Complaint filed on: 15.03.2017

                                                      Disposed on: 08.06.2017

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.397/2017

DATED THIS THE 08^th JUNE OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant/s: -                           

Sri.Rani Dan Sarda,

s/o Bhikchand Sarda,

Aged about 61 years,

R/at Apt No.1096,

9^th floor, Block I,

Prestige Shanthiniketan, Sadaramangala,

Hoodi Village,

Bengaluru

By Adv.Sri.S.Nanjundaswamy

V/s

Opposite party/s:-    

The Vice President (Business) Prestige Estates Projects ltd., (earlier known as Prestige Estates Projects pvt. ltd.,)

Falcon House no.1,

Main Guard cross road, Bengaluru-01

By Advocates M/s.K.V.Legal  

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 for his delay in handing over of the possession of the flat and thereby has been claimed the interest of Rs.6,76,401/- with further interest of 6% till realization along with compensation of Rs.5 lakhs.    

          2. The case of the Complainant in brief is that the Opposite party who constructed “Prestige Shanthinikethan” residential complex, entered in to sale agreement dtd.22.06.05 relating to flat no.1096, 9^th floor, block no.1, measuring 1418 sqft. of super built up area with car parking facility along with the construction agreement subject to various terms & conditions including the condition no.5 of delivery of the possession within 36 months from 01.07.05 with grace period of 3 months and in default to pay the interest at 7% on the amount paid under the agreement and the agreement to sell in case of delay. The Opposite party sold the said flat through registered sale deed dtd.03.08.11 after taking full sale consideration amount and delivered the apartment only on 14.08.10 instead of delivering on 01.07.08/01.10.08.  The said delayed possession made him to pay interest on the availed loan from HDFC bank at the exorbitant rate. He issued the legal notice dtd.08.05.12 demanding 7% interest and also damages of Rs.5 lakhs.

          2a. The Complainant filed CC.No.145/2012 and got the favourable order dtd.15.02.14 at Uttara Kannada District Forum, Karawara. The Opposite party filed appeal no.587/2014 and got the order which made him to re-present this complaint before Bengaluru Forum and accordingly filed this complaint.  

          3. The Opposite party has questioned the maintainability of this complaint as against the clause 5 of the construction agreement and that it is barred by limitation under 24A of CP Act. The Complainant is bound by clause 14 of agreement to sell and clause 5.3, 5.4 of the sale deed. The Complainant is fully aware that there was delay in the mandatory statutory clearance, permissions like issuance of the sanction plan, environmental clearance etc., which entitles him for extension of time in terms of clause 5(a), 5(b) and 5(c) of agreement and also about the notification issued by Ministry of Environment and Forest in the year 2006 making it mandatory for him to get the permission under the Environment Act 1996 before proceeding it for further construction. The agreement to sell and the construction agreement both dtd.22.06.05 are co-terminus and together record the relationship and transaction. The Complainant has not arrayed M/s.Chaitanya Properties which is necessary and proper party. The Complainant is not entitled for any relief. The Complaint is false, vexatious filed on unsubstantiated bald allegations. It is liable to be dismissed with cost.

          4. The Complainant had submitted copies of 11 documents along with the complaint but has not filed his affidavit evidence to prove his case. The Opposite party filed his affidavit evidence relying on Ex-B1 & B2 documents, besides relying on the contents of some of the documents of the Complainant side. arguments of the Opposite party were heard.

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

1. Whether the Complainant establishes the alleged delay in handing over of the possession of the sold flat 1096 in his favour by the Opposite party ?  
2. Whether the complaint is barred by limitation ?
3. To what order the parties are entitled ?

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

1) Negative

2) Affirmative

3) As per final order – for the following      

REASONS

          7. The undisputed facts reveal that the Complainant had filed the complaint earlier in CC.No.145/2012 as per Ex-A5 and got the favourable order dtd.15.02.14 as per Ex-A9 at Uttara Kannada District Forum, Karawara. The Opposite party filed appeal no.587/2014 and got the order wide Ex-A10 which made the Complainant to re-present this complaint before the Bengaluru Forum and hence this case is taken up for fresh consideration.  

          8. The Complainant has relied on the copies of order sheet/Ex-A11, complaint/Ex-A5, version/Ex-A6, written arguments of both sides Ex-A7 & A8 and final order copy/Ex-A9 about the first round litigation in CC.No.145/2012. All these documents were considered based on the memo filed on 08.06.17 with a request to proceed to pass the orders.  

          9. Consumer Dispute No.1: The Complainant has relied on Ex-A1/construction agreement dtd.22.06.05, Ex-A2/B2/sale deed dtd.03.08.11 and the Ex-A3/legal notice copy dtd.08.05.12 in support of this case.

          10. There is no dispute that Opposite party put up the construction of the residential complex named as “Prestige Shanthinikethan”. One of the flats in the said complex bearing no. 1096 at 9^th floor was purchased by the Complainant through sale deed Ex-A2/B2 dtd.03.08.11 for valuable consideration amount of Rs.35,05,447/-. The Complainant had taken the possession of the said flat on 14.08.10.

          11. There is no dispute that earlier to the date of taking possession of the flat, the Complainant had entered in to the construction agreement/Ex-A1 with the sale agreement both dtd.22.06.05 with the Opposite party. In Ex-A1/construction agreement the clause 5(c) reads as here under:

The second party hereby agrees that they are liable to pay to the first party interest at the rate of 7% p.a. on the amounts paid under this agreement and the agreement to sell for any delay in delivery of possession of the schedule “C’ apartment, not attributable to any of the reasons state above, even after the lapse of the grace time.

          12. It appears that the said clause 5(c) made the Complainant to file this complaint seeking the interest with compensation. Hence the other sub clauses of clause 5 has to be considered together, to know the rights and liabilities of the litigants.

13. In the referred clause 5(a) it is mentioned that every efforts would be made to deliver the flat within 01.07.08/01.10.08, but no responsibility would be accepted if the delays are by the statutory bodies, authorities regarding clearances, issuing the certificates etc.,

          14. The sale deed Ex-A2/B2 at clause 5.4 shows that the Complainants declared and confirmed that they have no claims against the builder in relation to their schedule apartment, whatsoever, confirming that builder has complied with all his obligations under the construction agreement/Ex-A1 and sale agreement to their satisfaction and thereby they fully and completely discharged the seller/builder from all his obligations under the said agreement. It is reiterated in the first para of page no.8 of the sale deed.  

          15. The rights of construction agreement, joint development agreement, sale agreement or memorandum of understanding etc., could be merged with the execution of the sale deed of the same property. The contents of the sale deed show that the Complainant given up all his rights to proceed against the Opposite party and thereby the allegations made by the Complainant do not survive for consideration.

16. In the legal notice/Ex-A3 served on Opposite party as per Ex-A4/postal acknowledgement at para no.4 shows the exchange of emails and replies in between the Complainant and the Opposite party regarding the postponing of the delivery of the flats. According to the Complainant on one or the other pretext the delivery of the flat was delayed. In the said para it is also mentioned that the Complainant inspite of the plethora of letters, the Opposite party was expressing his difficulties and financial loss suffered by him from time to time till it was handed over to the purchasers. The said para of the legal notice clearly show that that the Complainant has possessed such emails and replies but has not produced intentionally. The said correspondences, letters definitely could have become the documentary evidence relating to allegations and counter allegations.

          17. The clause 5(c) has referred the amount paid under the construction agreement and the agreement to sell for calculation of interest. In the sale deed Ex-A2/B2, how the payments were made by the Complainant is not mentioned. The sale deed Ex-A2/B2 shows that the Complainant is one of the purchasers and another purchaser is his wife Smt.Pushpa Sarda. Nowhere it is mentioned in the complaint that, it is filed on behalf of the joint purchaser also. Ex-A2/B2 show that the Chaitanya Properties pvt. ltd. is the seller and the Opposite party is mentioned as the builder to execute the sale deed in favour of the Complainant and his wife jointly. No reasons were offered by the Complainant for not impleading his wife and Chaitanya properties.

          18. The Complainant has not stated what was the amount paid by him and joint purchaser, so as to calculate the interest payable to him thereon. In Ex-A9/judgment copy C14 to C19 receipts and letters were referred to as the sale consideration amount paid in instalments and the said documents were not  produced in this complaint. The Opposite party had specifically mentioned about the importance of agreement to sell and clause no.14 of the same. The Complainant who possessed the agreement to sell has not explained why it was not produced.

          19. The Opposite party has also stated that the Complainant was fully aware of the reasons for delay in getting mandatory statutory clearances, permissions like issuance of sanction plan and environmental clearances which empowers them to extend the construction period under clause 5(a), 5(b) & 5(c). The Complainant ought to have mentioned about the clearances given by the statutory authorities to attribute the unreasonable delay on the part of the Opposite party. Non-production of the same is also not explained.

          20. The Opposite party has furnished Ex-B1 the copy of the notification issued by Ministry of Environment. Ex-B1 notification published in Central Gazette dtd.14.09.06 show that some restrictions are imposed on the builder which is the mandatory duty of obtaining prior environmental clearance about Shanthinikethan building. Such restrictions increased the duty/obligations of the Opposite party in continuation of the building construction work. Such difficulties arose subsequent to 2006 is established through Ex-B1 and it is not rebutted by the Complainant. The Complainant though aware about the subsequent portion of clause 5(a) regarding the delays by statutory authorities has not whispered anything about the attempts or failure of attempts by the Opposite party. Non-production of the correspondence letters, documentary evidence possessed by him, though had produced in the stage of earlier complaint definitely amounts to suppression of true facts. The Complainant who has made allegations in the complaint has not filed affidavit evidence in this case nor got marked the relied on documents through witness box, though he had produced 19 such documents in the case filed earlier. The said documents were returned to the Complainant on 06.03.17 by the Karawara consumer forum as shown at the end of Ex-A11/order sheet. Hence mere filing of the complaint without adducing the evidence before this forum makes his case unreliable.

          21. In the agreement there is mentioning of payment of interest at 7% on the paid amount. In the complaint he has prayed for 6% interest on the paid amount. The Complainant has not explained what made him to reduce 1% interest. In the result the Complainant has failed to establish the allegations made by him and accordingly the Consumer Dispute no.1 is answered in the negative.

          22. Consumer Dispute No.2: The Complainant has re-presented this complaint on 15.03.17. Earlier complaint was filed on 06.12.12. The Complainant has relied on clause 5(c) of construction agreement to demand the interest for delayed possession beyond the period of 01.10.08. The counting of delay starts according to him from 02.10.08. It appears that he has started counting interest since that date itself. Such being the case the complainant ought have been filed on or before 01.10.10 before Karawara consumer forum. According to him he had taken the possession of the flat on 14.08.10 and the counting of period of 2 years ends on 14.08.12. On both the counts the earlier complaint was filed after expiry of the limitation period. There is a reference in Ex-A9 judgment of Karawara consumer forum about the filing of condonation delay of application, wherein the delay is mentioned as 112 days because of his ill health to meet his advocate. The said grounds definitely will not extend the limitation period in the absence of cogent evidence placed by him. Hence the Consumer Dispute no.2 is answered in the affirmative.

          23. Consumer Dispute No.3: In view of finding of the Consumer Disputes No.1 & 2, the Complainant deserves to get the following:

ORDER

          The CC.No.397/2017 filed by the Complainant is hereby 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 08^th June of 2017).

Copies of Documents produced on behalf of Complainant/s:

Copies of Documents marked on behalf of Opposite party/s