State Consumer Disputes Redressal Commission
Sandeep Kumar Srivastav vs M/S Unishire Projects P Ltd on 17 February, 2022
1 CC-No.122/2016
Date of Filing :04.05.2016
Date of Disposal :17.02.2022
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 17th DAY OF FEBRUARY-2022
PRESENT
HON'BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
MrsM.DIVYASHREE : LADY MEMBER
CC-NO.122/2016
1. Mr. Sandeep Kumar Srivastav,
Aged about 33 years,
S/o Jagadish Lal Srivastav.
2. Mrs. Charuni Verma,
Aged about 31 years,
W/o Sandeep Kumar Srivastav.
Presently at M/s Sandeep Cadence
Design Systems India Pvt. Ltd.,
2nd Floor, Block 3B, RMZ Eco Space,
Sarajapur, Marathahalli Ring Road,
Bellandur, Bangalore-103.
..Complainants
(By Sri/Smt.Imran Pasha, Advocate)
1. M/s Unishire Projects Pvt. Ltd.,
A Company incorporated under
The Indian Companies Act, 1956,
Having its office presently at No.36,
Railway Parallel Road, Nehru Nagar,
Next to Reddy Petrol Bunk Kumara
Park (West), Bangalore-560 020.
Rep/by its Director Mr.Kirti.K.Mehta.
2 CC-No.122/2016
2a) Mr. I.V.Girish S/o Late T.Venkatachalaiah,
No.533, 8th Main, 3rd Cross,
Bharath Housing Society,
Uttarahalli, Bangalore-65.
b) Mrs. B.G.Mala, W/o T.D.Manjunath
No.584, Nageshwara Nagenahalli,
Kothanur Post, Bangalore-77.
c) Mrs. M.N.Meera W/o B.R.Srinivas,
No.36, 3rd Cross, Vinayaka Layout,
Bhoopasandra, Sanjayanagar,
Bangalore-36.
d) Mrs. Meenakshi.M.P W/o I.V.Lakshmikanthaiah,
No.533, 8th Main, 3rd Cross,
Bharath Housing Society,
Uttarahalli, Bangalore-65.
..Opposite Parties
(OPs By Sri/Smt. G.S.Venkat Subbarao, Advocate)
ORDER
HON'BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT
1. This is a complaint filed by the complainant under section 17 of Consumer Protection Act, 1986, with a request to direct OPs to restore the Flat viz., Duplex Flat bearing No.D-62 at 6th Floor of Block-D having a super built up area of 1711 sq. ft (as shown in the brochure) and deliver possession of the same to the complainant by executing a registered sale-deed along with Opposite party.No.2 in favour of complainants or in the alternate direct Opposite party.No.1 to refund the entire sum of 3 CC-No.122/2016 Rs.59,41,109/- together with interest @ 18% p.a from the date of booking of the flat till repayment, apart from seeking other reliefs.
2. Brief facts are: Opposite Party No.1 is a private limited company in the field of developing and promoting buildings/apartments/ villas etc., entered into a Joint Development Agreement with the land owners viz., O.P.No.2. On an publicity given by O.P.No.1 with regard to launching of their new project by name "UNISHIRE PANAMERA", in the land of O.P.No.2. The complainant with an intention to purchase a Duplex Flat Bearing No.D-62 at 6th floor of Block-D having a super built up area of 1711 sq. ft together consisting of a hall, dining room, kitchen, utility room, two balconies and three bed rooms which includes one master bedroom with an attached bathroom and one car parking at basement and with proportionate undivided share of 614 sq.ft in the land area, for total cost of Rs.62,53,797/-, entered into Memorandum of Sale Agreement dated 12.06.2012 by paying a sum of Rs.6,42,490/-. It is alleged by the complainants that, they have totally paid a sum of Rs.59,41,109/- to O.P.No.1 out of which a sum of 4 CC-No.122/2016 Rs.48,81,303/- through financial assistance of Axis Bank and Rs.12,32,071/- out of their savings. The grievances of the complainants is that, though there was specification at Clause- 13(C)-not to carry out any modification, additions, changes and or alteration can be carried out in the flat and or the apartment building, if the same affects structural design/plumbing design/elevation and further, if such modifications, additions, changes and or alteration is not permitted under the BDA/BBMP Rules and Regulations, despite the said fact and covenants under the agreement and without the consent of the complainants, the O.P.No.1 has in an illegal and arbitrary manner, carried out major changes not only within the flat agreed to be purchased by the complainants, but also the front elevation of the building. Another allegation of the complainant is that, O.P.No.1 has violated the terms of agreement with regard to handing over of the Flat with all amenities, facilities etc., within 24 months with 6 months grace period. Hence, alleged deficiency in service against Ops.
3. Ops.No.1 and 2a to 2d appeared through counsel and filed their separate versions.
5 CC-No.122/2016
4. OP.No.1 in its version contended that, as per recitals of the agreement, the period for completion as contemplated under the Memorandum of Sale Agreement dated 12.06.2012 would commence from the time of obtaining the commencement certificate from the concerned authorities and from thereafter the period specified for completion of the project is 24 months with a grace period of 6 months. It is also contended by O.P.No.1 that, the request under the memorandum of agreement of sale regarding structural design/plumbing design/elevation and any modifications is not absolute and as such the builder is always permitted to make changes for the better outcome of the project and to achieve a better FAR. O.P.No.1 further contended that, when the construction is complete in all respects, the complainants have no reason whatsoever to cancel the contract, however, if at all the complainants intend to cancel the contract and seek refund, consequences as contemplated under the Memorandum of Agreement of sale dated 12.06.2012 would follow which would entitle the O.P to deduct the amount paid. Hence, alleged no deficiency in service on its part.
6 CC-No.122/2016
5. O.P.No.2a to 2d in their version contended that, in the Joint Development Agreement, it is specifically agreed between the parties to the Joint Development Agreement that O.P.No.1 has to develop the land measuring to an total extent of 21780 sq. ft and after development of the said land, the O.P.No.1 developer agreed to construct and handover 39% of constructed area in favour of O.P.No.2a to 2d-land owners and the O.P.No.1 will be the absolute owner for remaining 61% of developed area. It is contended by these Ops that, according to registered sharing agreement, the flat booked by these complainants is allotted to the share of O.P.No.1 herein and the same can be seen from the registered memorandum of supplemental agreement, which was duly registered in the office of the Sub-Registrar, Banasawadi, Bangalore. It is further contended by these Ops that, not even a single rupee out of total sale consideration of Rs.62,53,797/- have been received by them and the said amount has been received only by O.P.No.1-developer out of his allotted share and these Ops are nothing to do with any agreement of sale nor any sale transactions with the complainants, as these Ops have not signed the said memorandum of sale agreement and further since the memorandum of sale agreement does not find the 7 CC-No.122/2016 signature of these Ops and the said agreement entered in between complainants and O.P.No.1 and same is not binding on these Ops. Hence, submit no deficiency of service on their part and the complaint deserves to be dismissed.
6. Commission heard learned counsels on record. We perused the documents filed by both parties and now to examine whether there is deficiency in service on the part of Ops as alleged by complainant and if so, for what reliefs complainant is entitled to?
7. In the present complaint, there is no dispute between the parties regarding execution of Memorandum of sale agreement between complainants and O.P.No.1. It is also an undisputed fact that, complainant had paid a sum of Rs. Rs.59,41,109/- to O.P.No.1 out of total sale consideration amount of Rs.62,53,797/-. The main allegations of the complainants are that, without the consent of the complainants, the O.P.No.1 has in an illegal and arbitrary manner, carried out major changes not only within the flat agreed to be purchased by the complainants, but also the front elevation of the building, thereby violated the terms of agreement with regard to handing 8 CC-No.122/2016 over of the Flat with all amenities, facilities etc., within 24 months with 6 months grace period. Hence, alleged deficiency in service against Ops. In this regard, burden of proof lies with O.P.No.1 to establish with cogent and acceptable evidence that, there was no major changes either within the flat agreed to be sell to the complainants, nor in the front elevation of the building and he has not violated any terms of agreement with regard to handing over of the Flat with all amenities, facilities etc., within 24 months with 6 months grace period, as per Memorandum of sale agreement.
8. Mere contending by O.P.No.1 that, the construction is made as per the drawings of the Architecture, is not a ground to believe his version, that too, without there being any materials on record to establish that, there was no major changes in the said construction. It is worth to mention here the e-mail conversation between complainants and O.P.No.1. In the e-mail dated 04.02.2015, wherein could see complainants complaining regarding changes in the actual plan made by UNISHIRE by listing the issues in respect of their Flat D-62. Through e-mail dated 05.03.2015, O.P.No.1 responds to complainants by offering certain solutions therein and the last solution offered by 9 CC-No.122/2016 O.P.No.1 to complainants is to sell the apartment and suggested complainants to identify prospective/interest parties and they will also try to help complainant to sell the apartment. From these conversations, it is clear that, there were certain changes in the apartment of the complainants and the complainants were not intend to take possession of the said apartment. When such being the situation, we are of the view that, O.P.No.1 has utterly failed to establish that, the construction is as per the Memorandum of sale agreement, thereby committed deficiency in service towards complainants.
9. Let us discuss regarding claim made by the complainants. The complainants prayed either to restore the Flat viz., Duplex Flat bearing No.D-62 at 6th Floor of Block-D having a super built up area of 1711 sq. ft (as shown in the brochure) and deliver possession of the same to the complainants by executing a registered sale-deed along with Opposite party.No.2 in favour of complainants or in the alternate direct Opposite party.No.1 to refund the entire sum of Rs.59,41,109/- together with interest @ 18% p.a from the date of booking of the flat till repayment, apart from seeking other reliefs. O.P.No.2a to 2d contended 10 CC-No.122/2016 that, according to registered sharing agreement, the flat booked by these complainants is allotted to the share of O.P.No.1 herein and the same can be seen from the registered memorandum of supplemental agreement, which was duly registered in the office of the Sub-Registrar, Banasawadi, Bangalore and these Ops did not receive a single rupee out of total sale consideration of Rs.62,53,797/- and the said amount has been received only by O.P.No.1-developer out of his allotted share and these Ops are nothing to do with any agreement of sale nor any sale transactions with the complainants, which is not at all denied either by the complainants or O.P.No.1. It is important note here that, when this Commission held O.P.No.1 failed to prove with cogent and acceptable evidence that, there was no major changes either within the flat agreed to be sell to the complainants, nor in the front elevation of the building and he has not violated any terms of agreement as stated supra, O.P.No.1 has no right to contend that, if at all the complainants are not interest in acquiring the apartment, the consequences as mentioned in the Memorandum of Agreement of Sale dated 12.06.2012 would follow. Further, we do not find any 11 CC-No.122/2016 negligence or deficiency in service on the part of the OP.No.2a to 2d.
10. With the above such conclusion, we proceed to allow CC-No.122/2016 and direct O.P.No.1 to refund a sum of Rs.59,41,109/- to the complainants together with interest @ 18% p.a from the respective dates of receipt of such amount till repayment within 3 months from the date of receipt of this order, failing which the interest will be enhanced @ 21% p.a.
11. Complaint against O.P.No.2a to 2d stands dismissed.
12. Furnish Free Copy of the Order to the parties.
Lady Member Judicial Member President *J*