. Further, the District commission in its impugned order at Para-10 has held that the Opposite Party developer informed to the complainants about the re-scheduled payments and delivery dates to be commenced by December 2008 in the phased manner and also has informed that clearance from the ministry of environment and forest, the time was extended significantly and further at Para No.11 has stated that in the sale deed at Clause 5.4 shows that the complainants declared and confirmed that they have no claims against the builder in relation to their schedule apartment, whatsoever, confirming that builder has complied with all his obligations under the construction agreement and sale agreement to their satisfaction and thereby by they fully and completely discharge the seller/builder from all his obligations under the said agreement. Hence, the District Commission after going through the letter issued by the Opposite Party, sale deed, construction agreement and circumstances for not giving the possession within time, has held that there is no deficiency of service on the part of Opposite Party, which in our opinion is just and proper. Accordingly, we proceed to pass the following:-
:ORDER:
The appeal is hereby dismissed. No costs.
The impugned order dated:23.01.2017 passed by IV Additional District Consumer Commission, Bangalore in C.C.No.422/2012 is hereby confirmed.
Send a copy of this order to both parties as well as Concerned District Commission.
Sd/- Sd/-
Member. Judicial Member.
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