Date of Filing:27.01.2018

Date of Disposal:17.04.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

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

ORDER

SMT.NANDINI.H.KUMBHAR, MEMBER

1. This complaint is filed by the complainant under section 12 of the C.P.Act, 1986 against the OPs alleging deficiency of service.  

2.   The brief facts of the case is as follows: 

The complainant booked a villa with OP in December2021 and after pre-delivery inspection completed in September 2017 OP has provided the final settlement in November 2017. As perthe para-23 of agreement, the villa is supposed to be completed in 30 months from the date of signing the agreement. If company fails to complete the construction within that period, it shall pay compensation of Rs.5/- per square feet, but till date the construction is not completed and not handed over to the complainant, but the builder considers December 2016 as the complete date of construction and delay compensation calculated only until December 2016.But when the complainant visited in 2016, there were many constructions works were ongoing. But the final pre-delivery inspection happened in September 2017 and several issues identified are fixed. Under such circumstances, the builder says he willtreat the very first delivery inspection date i.e. October 2016. He will provide the delay compensation only until December 2016 of Rs.6,21,686/-. While the OP/builder is supposed to give the delay compensation of about Rs.9,40,000/-. Assuring the builder/OP complete the construction and hand over by the month of February 2018. The OP has also reduced 06 monthsdelay compensation for the reason of force majeure conditions cited in the terms of the agreement. So far the complainant has paid total amount of Rs.1,05,35,840/-as 07 instalments at the time of possession, OPcomputes the interest to be paid byhim in order to complainant to take handover. And also OP forcing to pay charges ofRs.59,000/- for services of providing piped gas connection which is neither part of any agreement nor the request of the complainant. While the complainant still struggling to get the possession even after paying more than a crore irrespective of these irregularities OP has asked to pay the interest for these milestone payments. As per agreement builder shall charge interest at the rate of 18% p.a. for delay payment from the buyer and in the same agreement builder shall pay the buyer Rs.5/- per sq.ft./month for duration of delay in handover of possession. The OP was verbally told that they would never charge the interest for any minor delay incurred from the buyer at the time of signing the agreement. Aggrieved by the act of the OPs the complainant filed this present complaint seeking relief as prayed in the complaint.

3. Notice to the OP1 & 2  duly served. OPs represented by their counsel and filed their written version, affidavit  in support of the plea.

4. The complainant has also filed chief examination affidavit by reiterating the complaint allegations and also filed documents in support of their plea.

5. Heard arguments and the matter is posted for orders.

6.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1            :       Affirmative

Point No.2            :       As per final order

REASONS

8. POINT NO.1:-  The complainant booked a villa with OP in December2021 and after pre-delivery inspection completed in September 2017 OP has provided the final settlement in November 2017. As per  the para-23 of agreement, the villa is supposed to be completed in 30 months from the date of signing the agreement. If company fails to complete the construction within that period, it shall pay compensation of Rs.5/- per square feet, but till date the construction is not completed and not handed over to the complainant, but the builder considers December 2016 as the complete date of construction and delay compensation calculated only until December 2016.  But when the complainant visited in 2016, there were many constructions works were ongoing. But the final pre-delivery inspection happened in September 2017 and several issues identified are fixed. Under such circumstances, the builder says he will  treat the very first delivery inspection date i.e. October 2016. He will provide the delay compensation only until December 2016 of Rs.6,21,686/-. While the OP/builder is supposed to give the delay compensation of about Rs.9,40,000/-. Assuring the builder/OP complete the construction and hand over by the month of February 2018. The OP has also reduced 06 months  delay compensation for the reason of force majeure conditions cited in the terms of the agreement. So far the complainant has paid total amount of Rs.1,05,35,840/-  as 07 instalments at the time of possession, OP  computes the interest to be paid by  him in order to complainant to take handover. And also OP forcing to pay charges of  Rs.59,000/- for services of providing piped gas connection which is neither part of any agreement nor the request of the complainant. While the complainant still struggling to get the possession even after paying more than a crore irrespective of these irregularities OP has asked to pay the interest for these milestone payments. As per agreement builder shall charge interest at the rate of 18% p.a. for delay payment from the buyer and in the same agreement builder shall pay the buyer Rs.5/- per sq.ft./month for duration of delay in handover of possession. The OP was verbally told that they would never charge the interest for any minor delay incurred from the buyer at the time of signing the agreement. Therefore, the complainant filed this complaint seeking relief as prayed in the complaint.

9.  OP represented by their counsel, filed their version and affidavit. The OP has denied all the allegations and any deficiency of service on their part. The OP has stated that, the complainant has not  made Fire Luxur Developer Pvt. Ltd. as a  party, despite having booked a flat from them and the OP is being a merely employee of the company and the complaint is not maintainable for non-joinder of necessary parties and the agreement dt.14.03.2012 between the complainant and OP developer allotted the same to the complainant and as per  clause-20 of said agreement the complainant had agreed that in case there was a delay in payment of installment due to OP company the rate of interest 18% p.a. would be charged and also agreed to adjust the installment amount received from the complainant first towards the interest if any due from the complainant, but  due to reasons beyond their control and government policies and also for various reasons. There was delay in completing the construction of the villa. As per the agreement  OP company has handed over the possession of the villa within 30 months or earlier i.e. within September 2014 and if there is delay in handing over the possession of the villa the compensation would be paid at the rate of Rs.5/- per sq.ft and such for the delay the OP company is liable to pay amount of Rs.6,21,686/- and as per clause-23 of agreement, the OP company sent email on 23.11.2016 to invite for offer of possession and asking the complainant to inspect the property and take over the possession, but the claim of the complainant that 1^st inspection request was in October 2016, for which no documents has been produced and there was delay in payment and after  taking consent of all its buyers before installing the gas pipe line and the complainant has been charged accordingly. The complainant had never objected till date. Hence, the OP company providing compensation with respect to delay in possession of the project of Rs.6,21,628/-  and also ready to give possession which is ready from 23.11.2016. It is also submitted that the complainant is willing to delaying the process of taking over the possession. Wherefore, OP prays to dismiss the complaint for above reason.

10.  The complainant filed chief examination affidavit by reiterating the complaint averments as against the OP and also produced relevant documents in support of their contention. From the perusal of the documents produced by the complainant has established that there is an agreement between the complainant and the OP, wherein as per the agreement the complainant had paid a sum of Rs.1,05,35,840/- in 07 installments to the OP and as per the terms and conditions of the agreement that the OP has agreed to hand over the said villa within 30 months or earlier i.e. within September 2014. If there is any delay in handing over the possession, compensation would be calculated at the rate of Rs.5/- per sq.ft. have to be paid to the complainant. The complainant produced all the documents of mail conversation and final settlement report and the complainant also produced the delay for payment, in which the last payment made on 05.09.2017 which means there is  a delay in payment and as per clause-20 of the agreement the OP has charged 18% interest and when it is a part of agreement which cannot be waive off.  Further the OP has sent invitation letter to the complainant dt.23.11.2016 via email offering possession asking the complainant to inspect the property and take over the possession, but the contention of the complainant that inspection happened in the year 2017, for which the complained failed to prove  the deficiency in service on the part of the OP by producing any evidence. Under these circumstances the OP/builder  pay compensation as agreed and the compensation until 2016 as the construction completed and pay a sum of Rs.6,21,686/- after considering the complaint averments and other allegations as against OP.  Subsequently by considering the agreement between the parties the OP has to complete the construction of the villa and due to various factors there was delay in construction, for which the OP has intimated to the complainant via mail, hence the OP has failed to deliver the physical possession of the said villa within a said period for the above reason.

11. In view of the above,  by considering  the facts and circumstances of case and  the documents produced the email conversation between the OP and the complainant dt.04.09.2017 there is a delay in making payment  and as per the clause of the agreement there is a delay in payment. As per contention of OP  in their version, the OP has accepted to give possession of the villa as agreed and willing to pay compensation with respect to delay in completion of the project and for the installation of gas pipe line after OP had taken consent from the buyers and the complainant has agreed to install the gas pipe line, which was clearly mentioned in document, which is marked as Ex.A9b and the OP has admitted in his version that the OP has agreed to provide compensation with respect to delay in completion of project which amounts to Rs.6,21,686/- and also possession of villa which is  ready with effect from November 2016.

12. In view of the above discussion and perusal of the complaint averments and documents produced, the Commission observed that there is delay in possession of the said villa, for which the OP is direct to refund the amount as delay compensation as agreed  and also give possession along with other reliefs as granted. Accordingly, we answer the Point No.1 partly in affirmative.

13. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                         ORDER

1. The complaint filed under section 12 of C.P. Act, 1986 is hereby allowed.
2. OP is directed to give possession of said villa and pay delay compensation of Rs.6,21,686/- along with interest at the rate of 8% p.a. from the date of filing of the complaint till the payment is made.
3. The OP is directed to pay the compensation of Rs.5,000/- towards deficiency of service, pain and suffering and Rs.5,000/- towards cost of litigation.

4.  Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 17^th April  2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit: Murugan Natesan -who being complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:

Sri Praveen Kulkarni-Who being the OPs

Documents produced by the OP: Nil
 

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*