Karnataka High Court
M/S Nandi Builder And Developer vs Mrs. Saraswathamma on 25 July, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF JULY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE T.M.NADAF
WRIT PETITION NO.27452 OF 2024 (GM-CON)
BETWEEN:
1 . M/S NANDI BUILDER AND DEVELOPER
NO.177/A, 22ND CROSS
7TH B MAIN, 3RD BOCK
JAYANAGAR
OPP. NMKRV COLLEGE
BANGALORE - 560 011
2 . MR. K S MURALI
S/O K M SATYANARAYANA SHETTY
AGED ABOUT 53 YEARS
PROPRIETOR
M/S NANDI BUILDER AND DEVELOPER
NO.177/A, 22ND CROSS
7TH B MAIN, 3RD BLOCK
JAYANAGAR
OPP NMKRV COLLEGE
BANGALORE - 560 011
... PETITIONERS
(BY SRI. RAJESH A, ADVOCATE)
AND
MRS. SARASWATHAMMA
W/O LATE A SURYA NARAYANASETTY
AGED ABOUT 84 YEARS
RESIDING AT NO.277,
WEST OF CHORD ROAD
2ND STAGE,12TH A CROSS,
MAHALAKSHMIPURAM
BANGALORE - 560 086
... RESPONDENT
(BY SRI. VARDHAMAN V GUNJAL, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO i) ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION TO QUASH
THE IMPUGNED ORDER DATED 27/05/2024 PASSED BY THE HON'BLE
NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION, NEW DELHI
VIDE ANNEXURE-A AND ALLOW THIS WRIT PETITION AND ALLOWING
THE FIRST APPEAL NO.95/2017 FILED BY THE PETITIONER BY SET ASIDE
THE FINAL ORDER PASSED ON 18/11/2016 IN COMPLAINT NO.214/2014
BY KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
BANGALORE AND; ii) GRANT SUCH OTHER RELIEF OR RELIEFS AS THIS
HON'BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.07.2025 AND COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, T.M. NADAF J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.G.PANDIT
AND
HON'BLE MR. JUSTICE T.M.NADAF
CAV ORDER
( PER: THE HON'BLE MR JUSTICE T.M.NADAF )
This writ petition under Article-226 of the Constitution of India
is by unsuccessful respondents / opponent parties calling in question
the order dated 27.05.2024 passed by the National Consumer
Disputes Redressal Commission, New Delhi (for short 'National
Commission') vide Annexure-A and the order dated 18.11.2016 in
Complaint No.214/2014 passed by the Karnataka State Consumer
Disputes Redressal Commission, Bengaluru (for short 'State
Commission') vide Annexure-D, whereby the National Commission
except modifying the payment of rent at Rs.10,000/- per month, for
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each apartment from 09.04.2014 to 17.02.2017 and at the rate of
Rs.20,000/- per month per apartment from 18.02.2017 till handing
over the possession of the same, after due rectification, of the said
deficiencies, and in all other respondents confirmed the order
passed by the State Commission.
2. A brief outline of facts leading to filing of the present
petition are as under:
Under a Joint Development Agreement dated 09.05.2012 (for
short 'JDA') executed between the respondent herein and the
petitioners, the petitioners have agreed to construct a multi-storied
residential apartment offering respondent 50% of total super built-
up area, along with proportionate car parking area, common area,
terrace area, garden space and 50% of the benefits accrued from
the project.
3. Under the said agreement, it was agreed that in
exchange of 50% of benefits stated supra, the respondent has
agreed to transfer, 50% undivided property share, right, title and
interest. In furtherance of the JDA, the respondent executed a
General Power of Attorney (for short 'GPA') in favour of petitioner
No.1, in turn the petitioners have executed a sharing agreement in
favour of the respondent entitling her to specific flats and car
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parking areas. As there was default committed by the petitioners,
the respondent approached the State Commission by filing a
complaint being No.214/2014, seeking directions against the
petitioners to handover 50% of super built-up area, car parking
area, garden area and terrace as per JDA supra and rent at
Rs.20,000/- per month for each apartment, damages and costs as
well.
4. In response to the notice issued, the petitioners
appeared and filed their statement of objections contending that the
respondent is not a consumer as defined under Section-2(d)(ii) of
the Consumer Protection Act, 1986 (for short 'Act of 1986'). The
JDA has been executed in furtherance of MOU dated 14.03.2012, in
the said MOU, there is a clause for referring the matter to
arbitration. Further contended that they have agreed to hand over
50% of super built-up area, however, the delay caused is due to the
respondent not producing original documents for obtaining sanction
plans and licenses, as well as force majeure such as, lorry strike and
other related situations, in ongoing project. Despite the problems
faced by the petitioners, they have completed the construction.
However, on repeated requests, the respondent has not come
forward to take possession of the property. They further denied the
assessment of rent at 20,000/- per month for each flat.
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5. So far as the sharing agreement is concerned, the
petitioners stated that they have acknowledged their obligation to
handover the specific flats and car parking spaces, but asserted that
the share of the respondent was ready for delivery of possession,
but there is a failure on the part of the respondent to take delivery
of possession. They have contended that there is no cause of action
for filing the complaint.
6. The State Commission, considering the pleadings as well
as evidence both oral and documentary, proceeded to allow the
complaint in part by its order dated 18.11.2016, with the following
directions:
"ORDER"
The Complaint is hereby allowed with cost of Rs.25,000/-
The OPs are hereby directed to complete the project by
rectifying the lapses that are narrated in the
Commissioner Report and to handover 50% of the super
built up area as agreed in the Joint Development
Agreement along with 50% of car parking area, 50% of
garden area and 50% in terrace as described in the
schedule.
The complainant is entitled to recover rent at the rate of
Rs.15,000/- per month for each apartment from
09.04.2014, till the date of handing over of the possession
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of the same by rectifying the mistakes that are pointed
out in the Commissioner Report.
The OPs are directed to comply with the order within a
period of three months from the date of receipt of the
order."
7. Aggrieved by the order passed by the State Commission,
both the petitioner, as well as respondent preferred separate
appeals being F.A.No.95/2017 and F.A.No.2031/2018. The
petitioners in appeal F.A.No.95/2017 sought to set-aside the order
passed by the State Commission, whereas the respondent in
F.A.No.2031/2018 sought for a direction to pay a sum of
Rs.40,00,000/- along with interest @ 18% per annum from the date
of filing of the complaint, till the date of actual payment, which is
balance goodwill amount payable to the respondent as per clause-2
of MOU dated 14.03.2012, so also for enhancement of rental
amount awarded by the State Commission from Rs.15,000/- to one
lakh.
8. By a common order, the National Commission disposed
of both the appeals, partly modifying the rate fixed towards rent by
the State Commission. This petition is filed only against the appeal
filed by the petitioners before the National Commission. The
petitioners before the National Commission have again contended
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that the respondent is not a consumer, within the definition
provided under the Act of 1986 and there is an arbitral clause
provided in the MOU dated 14.03.2012, and contended that the
State Commission has failed to consider the same and sought to
allow the appeal.
9. So far as the delay in construction is concerned, they
have urged the very same grounds, as they have urged before the
State Commission. The respondent herein contended before the
National Commission that the petitioners owe the respondent a sum
of Rs.29,52,434/- as on the date of delivery of possession of four
flats on 26.06.2018. Further, after the said order, the petitioners-
builders made a partial payment of Rs.1,00,000/- by way of Cheque
bearing No.76951, dated 26.11.2079 and Rs.2,00,000/- by Cheque
No.07967 dated 29.12.2017 and also deposited a sum of
Rs.7,20,000/- before the State Commission in Execution No. 30 of
2017 and sought to dismiss the appeal.
10. The National Commission, in view of the law laid down by
the Hon'ble Apex Court in the case of M/S. IMPERIA
STRUCTURES LIMITED Vs. ANIL PATNI AND ANOTHER1 held
that the remedies under the Act of 1986 are in addition to the
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(2020) 10 SCC 787, dated 02.11.2020
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remedies available under the Special Statutes. So also, stating
Section-3 of the Act of 1986 which provides that the provisions of
this Act shall be in addition to and not in derogation of any other
law for the time being enforced. Further, referring to the order of
the Commission in AFTAB SINGH vs. EMAAR MGF LAND
LIMITED AND ANOTHER in Consumer Case No.701 of 2015,
vide Order dated 13.07.2007 (which was upheld by the Hon'ble
Apex Court) held that the 'Arbitration clause in the buyer's
agreement does not bar the jurisdiction of the Consumer Fora.
Accordingly, rejected the contention of the petitioners that the
complaint is not maintainable in view of the arbitration clause.
11. So far as the argument on delay, the National
Commission referring to its order in SIVARAMA SARMA
JONNALAGADDA AND ANOTHER Vs. M/S. MARUTHI
CORPORATION LIMITED & ANOTHER, decided on 21.09.2021,
held that the ground of force majeure is not available to deny the
delivery of possession and amounts to deficiency of service and
unfair trade practice. So far as the contention that, the respondent
is not a consumer, the National Commission relying on the
judgment of Hon'ble Apex Court in the case of BUNGA DANIEL
BABU Vs. M/S. SRI, VASUDEVA CONSTRUCTIONS AND
OTHERS in Civil Appeal No.944 of 2016 decided on 22.07.2016 held
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that a person who is a party to a MOU for construction and JDA
comes within the purview of definition of 'consumer' and they can
invoke the provisions under Act of 1986. The National Commission
after considering the entire case materials held that there is a
deficiency on the part of the petitioners. However, taking into
consideration the fact that there is no document produced on record
to establish the rates of rent in the area, proceeded to pass the
order confirming the judgment of the State Commission by its order
dated 27.05.2024, except with some minor modification towards
rent, which we reproduce as follows:
"ORDER
I. The Opposite Parties are directed to complete the
project after duly rectifying all deficiencies listed in the
Court Commissioner Report and to handover the
Complainant 50% of the super built up area as per the
Joint Development Agreement along with 50% of car
parking area, 50% of garden area and 50% in terrace as
described in the schedule, within a period of two months
from the date of this order, unless already handed over.
II. The Opposite Parties are directed to pay Complainant.
compensation in the form of rent @ of Rs.10,000/- per
month per each apartment from 09.04.2014 to
17.02.2017. Further rent @ Rs.20,000 per month per
apartment from 18.02.2017 till the date of handing over of
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the possession of the same, after due rectification of the
said deficiencies.
III. In the event of the apartments not being handed over
till date, the OPs are directed to handover the possession
of the property as per (1) above within a period of two
months from the date of this order and the rent liability
from the date of this order shall be @ Rs.50,000 per
apartment per month till the date of handing over.
IV. The OPs are also liable to pay the Complaint Rs.50,000
as costs."
12. Calling in question both the orders passed by the State
Commission as well as the National Commission, the petitioners
have filed the present petition.
13. Heard Sri.Rajesh.A, learned counsel for the petitioners
and Sri.Vardhaman V. Gunjal, learned counsel for the respondent.
14. Sri.Rajesh, taking us through the papers produced in the
writ petition, has submitted that as per clause-21 of the JDA, both
the State Commission and National Commission, has no jurisdiction
to entertain the complaint, as there is a remedy provided by way of
specific performance of contract and so far as the claim of recovery
of money for the losses and damages caused, the respondent has to
approach Competent Civil Court by paying necessary court fee to
the same. He has further submitted that the National Commission
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having observed on the Court Commissioner's Report that the flats
are by and large complete when the Commissioner visited the spot
and only minor aspects listed therein were pending, erred in holding
that there is deficiency of service and directed the petitioners to pay
the rent at a reduced rate. He submits that both the State
Commission, as well as the National Commission failed to consider
that as per the commissioner report, the flats are ready for delivery
of possession, but with certain minor aspects which requires the
permission of respondent to make good. However, it is the
respondent who is not coming forward to take the delivery of
possession and sought to allow the petition setting-aside the orders
impugned and dismiss the complaint.
15. Sri.Gunjal with all vehemence contended that the
petitioners made the respondent, an octogenarian, to run around
pillar to post to seek for her rightful claim under the JDA. As per the
JDA, The petitioners ought to have completed the construction by
October'2013, with another 6 months as grace period, i.e., on or
before 09.04.2014. However, till date they have not handed over
the possession. For the past 11 years, the respondent who has
seen 74 summers as on the date of filing of the complaint, was
made to run around commission after commission to get her rightful
claim, now she is aged 85, an octogenarian, with all age-related
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infirmities. Both State Commission as well as National Commission,
after considering the materials on record, have come to a irresistible
conclusion that there is a deficiency of service in handing over 50%
of super-built up area as per the JDA, along with 50% car parking
area, 50% garden area and 50% of terrace as prescribed in the
schedule. Both the Commissions are in concurrence so far as delay
in handing over possession of the property, rightly directed the
petitioners to pay rent in respect of each apartment from
09.04.2014 till the date of handing over possession. There are no
infirmities in the orders passed by both the commission and
accordingly sought to dismiss the petition.
16. Having heard the learned counsel for the parties and
perused the entire writ petition papers, the only point that would
arise for our consideration is:
"Whether both the petitioners have made out a case,
which calls for interference of the orders impugned at
the hands of this Court?
17. Our answer to the above point is in 'negative' for the
following reasons:
The admitted facts are that there is a JDA and earlier to that
there is a MOU, where under the petitioners have agreed to
construct a multi-storied apartment by October'2013, with a grace
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period of 6 months, thus on or before 09.04.2014, to complete the
project and hand over 50% of share i.e., 4 flats to the complainant
along with other emoluments stated supra. As per the orders passed
by both the Commissions, there is no delivery of possession of the
flats. The contention of the petitioner is that the Commission lacks
jurisdiction on the ground that there is a clause for specific
performance of contract, is to be rejected, in terms of the law laid
down by the Hon'ble Apex Court in the case of IMPERIA
STRUCTURES supra wherein the Hon'ble Apex Court has held that
the remedies under the Act of 1986 were in addition to the remedies
available under the Special Statutes. That apart, Section-3 of the
Act of 1986 clearly envisages that the provisions of this Act shall be
in addition to and not in derogation of any other law for the time
being in force.
18. In that view of the matter, the contentions of the learned
counsel for the petitioners that there is a clause for specific
performance and so also for recovery of amount, the respondent
has to approach the appropriate forum, by paying appropriate court
fee have no legs to stand and accordingly rejected.
19. In view of the concurrent findings recorded by both the
Commissions, so far as the deficiency is concerned, the judicial
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review by this Court under Article-226 of the Constitution of India is
very limited. We find that both the Commissions have properly
adjudicated the lis between the parties relying on the judgments of
the Hon'ble Apex Court, stated supra, holding that there is a
deficiency of service and negatived the contentions of the
petitioners regarding force majeure etc. We find no infirmities in the
order passed by both the Commissions.
20. The petitioners despite under JDA to construct the
building by October'2013 with a grace period of 6 months ought to
have completed the constructions by 09.04.2014 and delivered 50%
of the Super-Built-up area along with other emoluments. However,
as could be gathered from the records, the petitioners instead of
handing over the possession started alienating the properties in
favour of others. Though a contention has been taken that they
have alienated the properties which fallen to their share, clearly
shows that the petitioners with a deliberate intention to harass a
lady, a widow an octogenarian, made her run around commission
after commission and now before this Court, for her rightful claim,
amounts to abusive of process of law. The petitioners ought to have
honored their commitment when they have taken property way back
in the year 2012 or atleast in 2014. But the stage is same despite
13 years have passed. In these circumstances, we feel that the
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petition should be dismissed with exemplary cost which shall not be
less than Rs.1,00,000/- (Rupees One Lakh Only). Accordingly, we
proceed to pass the following:
ORDER
i) Petition fails and stands dismissed with cost of Rs.1,00,000/-
(Rupees One Lakh Only) payable to the respondent within a period of four weeks from the date of this order.
ii) If the cost is not paid within the period, the Registry is directed to issue a Certificate as arrears of land revenue, recover the cost within four weeks and release the same in favour of respondent on proper identification.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(T.M.NADAF) JUDGE JJ CT: BRS