Complaint filed on: 07.03.2012

                                                      Disposed on: 20.12.2016

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.489/2012

DATED THIS THE 20^th DAY OF DECEMBER 2016

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant: -                     

Ganesh S

VE 103, Fusina,

Purva Venezia,

Yelahanka New Town,

Near Mother Diary,

Bengaluru-560064

By Inperson

V/s

Opposite party:-       

The Managing Director

Puravankara

Projects Ltd.,

#130/1, Ulsoor Road,

Bengaluru-560042

By Adv. Sri. J.Hudson Samuel

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

          The Complainant has been alleging the deficiency in service against the Opposite party builder/developer in not providing the amenities and in using poor quality of building construction materials against the terms of the agreement.

          2.  The case of the Complainant in brief is that in-connection with purchase and construction of apartment in Purva Venezia complex, he entered in to sale agreement and construction agreement both dated 26.05.2006 with the Opposite party. He had to take the possession of the apartment within 30 months from the commencement of the construction. He availed the housing loan from the HDFC bank to make payment about the agreed instalments. There was delay in the construction work. He exchanged e-mail dated 07.04.2009 and 14.04.2009 for which no reply was given by the Opposite party which made HDFC bank to stop the disbursal of the further instalments. The Opposite party though promised to handover the apartment by the end of 2010 and to complete the entire project by May 2011, pushed the date of delivery and delivered the possession in April 2011. During that period also the construction work was going on all around. The Opposite party refused to pay any compensation for delayed delivery. The promised amenities: namely, club house, swimming pool, tennis court, water body etc., were still not ready. There were quite few deviation from the contract signed between them and also deficiency in their service listed under 9 heads they are 1) delay in delivery of apartment from August 2009 till April 2011 for which Rs.7000/- per month rent becomes liable to be paid by the Opposite party for the period of 20 months amounting to Rs.1,40,000/- 2) club house is not ready, though membership fee was collected on monthly basis 3) provide of doors are poor quality 4) other doors and toilet doors not as per the schedule of construction agreement 5) ground tiles were not fixed properly 6) walls and ceilings having many undulations 7) though amount of Rs.1,93,232/- was collected towards BWSSB and BESCOM not provided the breakup of details of the same 8) badminton court was not provided. Hence this complaint.

          3. The Opposite party has filed the version contending complaint is not maintainable as the Complainant being the joint agreement holder doesn’t become the consumer. The Complaint is bad for mis-joinder and non-joinder of necessary parties. There is no cause of action, mis-representation of facts based on false, baseless and frivolous grounds it is liable to be dismissed. The commercial contract entered between them is beyond the jurisdiction of this court. The instalments amount, of the allotment application and the agreements were to be paid without default without demand. The Complainant became defaulter of the terms of the both the agreements, despite furnishing all the required documents to the HDFC bank. Through letter dated 23.06.2006 the Complainant was requested to make payment of Rs.8,09,760/- to complete the 30% of the total cost along with the detail breakup of the total amounts to be paid by him.  On 18.02.2007 the Complainant was informed about the commencement of the construction work with the particulars that the balance 70% would be beginning from that month. Beyond its control and other un-foreseen circumstances the construction could not be completed earlier to September 2009. Hence revised payment schedules were made informing to the Complainant. The un-seasonal rain during the year 2009-10, delay in getting statutory clearances from various departments, severe shortage of cement and steel, the standoff between the State Government and suppliers/transporters of sand also contributed for the delay.  The Complainant who inspected apartment on 09.04.2011 in response to the information dated 31.03.2011 got reduced payment after discussion with them and took possession on 15.04.2011 by executing declaration cum undertaking, to the effect that he was fully satisfied with the construction and fitments and fixtures for which he has no claims against Opposite party. Sale deed was executed and registered on 03.09.2011 in the joint names of himself and his wife. Rs.1 lakh received towards club house and its amenities does not carry interest and it was to be completed in September 2012 with the interaction and meetings with the residents.  The Complainant has made allegations on un-tenable grounds. The amount towards BWSSB and other charges amounting to Rs.2,10,945/- in details were provided and it was as per the clause 11A of construction agreement. There is no grounds to substantiate the claim of Rs.4,98,600/-. The complaint is liable to be dismissed.

          4. Affidavit evidence were produced by the Complainant and also three witnesses of the Opposite party. The Complainant has relied on Ex-A1 to Ex-A19 documents. The Opposite party has relied on Ex-B1 to Ex-B16 documents. Written arguments were filed by the Opposite party. Arguments were heard.

5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainant proves the deficiency against the Opposite party in providing the alleged amenities and in furnishing alleged poor quality construction materials for his purchased apartment and premises ?
2. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative

2) As per final order – for the following      

REASONS

          7. Consumer Dispute No.1 : The undisputed facts reveal that the Opposite party/Puravankara Projects ltd., is a developer and building constructor, who had the layout project and the block there in named Purva Venezia as shown in Ex-A3 and Ex-A19 layout sketch. The Complainant in-connection with three bedroom apartment number VE-103 in block no.1 applied for allotment of the same as per Ex-B1 and later entered in to sale agreement as per Ex-A1/Ex-B2, construction agreement as per Ex-A2/Ex-B3 both dated 26.05.2006. On payment of 30% the advance amount, it was confirmed by the Opposite party on 07.09.2006 as per Ex-A4, informing that BDA has approved but he has to receive the environmental clearance to commence the project and hence the instalments would be demanded after commencement of construction. The cost of the flat was Rs.46,69,790/- including car parking and other amenities as shown in Ex-B5.

          8. In-connection with the progress and completion of construction work and also the postponement of dates of delivery of possession of the flat, several e-mail correspondences took place between the Complainant and the Opposite party as per e-mails Ex-A6 to Ex-A17, in between September 2009 to April 2011.

          9. The possession of the flat was given to the Complainant in April 2011 by issuing the intimation letter for inspection as per Ex-B7 dated 31.03.2011. On 15.04.2011 the Complainant paid Rs.2,91,111/- wide receipt Ex-B8 and also executed Ex-B6 declaration cum undertaking  in favour of Opposite party. The registered sale-deed Ex A-18 was executed in favour of the complainant on 03-9-2011.

          10. It is also undisputed that subsequent to handing over of the flat the Opposite party provided the promised amenities/facilities namely club house, indoor badminton court, basketball court, tennis court, swimming pool, change rooms, bell tower areas,  to the apartment owners association on various dates in 2013 as shown in Ex-B9 to Ex-B15

          11. The Opposite party has questioned the locus standi of Complainant to file this complaint and also questioned the maintainability of this complaint on the ground that he is estopped from making any allegation in view of the clause 5 of the declaration cum undertaking document dated 15.04.2011 marked as Ex-B6 wherein it is mentioned as here:

“I/We have examined/inspected and I/we are/am fully satisfied with the construction of the schedule C flat in all respects as per the construction agreement and also all the fitments and fixtures are in order. I/We have no claim of any sort or nature whatsoever against the developer/vendor/ contractor in respect of any of their obligations including delay, damage, quality of goods and services, measurement specifications and functionality as per the agreements”.

          12. Ex-B6 the letter of declaration cum undertaking was executed by Complainant.  Through Ex-B6 the Complainant is estopped from making any allegations regarding delay, damage or service about the complaint ‘C’ schedule flat purchased through registered sale deed Ex-A18 in the joint names of himself and his wife. And thereby he has no locus standi to refer the contents of any of the agreements or the sale deed to make the allegations against the Opposite party.

          13. Because of the contents of the Ex-B6 the letter of declaration cum undertaking and Ex-A18 the registered sale deed, the alleged deficiency in service cannot be made out by the Complainant and hence it cannot be stated that there is deficiency in service by the Opposite party.

          14. The Complainant has executed Ex-A2 the construction agreement and the Opposite party also has relied on the same. The terms & conditions of construction agreement are is here under:

4) The second party is aware that default in payment by him would affect the completion of apartment and that there will not be any delay in making balance payment in EMI’s in between commencement & completion of construction.

6) The second party agrees not to delay or postpone on whatsoever ground and the consequential sufferance shall be at his risk.

7. (b) If any breach continues for more than two months, the developer becomes entitled to terminate the agreement and to forfeit 15% of sale consideration amount towards liquidated damages and to deal with the schedule apartment including selling the same to anybody, without any further reference to second party. The balance amount should be paid within 4 weeks after disposal of the apartment.

12) The second party shall not be entitled to take possession of the apartment until all payments due to developer is paid.

15) The stipulated date for delivery of the apartment is subject to variation on account of force majeure or acts of God or Government Orders/ Restriction/ Controls or any strike including transport strike and other reasons which are beyond the control of the first party. The first party shall not be responsible for delays in obtaining such connections from statutory authorities. The second party shall not be entitled to claim any losses/damages on the ground mentioned above.

          15. The Complainant being the party of the construction agreement and declaration cum undertaking has given up all his alleged rights and now he cannot agitate by adducing oral evidence. The documentary evidence excludes such oral evidence. Such being the case the acts of the Opposite party accepted by the Complainant cannot be considered as infringement of right of the Complainant by the Opposite party.  The alleged rights of the Complainant do not exist for determination. Thereby the Complainant has failed to prove the alleged deficiency in service or alleged un-fair trade practice and hence the Consumer Dispute No.1 is answered in the negative.

          16. Consumer Dispute No.2: In view of findings of Consumer Dispute No.1 the Complainant deserve to get the following:

ORDER

          The Complaint of the Complainant is here by dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 20th day of December 2016).

Documents marked on behalf of Complainant:

Documents marked on behalf of Opposite party.