Complaint filed on: 05-09-2012
Disposed on: 28-09-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1808/2012
DATED THIS THE 28th SEPTEMBER 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Smt.Anjani Chinamilli,
W/o. Sri.Srinivas Chinamilli,
Aged about 40 years,
Residing at Villa no.355,
Adarsh Palm Meadows,
Airport Whitefield Road,
Ramagondanahalli,
Bangalore-66
V/s
Opposite party: -
The Prestige Estates Projects Pvt. Ltd,. The Falcon house, # 1,
Main Guard Cross,
Bangalore-01
Reptd by its Managing Director
Also representing
M/s. Chaitanya Properties Pvt. Ltd,
As its power of Attorney holder
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act’1986, praying to pass an order, directing the OP to pay interest at 7% p.a. on the entire amount paid from 29-8-2008 to till the date of delivery, to pay a sum of Rs.12,60,000=00 as compensation and to pay Rs.86,089=00 collected towards maintenance charges alongwith with interest and cost.
The complainant has restricted her claim to Rs.19,99,000=00.
After filing the complaint, we have heard the arguments of the learned counsel for the complainant regarding maintainability of the complaint at the stage of admission. We have gone through the averment of the complaint and relevant documents of the complainant.
Let us have a look at the relevant documents of the complainant. Document no.1 of the complainant is the copy of letter of OP dated 23-3-2005 issued in the name of complainant stating that, on 26-2-2005 they have received a sum of Rs.4,00,000=00 cheque from the complainant and reserved apartment no.8051 in the name of complainant. Document no.2 is the copy of letter of OP dated 1-4-2005 issued in the name of complainant informing the allotment of apartment in the name of complainant. Document no.3 is the copy of letter of OP in the name of complainant stating that, agreements have been finalized and they will be contacting the complainant for execution of the same and they have commenced the excavation work. Document no.4 is the copy of agreement to sell dated 13-6-2005 between the complainant and OP in respect of the said apartment and on page no.12 of the said agreement under the heading of specific performance and arbitration, it is stated that, in the event of default by the sellers/builders, the purchaser is entitled to enforce specific performance of this contract. In the event of breach of the terms of this agreement to sell or in the event of any differences or disputes arising between the parties in regard to this agreement or any matter relating to the same shall be referred to a sole arbitrator to be appointed by the builder and his award shall be final and binding on the parties. Both the complainant and her husband have signed the agreement to sell duly. Document no.5 is the copy of construction agreement between the parties dated 13-6-2005 in respect of the apartment of complainant. Document no.6 is the copy of registered sale deed executed by OP in the name of the complainant dated 16-9-2011 in respect of apartment bearing no.8051 being schedule-G property. Document no.7 is the copy letter of OP dated 7-1-2011 addressed to the complainant for handing over the possession of apartment. We have found copy of legal notice dated 9-7-2012 issued by the complainant’s lawyer to OP calling upon to pay interest at 7% per annum for a delay in handing over the possession of the apartment, to pay compensation, and refund of Rs.86,089=00 collected towards maintenance charges alongwith interest. So also in the complaint, the complainant has stated that, the sale deed has been executed duly by OP in respect of her apartment and she has taken the possession of apartment from the OP, but the OP has delivered the possession of apartment late, so she is entitled to claim 7% interest per annum on the total amount claimed as per the agreement. The said documents of the complainant go to reveal that, the OP has executed the agreement to sell, construction agreement and sale deed also in the name of the complainant and delivered the possession of apartment to the complainant, and both in the agreement to sell and construction agreement, there is a heading of specific performance and arbitration, wherein it is stated that, in the event of default by the sellers, the purchaser is entitled to enforce specific performance of this contract. As per the terms and conditions of the agreement to sell and construction agreement between the parties, if the OP does not pay interest at 7% per annum on the entire amount paid, it amounts to breach of contract. So the remedy left open to the complainant is to enforce specific performance of contract by filing the civil suit before the civil court and obtain appropriate relief and not by filing the present complaint under the CP Act. After execution of registered sale deed by the OP in the name of the complainant and taking possession of apartment by the complainant already, this forum ceases the jurisdiction as there is no relationship of consumer and service provider between the complainant and OP. So under the circumstance, the only option left open to the complainant is to file the civil suit before the civil court and ventilate her grievance and get relief and not by filing the present complaint. At this stage, the learned counsel for the complainant has relied on the following authority.
I (1992) CPJ 64 (NC)-Secretary – cum – Chief Engineer, H.P. Housing Board –vs- S.K.Ahluwalia
“Consumer Protection Act, 1986 – Section 14 (1) (d) – Housing – Appellant allotted a constructed garage to the respondent at a tentative cost of Rs.30,000=00 in 1982 – Respondent deposited Rs.22,000=00 as per demand of the appellant by October 10, 1983 – Delay of more than six years in handing over the possession of garage – Respondent compelled by the board to pay the price of the garage at the rate prevailing in 1989 i.e. Rs.49,000=00- Whether the respondent is entitled to claim compensation for delay in delivery of possession by the board?- (Yes), the respondent has been awarded Rs.16,000=00 as compensation calculated on the basis of interest @ 12% p.a. on Rs.22,000=00 – order of the state Commission upheld in appeal”
We are in total agreement with guidelines of the said decision. So making application of yardstick of the said decision to the present case on hand, we are of the view that, the facts of the present case on hand and fact and circumstance of the above decision are on different footings. So the said decision will not come to the rescue of the complainant in any manner. So viewing the case of the complainant, on the back ground of execution of agreement to sell, construction agreement, execution of sale deed duly registered and taking possession of apartment already by the complainant together with the prayer made in the present complaint, we are of the considered opinion that, the present complaint of the complainant, in the present form is not maintainable. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainants is dismissed, as not maintainable. So, under the circumstance, no order as to cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 28th day of September 2012.
MEMBER MEMBER PRESIDENT
