Complaint filed on: 22.10.2013                                                     Disposed on: 23.01.2017

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.2332/2013

DATED THIS THE 23rd JANUARY OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant: -                     

Sunitha vallamkonda

Daughter of Alampalli Aswatha Narayana

Aged about 42 years

Resident of 4598

Terra Place,

San Jose, USA

Represented by her Power of Attorney Holder Sri.V.S.Krishna Murthy

s/o Sri.V.Subramanyam

Aged about 74 Years

Also residing at No.1629-A/2-1, 5^th ‘B’ cross, Banashankari,

I stage, II Block,

Bengaluru-560050

By Adv. Sri.M.S.Ashwinkumar

V/s

Opposite party:-       

The Prestige Estates

Projects Pvt. Ltd.,

The Falcon House

#1, Main Guard cross,

Bengaluru-560001

Rep by its Executive Director

By Adv.Sri.Mohumed Sadiqh

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/developer for delay of three years in handing over the possession of her schedule apartment, and for collecting the maintenance amount and thereby has claimed the reliefs of:

1. Interest at 7% from 15.07.2005 on the entire amount of Rs.77,71,150/-
2. Compensation of Rs.8,40,000/- for the loss of rent at 34,000/- per month from 30.09.2008
3. Refund of Rs.73,625/- collected towards maintenance charges with 18%.

Schedule Apartment no.14187 (2670 sqft),

18th floor of Block 14,

Prestige Shanthiniketan,

Hoodi, Bengaluru

2. The case of the Complainant in brief is that she entered in to sale agreement/Ex-A1, construction agreement/Ex-A2 both dated 15.07.2005 with Opposite party towards purchasing of the schedule flat which was to be constructed and handed over to her within July 2008 with 3 months grace period.  The Opposite party had agreed to pay 7% interest on the paid amount for the delayed period of handing over the possession.  There was delay in handing over the possession as explained by himself through letter dated 06.03.2009. The Opposite party obtained occupancy certificate dated 20.12.2010 from BDA and handed over the possession as per Ex-A5, Ex-A4 letters on 25.11.2011 and executed the registered sale deed Ex-A6 dated 28.12.2011. Because of such delay she lost her income of monthly rent at the rate of Rs.34,000/- per month as supported by Ex-A7/rent agreement dated 26.08.2012. The Opposite party had no right to collect the maintenance amount after the period of one year but he has collected Rs.73,625/- as against the agreement and hence he becomes liable to return the same amount. The Opposite party failed to respond to her legal notice dated 06.08.2013 and hence she was constrained to file this complaint.

3. The Opposite party has resisted the complaint contending that it is hit by non-joinder of necessary parties namely Chaitanya Properties Pvt. Ltd. The Complaint is ex-facie barred by law of limitation as it is filed after 5 years from the date of alleged cause of action. The delay is because of the reasonable grounds which was informed to the Complainant with reference to clause 5(a) and 5(c) of construction agreement/Ex-A2. The Complainant who was aware of the reasons mentioned through his letter/Ex-A3 dated 06.03.2009. The time which was extended affected him only, in bearing the cost of construction though it was increased. Hence he is not liable to pay any compensation to the Complainant. The sale deed/Ex-A6 dated 28.12.2011 at para no.5(4) shows that the Complainant had declared and confirmed that she has no claims against the Opposite party confirming that the builder has comply with their all obligations under the agreements to her satisfaction. As per clause 14 of sale agreement, 5g of construction agreement, after the registration of sale deed and delivery of the possession, she will not have any claim against him. There is no deficiency in service by him. The complaint is liable to be dismissed.

          4. The Complainant who filed this complaint through her power of attorney holder based on Ex-A9 GPA has relied on his affidavit evidence and Ex-A1 to Ex-A9 documents. No documents were produced by the Opposite party, though one witness Aravind Pai is examined on his behalf. Written arguments were filed by both sides relying on reported decisions and other authorities. Arguments were heard.  

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

1. Whether the Complainant establishes the alleged deficiency against the Opposite party in not paying the 7% interest from October 2008 in terms of construction agreement/Ex-A2 about her purchased flat and in collecting the maintenance amount as alleged ?
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 Complainant entered in to sale agreement Ex-A1, construction agreement Ex-A2 both dated 15.07.2005 towards the construction and purchasing of schedule apartment and got the sale deed/Ex-A6 dated 28.12.2011 registered in her favour after taking possession as per Ex-A5 possession checklist and possession letter Ex-A4 both dated 25.11.2011.

          8. The Complainant has relied on clause 5(a) & 5(c) of       Ex-A2/construction agreement, alleging that because of abnormal delay in handing over the possession of the schedule flat, the Opposite party becomes liable to pay 7% interest on the paid amount.

          9. In the referred clause 5(a) it is mentioned that every efforts would be made to deliver the flat within 01.10.2008, but no responsibility would be accepted if delays are by the statutory bodies, authorities regarding clearances issuing certificates etc.,          The referred clause 5(c) stated that the developer agrees to pay 7% interest paid under Ex-A1 & A2 agreements for any delay in delivery of the possession, not attributable to any reasons, even after the lapse of grace period as stated above.

          10. Through letter Ex-A3 dtd.06.03.2009, the Opposite party developer informed to the Complainant about the re-scheduled delivery dates to be commenced by July 2009 in the phased manner about the separate blocks and also has informed to mention her consent about the additional required amenities within 31.03.2009 relating to mosquito mesh and glass portion for shower area and the additional car parking (covered and uncovered) (Rs.2.5 lakh-Rs.1.14lakh).

          11. The sale deed Ex-A6 at clause 5.4 shows that the Complainant declared and confirmed that she has no claims against the builder in relation to her schedule apartment, whatsoever, further confirming that builder has complied with all his obligations under the agreement Ex-A1 & A2 to her satisfaction and thereby she fully and completely discharges the seller/builder from all his obligations under the said agreements Ex-A1 & A2. It is reiterated in the first para of page no.8 of the sale deed and also at the end of the clause no.14 of the sale agreement Ex-A1 under the head possession.

          12. Regarding the maintenance, the clause no.13(b) of the construction agreement Ex-A2 says that the common maintenance charges becomes payable on possession of the schedule apartment and it shall be maintained for a period of 12 months by the builder at his cost. Thereafter it has to be maintained at the rate of Rs.25/- per square feet payable by the apartment owner. Clause 13(c) reads that in addition to the maintenance charges the Complainant/flat owner, while taking possession has to contribute Rs.25/- per square feet as owner’s contribution towards “Corpus Fund” which shall be maintained in “Escrow account” and transferred to the owners’ association when it is formed and it is collected to ensure the smooth functioning of the common area, maintenance activities in the premises.

          13. Such being the case the amount collected by the Complainant cannot be considered as the charge for maintenance for the first year itself, in the absence of any cogent evidence. After the execution of the sale deed, by virtue of the terms of sale agreement and construction agreement also the relationship between the Complainant and the Opposite party ends, relating to the reliefs claimed in this complaint.

          14. The Complainant has relied on the decisions to contend that excess amount collected becomes recoverable and it cannot be accepted as the referred judgment I (1992) CPJ 64 NC relates to collection of the entire amount in 1983 the possession was delivered in 1989 by demanding the then existed construction value. No such excess amount about the building is collected in this case.

          15. In the case I (1992) CPJ 66 NC there was no contractual obligation to handover the possession. In 1993 CPJ 362 NC case there was no defence by the Opposite party therein regarding the allegations of the Complainant therein. Hence the above referred decisions also cannot be made applicable to this case.

          16. In view of the above observations the contention regarding the loss of monthly rents recoverable from the Opposite party, as the loss caused to her, does not survive for consideration.  The Complainant has failed to establish the Consumer Dispute No.1 and Accordingly the Consumer Dispute No.1 answered in the negative.

          17. Consumer Dispute No.2: In view of the finding of Consumer Dispute No.1 the Complainant deserves 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 23rd day of January 2017).

Documents marked on behalf of Complainant:

Documents produced on behalf of Opposite party