Date of filing:22.02.2013

                                                      Date of Disposal:10.08.2023

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 10^th Day of August 2023

PRESENT

Mr. K B SANGANNANAVAR: JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

CONSUMER COMPLAINT NO. 32/2013

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ORDER

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER

1. This is a complaint filed under Section 17 of Consumer Protection Act, 1986 to direct OP Nos.1 to 3 to deliver physical possession 24% of super built-up area in multi-storied residential apartment covering apartment building constructed in the schedule 24% property and to pay Rs.57,50,000/- as compensation and such other reliefs deemed fit to meet the ends of justice.

2. The brief facts of the case of the complainant is stated below:

He is the absolute owner of site no.1, bearing house list no.465, situated at Papamma Layout, B-Channasandra Village, K.R.Puram, Bengaluru East Taluk measuring east to west on the northern side 85 ft. and on the southern side 85 ft. and the north to south on the earstern side 50 ft. and on the western side 46 ft. which is fully described as schedule complaint property. OP1 is a partnership firm engaged in developing immovable properties, while OP Nos.2 and 3 are its partners.They have entered into a registered JDA on 12.04.2004 with complainant agreeing to develop the schedule property by constructing multi-storied residential apartment building and agreed OPs are entitle for 76% of the super built-up area together with proportionate undivided share in the land and complainant is entitle for the remaining 24% of the super built-up area together with proportionate undivided share in the land.

3. As per clause 6.1 of the JDA, OP had to complete the construction of the multi-storied residential apartment building in all respects and deliver possession of owners constructed area to the complainant within 09 months with an extended period of 02 months.  Complainant had also extended a registered GPA dated 12.04.2004 authorizing OP Nos.2 and 3 to secure necessary permissions. The OPs have not constructed multi-storied residential apartment building within the agreed time.  Finally they have constructed 14 flats of the scheduled property beyond the stipulated time and without following the building bye-laws and approval of the plans. Even after completion of construction they have not obtained the completion certificate from the concerned authority and delivered 24% of the owners share as agreed.  They have broke  the terms of the JDA. As per clause 17.1 of JDA, in the event of breach of terms of agreement, hence complainant shall be entitled to recover all losses or damages suffered in addition to claiming delivery of possession of owners constructed area.  Had the OP acted in terms of JDA and handed over owners   share could have earned a monthly average rental income of Rs.50,000/- and due to failure of the OP he has been suffering loss in addition to loss of severe mental agony, tension, inconvenience, harassment and also loss of power.  The OPs are liable to pay Rs.50,000/- per month as compensation to the complainant from February 2005 onwards up to delivery of ownership.

4. Complainant got issued a legal notice on 17.01.2013 calling upon the OPs to deliver 24% of the super built-up area and Rs.50,000/- per month towards loss and damages for 95 months from the date of expiry of stipulated time under JDA dated 12.04.2004.  However, the OP2 had replied on 12.02.2013 with   false facts stated Rs.27,00,000/-  was paid by them to him towards full and final settlement of his share and complainant had acknowledge of the same and had endorsed in writing on 10.06.2005.  In fact complainant had neither received the alleged sum of Rs.27,00,000/- nor issued an acknowledgment. Hence   to get redress of his grievance raised consumer complaint.

5. The OPs have contested the complaint, submitted their version contending that complainant is not a consumer within the ambit of Sec.2(d)(i) of Consumer Protection Act, 1986.  The complaint is not maintainable before the Commission. They have admitted execution of JDA on 12.04.2004 and execution of GPA by complainant on 12.04.2004 in their favour.  They have constructed the apartment building as per the norms laid down by the concerned authorities of the Government after due obtaining necessary license and   permission. The OPs at no point of time committed any breach of the terms and conditions of the JDA.  Complainant is claiming the profit on the basis of his share of 24% of the super built-up area at Rs.50,000/- which is commercial in nature.  The complaint does not come within the meaning of consumer.  They have admitted receipt of legal notice dated 17.01.2013 and   have stated suitably replied in their reply notice dated 12.02.2013.  The OPs have constructed the apartment building in the year November 2005 and after completion of the construction it was intimated to the complainant.  The complainant expressed his critical financial position and had expressed his intention to sell the schedule property to the OPs had received Rs.15,00,000/- and agreed to receive the balance amount of Rs.9,00,000/- and subsequently after some time had received the balance amount of Rs.9,00,000/- and in total he had received the entire amount of Rs.24,00,000/- and had received the said amount towards full and final settlement amount executed an endorsement or shara in local language on the JDA but without disclosing anything about subsequent development happened  with an intention to humiliate the status of the OPs in the eyes of society has falsely filed complaint which is not maintainable.  The clause 17.1 provides for aggrieved party shall be entitle to the specific performance and also be entitled to recover all the losses and expenses incurred as consequences of such breach from the party committing breach. Clause No.18.1 provides for the dispute with regard to JDA shall be referred to arbitration to the sole arbitrator to be appointed by the parties as per the provisions of Arbitration and Conciliation Act, 1996.  The complaint is not at all maintainable even on the ground that complaint is barred by limitation as there was an inordinate delay in filing of complaint.  The construction of the apartment was completed in the year 2005 and after completion of the construction informed to the complainant during the year 2005-06 and further to be stated complainant   was a sitting MLA, use to come to Bengaluru almost every day while going and coming to Bengaluru from his native place Bangarapete. He  was visiting the schedule site to see the stage of construction almost 2 to 3 times in a week and accordingly he is also having the knowledge of the building within stipulated time. After completion of the construction of the apartment building, OP1 firm had sold apartments in favour of Mr.Roshan D’souza on 15.12.2004, Mr.N.Krubanidhi and K Pavithra on 29.01.2005, Mr.S.Satyaprasad on 05.02.2005, Mr.R.Ragavendra Rao and Mr.R.Nagendraprasad on 04.05.2005, Mr.Muniraju on 27.08.2005, Mr.Pramod Nambiyar on 29.08.2005, Mr.K.A.S.Menon on 29.08.2005, Mr.Sudeep Kumar Tirpathi on 15.09.2005, Mr.M.L.Suresh on 19.09.2005 and this fact has been admitted in C.C.No.53670/2014 on the file of X Additional C.C.M, Mayohall, Bengaluru.  The complainant had demanded Rs.27,00,000/- to sell his share and ultimately had agreed for Rs.24,00,000/- was already received by him.  Complainant had filed complaint against OPs in PCR No.15614/2013, which is still pending consideration. Complainant is an Ex-MLA and in all probabilities having such a background will not keep quiet for  long   08 years of period, if the construction is not completed and not given his share, without taking any action. Hence  complaint filed by complainant deserves   to be dismissed.

6. In view of rival contentions of the respective parties, Commission held an enquiry by receiving affidavit evidence and documents and after closure of enquiry, we heard learned counsels on record for the parties to the complaint.  Now few vital points arises for consideration of the Commission which are as follows:

1.  Whether complaint filed under Sec.17 of Consumer Protection Act, 1986 seeking reliefs against the OPs on 20.02.2013 is well within the time limitation as provided under the provisions of CPA 1986?
2. Whether complainant can invoke the provisions of Consumer Protection Act, 1986 despite providing Arbitration Clause No.18.1 in JDA?
3. Whether complainant could be said a consumer within the definition of Sec.2(d)(i) of Consumer Protection Act, 1986?
4. Whether complainant proves that OPs have rendered deficiencies in services in respect of his share of 24% of super built-up area and is he entitled for reliefs as prayed?

7. Learned counsel for complainant placed a reliance reported in 2008 (10) SCC 345 in the case between Faqir Chand Gulati v. Uppal Agencies Pvt. Ltd. and another decision decided on 10^th July 2008 on Consumer Protection Act, 1986,  had also cited in his complaint itself that his complaint is maintainable, asserting that it comes within the definition of consumer as defined under Sec.2(d)(i) of Consumer Protection Act, 1986 wherein the question that arose before the Supreme Court were -

1. Whether the land owner, who enters into an agreement with builder for construction of an apartment building and for sharing of the constructed area is a “consumer” entitle to maintain a complaint against the builder as a service provider under Consumer Protection Act, 1986?
2. Whether the complaint against the builder is maintainable under the Consumer Protection Act for seeking delivery of completion certificate and C&D forms (pertaining to building assessment) issued by the municipal corporation in respect of the said building? and
3. Whether the prayer for completion certificate and C&D forms involves in prayer for rectification of the deficiencies in the building so as to secure the completion certificate and C&D forms? 

     On the above points the Supreme Court held as thus:

There is no dispute or doubt that a complaint under Consumer Protection Act would be maintainable under following circumstances:

1. Where the owner/holder of the land who has entrusted the construction of the house to a contractor, has a complaint of deficiency of service with reference to construction.
2. Where the purchaser or intending purchaser of an apartment/flat/house has a complaint against the builder/developer with reference to the construction or delivery or amenities.

8. But the present case is concerned with a third hybrid remedy which is popularly called as Development Agreements or Joint Venture Agreement or Collaborate Agreements between a land owner and a builder.  In such transaction the landholder provides the land, the builder puts up their building thereafter they share the constructed area the builder delivers the owners share to the land owner and retains the builder share.  The Landholder sells or transfers the undivided share in the land corresponding to the builders share of the building to the builder or his nominees by usual feature of these agreements is that the land holder will have no say or control in the construction nor will he have any say as to who and at what cost the builders share of apartment are to be dealt with or disposed off.  His only right is to demand delivery of his share of constructed area in accordance with the specifications.

9. It is therefore this Commission has to apply the  above ratio  laid down by the Hon’ble Apex Court to the facts of the complaint and  decide whether materials placed on record by the parties to the complaint still give us to decide the  complaint under Consumer Law in a summary procedure considering subsequent development taken place commencing from November 2005.  In other words, in our view the case of complainant and OPs is not so simple to be examined by this Commission under Consumer Laws which would be discussed by us infra.    

10. It is the version of the OPs that they have constructed the apartment as per the norms laid down by the concerned authorities of the Government after obtaining necessary license and   other permissions.  The parties have not disputed that it was agreed between parties that 76% of the super built-up area and 24% of the super built-up area together with proportionate UDS in the land has to be shared by them and as agreed under the said agreement, OPs have to construct the apartment in the year November 2005 and after completion of the construction, it was intimated to the complainant, which the complainant had denied. The complaint is raised on 22.02.2013, as such we have consider further materials placed on record by the OPs and to decide whether such documentary materials are admissible in evidence or not. The facts remained would be are marked as Ex.R12, which is a Shara or endorsement and another document would be Ex.R3 final settlement dated 10.06.2005. Thus these two documents would play a vital importance besides other additional materials which will be mentioned herein after.

11. The Ops have placed documents marked as Ex.R1 to Ex.R11.  Ex.R1 is Original Registered Sale Deed dated 13.08.2001 obtained by complainant Mr.C.Venkateshappa from Mr.Hanumantha Reddy and Mr.C.H.Devendra N in respect of said property where the apartment building was put up by OPs.  The Sale price of the said property was Rs.3,20,000/-. Ex.R2 is a Partnership Deed dated 12.04.2004 which was formed under the name and style Sky Lark Constructions.  Ex.R3 is Deed of Reconstruction of Partnership Deed on 15.07.2004 which in fact are not disputed at all.

12. Ex.R4 to Ex.R11 are certified copy of the registered Sale Deed dated 15.12.2004, 29.01.2005, 04.05.2005, 27.08.2005, 27.08.2005, 29.08.2005, 29.08.2005 and 15.09.2005 respectively.  Thus these 08 registered Sale Deeds were been executed in favour of Mr.Roshan D’souza, Mr.N.Kirubanidhi and Ms.Pavitra K, Mr.Raghavendra Rao, Mr.R.Nagapramod, Mr.M.L.Suresh, Mr.Muniragu, Mr.K.A.S.Menon, Mr.Pramod Nambiar, Mr.Sudeep Kumar Tirpathi, who are not at all parties to this complaint. In other words, under these 08 absolute Sale Deeds, complaint Mr.C.Venkatesh, having been represented by GPA holder Sky Lark Constructions as partnership firm, which is represented by its partners Mr.Jayaram and Mrs.Jayamma have sold the 08 apartments.  Learned counsel for complainant submits that Mr.Jayaram is not a Power of Attorney Holder of the complainant which in our view cannot be examined under Consumer Laws, since all the 08 apartments were already disposed off under absolute Sale Deeds, which could not be dealt in    by Consumer Commissions in a summary way, since the issues raised are hard issues. 

13. In the above view of the matter, we have proceed to discuss, whether complaint is barred under CPA, 1986 or under Limitation Act as the case may be. In view of the 08 absolute Sale Deeds executed by GPA Holder, to whom he had executed a GPA which he admits give rise to us to draw an inferences that he had notice of execution of sale deeds. We have opined so from the materials on record which would not be bind the parties to this complaint before any other authorities, since observed without going in detail, in other words to say without there being comprehensive trial on the hard issues involved in the complaint between the parties.

14. Let us examine the other materials marked as Ex.R14 is copy of FIR registered by Ramamurthy Nagar Police Station in Cr.No.0429/2013 on 30.09.2013, which ofcourse, as directed by the X Additional C.M.M., Mayohall, Bengaluru City, pursuant to enquiry held in PCR.No.51674/2013 for the offences punishable under Sections - 420, 423, 424, 425, 426, 207, 463, 464 R/w Sec.34 of IPC.   The Police concerned submitted a charge sheet as per Ex.R15 for the offence of Sec. 420 R/w Sec.34 of IPC.  Ex.R17 is evidence of complainant   deposed before X Additional C.M.M., Mayohall, Bengaluru.  In our view these documents would show that dispute raised by complainant is does not comes within the definition of a consumer and is   a consumer dispute to be legally decide under CPA, 1986.

15. We have also to consider, OPs have taken interrogatories to be answered by complainant U/o XI Rule 9 R/w Sec.151 of CPC. They are 33, wherein few replies are he was not MLA from Bangarpete Constituency but was MLA from Reserved Bethamangala Constituency in Kolar District in the year 2004.  Let us skip queries commencing from 03 to 21 and make mention replies to interrogatories commencing from 22 to 26. The purport of his reply would be, he had not agreed to receive Rs.24,00,000/- from OP2 in the first week of July 2005, nor received Rs.9,00,000/- by way of cash and Rs.15,00,000/- through cheque in the presence of witnesses Mr.Srirama and Mr.Shankar.  The name of Mr.Jayarama as partner has referred to the interrogatories at 22 was not a partner of M/s Sky Lark Constructions.  He had not received any amount from OPs in lieu of flats.  He had not signed any agreement in the first week of June 2005 in the presence of Mr.Sriram and Mr.Shankar nor received Rs.9,00,000/- by way of cash and Rs.15,00,000/- by way of cheque. He had not signed the alleged agreement dated 10.06.2005 nor received additional sum of Rs.3,00,000/-.  Further with regard to interrogation no.26, he submits that after execution and registration of JDA, regarding development of the property his signature were taken in the blank papers for the purpose of getting building license, approval of building plan and such other statutory permissions.  It was also the contention of Complainant that the signatures so taken has been misused and the alleged 02 agreements are created and they are   created documents called as Shara and Final Settlement.  Thus, in our view his replies to the interrogatories submitted by OPs are suffice to hold that his complaint could not be decided by the Consumer Commissions.  In other words, deciding on these hard issues would affect the rights of the parties and complainant had remedy elsewhere, since those hard issues have to be tried in a full dressed trial and in a summary manner.  Further Ex.C2 Copy of Power of Attorney dated 12.02.2004 executed by complainant was in favour of Sky Lark Constructions, which is a partnership firm represented by its partners Mrs.Jayamma W/o Mr.Jayaram and Mrs.T.J.Pushpalatha W/o R.Suresh and in all the Sale Deed marked as Ex.R4 to Ex.R11 Mr.C.Venkateshappa, is represented by his GPA holder M/s Sky Lark Constructions, a partnership firm, represented by its partner Mr.Jayaram and Mrs.Jayamma, is again did not come to the assistance of complainant to contend that Mr.Jayaram was not his GPA, since facts remained that in all the Sale Deeds not only Mr.Jayaram his wife Mrs.Jayamma, are partners of M/s Sky Lark Constructions, a partnership firm have executed absolute Sale Deeds in favour of 08 buyers as stated above during 2004-05 itself and they were been put in occupation under those sale deeds and the complainant had raised Consumer Complaint on 22.02.2013 which has to be held could not be examined on the alleged rendering deficiencies of services on the part of Ops by this commission in view of the subsequent event stated supra were happened.

16. Learned counsel for OPs have placed a reliance reported in (2005) 06 SCC 733 in the case between Kasturi v. Iyyamperumal and others wherein held - there must be a right to some relief against such party in respect of the controversies involved in the proceedings or ii) no effective decree can be passed in his absence and this ratio aptly applicable to the facts of the case of the complainant since as already stated above Sky Lark Constructions a partnership firm had executed 08 registered Sale Deeds in favour of purchasers who have not at all parties herein this complaint.  Learned counsel further placed a decision in 1998 AIHC 966 in the case between Mrs.Cynthia Matin, W/o A.V. Martin v. Prembehari Makhanlal Yadu and another wherein held - clear contents in letter - Thus once letter is proved by proving signature of the maker thereof, there would hardly be any reason to doubt the same regarding veracity of the contents therein.  Further relied on 2010 SAR (Civil) 78 of the Supreme Court in the case between M/s Grasim Industries Ltd., and another v. M/s Agarwal Steel wherein para-5 held - when a person signs a document, there is a presumption unless there is proof of force or fraud, that he has read document properly and understood it and only then he has affixed his signature thereon, otherwise no signature on a document can ever be accepted.  In particular, businessmen, being careful people (since their money is involved) would ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case.  There is no allegation of force of fraud in this case. Hence it is difficult to accept the contentions of the respondent while admitting that the document Ex.D8 dears his signature that it was signed under some mistake, which in our view substantiates contents of OPs in so far as Shara are concerned.  But on the case on hand facts remain that this authority being Consumer Commission has to decide the complaint under CPA, 1986 only with regard to alleged deficiencies in services, as such it could not be examined in a summary manner   as already opined supra. In order to decide on these hard questions, parties have to approach court competent to try these hard issues. Accordingly recorded findings on all the four points and proceed to dismiss the complaint as not maintainable under CPA, 1986. The parties are directed to bear their own costs.

17. Furnish free copy of this order to both parties.

        Lady Member                          Judicial Member

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