State Consumer Disputes Redressal Commission
Annapurna Mamadapur vs Sovereign Developers & Infrastructure ... on 31 July, 2023
1
CC.Nos.161,176,177,181,183,192,202,215,220,223,245,
258,267,276,281,287,289,309 of 2015
Date of filing : 24.07.2015
Date of Disposal:31.07.2023
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATE: 31.07.2023
PRESENT
HON'BLE Mr. JUSTICE HULUVADI G. RAMESH: PRESIDENT
Mr. KRISHNAMURTHY B. SANGANNANAVAR: JUDICIAL MEMBER
Mrs. DIVYASHREE M: LADY MEMBER CC/161, 176, 177, 181, 183, 192, 202, 215, 220, 223, 245, 258, 267, 276, 281, 287, 289, 309/2015 COMPLAINT No.161/2015
1. Mr. Hazly Ponnudurai Thambiraj S/o Mr.P.Thambiraj Aged about 38 years,
2. Mrs. Sheebarani Devakiruba. H, W/o Mr. Hazly Ponnudurai Thambiraj Aged about 35 years, Both R/at No.222, Father Ullasapa Road, St. Thomas Town, Near Old Banaswadi Police Station, Kammanahalli, Bangalore - 560084.
2CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 COMPLAINT No.176/2015
1. Mr.Kamala Nayan, S/o Mr. Sarju Pathak, Aged about 30 years, R/at No.21,3rd Cross, Errapa Reddy Layout, Banaswadi Main Road, Bangalore-560043 COMPLAINT No.177/2015
1. Mr.Robbie Joseph Thekenchery.
S/o Mr.T.T.Joseph, Aged about 34 years.
2. Mrs. Nikihil Rockey, W/o. Mr. Robbie Joseph Thekenchery, Both are R/a No.C2-1006 Alpine Eco Appt. Sy No.13, Doddanekundi Village, K.R. Puram Hobli, Bangalore-37.
COMPLAINT No.181/20151. Mr.Rakesh J. Parmer.
S/o Mr. Jayantibhai Parmar, Aged about 35 years.
2. Mrs.Anitha R.Parmer, 3 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 W/o Mr.Rakesh J Parmar, Aged 29 years Both are R/at No.1/2, Patel colony, Bharucha Road, Near Bhatladevi Temple, Dahisar(east) Maharastra, Mumbai-400068.
COMPLAINT No.183/20151. Mr. Z Abbas Ali, S/o Late A Zeinuladeen, Aged about 43 years, R/at No. 45, Indra Prastha Apts., Flat No.F4, Block 1, OMBR Layout, 5th Main, Bangalore - 560043.
COMPLAINT No.192/20151. Mr.Suvadeep Dutta.
S/o Mr.Syamal Dutta, R/a Flat No.201, Vishwan Residency, 14th Cross, 3RD Main, Hoyasala Nagar, Ramamurthynagar, Bangalore-560016.
4CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 COMPLAINT No.202/2015
1. Mr. Sam K. Mathew S/o Mr. Samuel, Aged about 42 years, C/o Mr Robbie Joseph Thekenchery, R/at No.C2-1006, Alpine Eco Appt, Sy.No.13, Doddanekundi Village, K.R. Puram, Hobli, Bangalore-560037.
COMPLAINT No.223/20151. Mrs. Vrushalee Binoy, W/o Mr. Binoy V.K, Aged about 30 years,
2. Mr. Binoy V.K, S/o Mr. T. Mohanan, Aged about 33 years, Both R/at No.38, Sai Krupa, NR Layout, 2nd Main, FCI Gowodn Road, Vijanapura, Bangalore-560016.
5CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 COMPLAINT No.220/2015
1. Mr. Kadarpa Bijoy Bhattacharjee.
S/o Late Sri. Kiran Chandra Bhattacharjee Aged about 57 years R/at C/17/15, Defence Accounts Deptt Residential Accomodation Smeswarpura Extension Ulsoor, Bangalore- 560042 COMPLAINT No.245/2015
1. Ujjal Baruah S/o Jayanta Kumar Baruah, Aged about 32 years Rep by his GPA Holder Mrs.Ainu Baruah Phukan D/o Jayanta Kr. Baruah, Aged about 36 years, R/at No. 18, 11th Cross, BDS Nagar, K Narayanpura, Kothnur Post Bangalore - 560077.
COMPLAINT No.276/20151. Mr.Hemanth Ghogre, S/o Mr.Rangnath Ghogre, Aged about 36 years, 6 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015
2. Mrs .Sheetal Ghogre, W/o Mr.Hemanth Ghorge, Aged about 36 years, Both R/at No.81,1st Floor, Navyashree Nilayam,Konene Agarhara, HAL post,Near Veenu Gopal Swamy Temple, Bangalore-560017 COMPLAINT No.281/2015
1. Ms.Annapurna Mamadapur W/o Mr.Shivashankar Mamdapur, Aged about 47 years, R/at No.84 ,Shanti Nagar Tilakawadi, Bangalore-560000 COMPLAINT No.287/2015
1. Mr.Bibekanand Jha, S/o Mr.Gauri Shankar Jha, Aged about 33 years,
2. Mrs.Seena Pathak, W/o Mr.Bibekanand Jha, Aged about 30years, 7 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 Both R/ at No.14 ,3rd Floor, S.V.G Nagar ,3rd A Cross, Moodapalya Circle Nagarbhavi Main Road Bangalore-560072 COMPLAINT No.289/2015
1. Mr.Puneet Deshpande S/o Ragavendara G Deshpande, Aged about 35 years, Residing at No.312,2nd Floor, 19th 'E' Main ,N-Block, 1st Block,Rajajinagar, Bangalore-560010 COMPLAINT No.267/2015
1. Mr.Rajni Kant Thakur, S/o Mr.Awani Kanth Thakur, Aged about 34 years, R/at No.21,3rd Cross, Errapa Reddy Layout Banaswadi Main Road, Bangalore-560043 8 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 COMPLAINT No.309/2015
1. Mr.Vinayak V haval, S/o Mr.Vithal Haval, Aged about 34 years R/at No.37,Sri Ganesh Krupa BLDG, Shanti Layout,1st Cross, Kanaka Vinayaka Temple road, Near Mixture Factory, Ramamurthy Nagar, Bangalore-560016 COMPLAINT No.258/2015
1. Pramod Kumar Mohapatra S/o Sridhar Mohapatra aged about 36 years
2. Mrs Ranjitha Mahapatra W/o Pramod Kumar Mohapatra Both R/a No.11, C3,Krishna Nagar Apartment ,Annasandrapalya Bangalore-560017 COMPLAINT No.215/2015
1. Mr.Bikram Bhola, S/o Mr.BrAJABANDHU Bhola Aged about 33 years 9 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 Residing at Torasingh Panchugaon,Khurda, Orissa-752035 ....Complainant/s (By Shri. K.N. Rakshith, Advocate for the Complainant)
-Versus-
Soverign Developers & Infrastructure Ltd., A Company incorporated under the Companies Act of 1956 .having its Registered Office at No.16 ,2nd & 3rd Floor, New BEL Road,Jaladharshini Layout, Bangalore-560054 Represented by its Authorised Officer.
....Opposite Party/s //ORDER// BY Mrs. M. DIVYASHREE : LADY MEMBER All these complaints filed under section 17 (1) of the Consumer Protection Act 1986. As in all these matters as the relief clamed is one and the same against the op who is one and the same. Further grounds urged in the complaint as well as in the version are also similar, all the said complaints are taken up together for consideration.
10CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015
02. At the outset it is to be noted that the complainants had filed their respective complaint's initially on the file of I Additional District Consumer Disputes Redressal Forum, Bangalore and the same was allowed vide common order dated 10.10.2014.
03. Aggrieved by the said order complainant's preferred respective Appeal before this Commission.
During the pendency of the Appeals as it was contended by the Respondent that the relief claimed by the complainants in each case exceeded pecuniary jurisdiction of the District Forum, the order passed by the District Forum was without jurisdiction and the same was unenforceable; to avoid multiplicity of the proceedings, both Appellant as well as Respondents conceded for registering the complaints before this Commission instead of remanding and re-filing the matter before the District Forum and accordingly registered the complaints before this Commission vide order dated 25.03.2015.
04. It is the case of the complainants in all these cases that they were offered a flat/apartment by the Op in Sovereign Unnathi project which was being built and developed jointly through joint development agreement with the land owners on the land bearing survey number 511 of Kalkere 11 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 Village,K.R.Puram Hobli, Bangalore South Taluk and the said land measuring 5 acres 16 guntas.
05. It is further alleged that the said land was converted for non-agricultural residential purpose by official memorandum issued by the Special Deputy Commissioner, Bangalore District vide dated 20.01.2010. The Op represented that they named the proiect as 'Sovereion Unnathi and it also included an adjoining Survey No 586 end the Bruhath Bangalore Mahanagara Palike had sanctioned the plan vide order dated 20.03.2010.
O6. It is further alleged that OP also issued brochures and literature advertising that they had fixed a sum of Rs.14,00,000/- as base price in the flat and that the price of the flats shall increase depending upon the floor in which flat shall be chosen and allotted.
07. It is the specific case of the complainants in all these cases that based on representation and assurances made by the OP, The complainants agreed to purchase the flat and accordingly, they paid requisite booking amounts. Subsequently, as in the draft agreement, there was a clause on escalation and the same was removed by the OP on a later date communicating same to the complainants.
08. It is further the case of the complainants in all these cases that as per the terms and conditions of the agreement, the 12 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 payments were released to the Op in time and inspite of such payment reaching Op within the time, Op failed to perform their part of continuing the construction activity and delivering the flats on or before fixed date and if Op failed to fulfill the promise as per the terms and conditions of the agreement, Op was supposed to pay Rs.5/- per sq. ft per month as compensation for delayed delivery.
09. It is further alleged by the complainants that due to some of the customers persistence and perseverance towards the delivery of the flat, Op issued letter to all the personnel who booked the flats including complainants stating that there are certain additional expenditure which needs to be borne by each of the complainant for providing certain benefits such as arranging for washing machine point and demanded a sum of Rs.35,000/- from all the customers and informed them that it was mandatory for them to pay the said amount and only if this condition is fulfilled the flats will be delivered. Inspite of turmoil and resentment by most of the customers, the complainants without any option agreed to pay the said sum of Rs.35,000/- and accordingly they paid the same.
10. Further it is alleged that the act of the Op after receiving almost entire sale consideration towards the cost of the apartment failing to adhere the terms of the agreement, 13 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 demanding additional amount to deliver the flats amounts to deficiency of service.
11. It is also further alleged by the complainants that because of non delivery of the apartment/flat in time they are forced to extend to stay in the rented house in addition to paying EMI's to the bank causing unnecessary financial burden and loss to them.
12. It is further alleged by the complainants that Op is demanding amount ranging from Rs.8,51,000/- onwards as additional escalated value etc., In the circumstances, the complainants have filed the present complaints seeking direction to the Op to complete the construction and deliver the possession of the respective flat in accordance with the terms and condition of the agreement and direct the Op to withdraw the letter dated 26.08.2013 demanding escalation charges.
Further direct the Op to pay compensation at Rs.5/ - per square feet per month for the delayed period of delivery as per the agreement and also to refund the additional amount of Rs.35,000/- collected from each of the complainant etc.,
13. In the statement of version which is common and similar in all the cases amongst other pleas it is pleaded that as per the agreement of sale the parties ought to have invoked the Arbitration Clause before invoking Consumer Protection Act; the 14 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 demand for escalation cost also cannot be brought under Consumer Protection Act etc.,
14. Reading the pleadings in conjunction with documents on record, It is an admitted fact that the complainants have invested their hard earned money with the opposite party and an agreement was entered into between the parties. It is an admitted fact that the agreement has a clause regarding arbitration. Hence it is contended by the opposite party that the matter is to be referred to the Arbitration u/s. 8 and Arbitration Reconciliation Act and this complaints has to be dismissed. This commission cannot refer the matter to Arbitration. In the case between Taneja Developers & Infrastructure Ltd. and another Vs. Asha Pathania reported in 2011 CTJ 691 (CP (SCDRC) which reads as thus:-
Even if there exists an arbitration clause in an agreement and a complaint is made by a consumer in relation to a deficiency in service, the existence of such a clause will not be a bar to the entertainment of complaint by the consumer disputes redressal agency constituted under the Consumer Protection Act. This in all force applicable to facts and circumstances of this case. Merely there is an arbitration clause in the agreement the complainant is not barred from agitating his right under the C.P. Act. Even otherwise Section 3 of the C.P. Act reads thus:15
CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 Sec 3. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law or contract for the time being in force. Hence, if there is deficiency in service or unfair trade practice and the complainant being a consumer he can use his rights and remedies before the Consumer Forum. He cannot be directed to approach any other Forum or this case referred to arbitration.
15. It is specifically pleaded that the Company was impacted by the shortage in cement and steel supplied at various stages of construction. Steel and Cement Industry using its dominant position had adopted unfair and restrictive trade practices; escalation in prices has gone up by during 2010-11 to the extent of 70%. Besides the project continues to be impacted by acute shortage of construction labour which has adversely affected the entire construction. Due to sudden exodus of skilled and unskilled labour in the recent past, the company faced lot of problems to augment the construction team back of the site. Apart from critical issues like supply of materials and man power, the project also suffered the delay due to heavy rain during the stage of excavation and foundation work and also due to lorry strike in Bangalore and the Crusher Owners Strike etc., 16 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015
16. Further it is enumerated in detail in the chart about the then prevailing rate in respect of construction material, labour costs, fuel costs and transportation costs etc.,
17. Further it is specifically pleaded that in order to avoid arbitrariness and to have an objective analysis and to ensure the demand to be fair, just and reasonable, the Op sought a report on the estimated cost of Sovereign Unnanthi project at Horamavu, Kalkere Main Road, Bangalore from a reputed construction analysis namely M/s.Civil-Aid Techno-clinic Private Limited and the said company made extensive study of all the relevant factors based on the cost index prevailing during 2010, 2011, and 2012 for completion of the structural works and other works and also based on the cost index of 2012-13 and submitted its report. The cost of each 2 BHK flat of 856 square feet will cost a minimum of Rs.23.3 lakhs and thus tried to justify the demand made towards escalated charges from each of the complainant and denied all other allegations made in the complaint Para-wise and pleaded that there is no deficiency in service and there is no cause of action for the complainants to file this complaint and thus sought dismissal of the complaint.
18. Thus after registration of these complaints before this Commission both complainants as well as Op filed their respective documents in each case. On behalf of complainants each of them have chosen to file their respective affidavit in lieu 17 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 of oral evidence and on behalf of Op one Mr.P.C. Roy Ghatak, Authorized signatory and Sr. General Manager (Marketing) of Op has chosen to file their respective affidavit in lieu of oral evidence in each case.
19. In each complaint the complainant had explained in detail the date of agreement, the flat which they booked and the promised date of delivery 30.11.2012, sale consideration amount etc., each of them have also stated about the escalation Charges ranging from Rs. 8,51,000/- onwards as additional escalated value etc., demanded by the op. For the sake of ready reference and convenience all the said details are excerpted in tabulated column as hereunder :-
Sl.No CC.No. Flat No & Floor Block No. Promised date of delivery 1 176/2015 B2-02-1 B2 30-11-2012 2 177/2015 B5-10-2 B5 30-11-2012 3 192/2015 D2-05-3 D2 30-11-2012 4 202/2015 B5-10-1 B5 30-11-2012 5 223/2015 B1-14-1 B1 30-11-2012 6 220/2015 B2-07-1 B2 30-11-2012 7 245/2015 C5-09-4 C5 30-11-2012 8 276/2015 B7-09-1 B7 30-11-2012 9 287/2015 C6-13-4 C6 30-11-2012 10 289/2015 B2-05-3 B2 30-11-2012 18 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 11 267/2015 B2-02-2 B2 30-11-2012 12 309/2015 D4-02-4 D4 30-11-2012 13 258/2015 C6-07-4 C6 30-11-2012 14 183/2015 D3-09-4 D3 30-11-2012 15 181/2015 B7-06-2 B7 30-11-2012 16 161/2015 A1-03-1 A1 30-11-2012 17 215/2015 - - 30-11-2012 18 281/2015 - - 30-11-2012
20. In all these cases the complainants have filed the documents inclusive of copy of the agreement of sale. On perusal of which, it is seen that the land owner as well as builder have together entered into such agreement of sale in favour of each of the complainant for valuable sale consideration. Further both the land owner as well as builder are represented by one and the same authorized signatory.
21. With regard to payment of sale consideration, it is clearly mentioned in Annexure-II that the said payment shall be paid depending upon the progress made stage wise as detailed therein.
22. The agreement stipulates that the construction will be completed on or before particular date in each case and builder is also entitled for grace period of additional 6 months. Further 19 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 in case of delay in delivery of the completed apartment within the time stipulated above inspite of purchaser/s compliance with the terms of the agreement, builder has to pay the purchaser's in some cases at Rs.2/- per sq. ft per month and in some cases at Rs.5/- per sq. ft per month by way of damages for the delay in delivering the possession of the completed apartments from the date of default till sale. However considering the fact that in majority of cases the agreed rate per sq. ft per month is Rs.5/-, only two or 3 cases the agreed rate in the agreement stipulates Rs.2/- per sq. ft per month as damages it is appropriate that considering the loss to which the Op's are exposed, to hold that even in those cases also Op is liable to pay damages at Rs.5/- per sq. ft per month. Further the clause also includes that such payment is subject to prompt payment of sale consideration by the complainants in as much as it states that even if there is a single breach of this agreement including delayed payments by the purchaser / s or in case of delay caused due to force majeure or due to act of the statutory body or due to acts of purchaser/s or a third party.
Further though Annexure-II to the Schedule it is mentioned that the same pertains to details of payment of sale consideration and the said columns are left blank. However, it is seen that the payments are supposed to be made depending upon the progress in construction stage wise.
20CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015
23. It is not the case of the Op in any of these cases that there is any delay in making the payment of sale consideration by the complainant/s. In other words, in all the cases the complainants have fulfilled their obligation of making payment as and when demanded by the Op. In fact, in most of the cases, the complainant availed bank loan and bank has disbursed the amount in time to the Op.
24. It is the specific case of the complainants in all these cases that there is a clause under the agreement itself that Op shall not demand any escalation charges.
25. Admittedly in all these cases Op failed to fulfill; their obligation of completing the construction of the apartment well within the stipulated time. The reason put forth by the Op that the delay in construction as stated in the version itself is on account of force majeure, but, none of the reasons as stated by the Op under the head 'force majeure' is proved by the Op by adducing evidence. It is pleaded by the Op that due to shortage of cement and steel supply at various stages of construction; acute shortage of construction labour; there was sudden exodus of skilled and unskilled labour; due to heavy rain and lorry strike etc., the delay has occurred, but as stated herein, except making such bald statement the same is not explained as to what was the relevant period such things occurred, and the said causes are not substantiated by adducing any evidence. Hence, 21 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 such bald defense cannot be accepted and Op has no reason to justify the delay caused.
26. The complainants apart from filing the sale agreement, they have also filed various correspondences between them. In that regard Op assigned the reason why he had demanded the escalation charges in each case starting from Rs.8,51,000/- and onwards.
27. In the affidavit filed by one of the complainant in complaint No. 190/2015 it is specifically stated that Op has mentioned in Page No.6 of the agreement to sell that property is free from all encumbrance, inspite of having full knowledge about the project loan availed from M/s. Karnataka Bank Limited, Koramangala Branch, Bangalore by mortgaging the schedule property and the false disclosure of the encumbrance on the scheduled property by the Op is also in direct violation to the provision of Section 3 (2) (b) of Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 which deals with liabilities of Promoter and the same reads as hereunder:
"promoter makes full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land".22
CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015
28. On perusal of the Page 6 of the agreement to sell executed between the Ops and one of the complainant, the particular clause reads as hereunder:
"Whereas on this assurance of the Seller, that property is free from charges, mortgage or any claim from any person or interest of any person the Builder has entered the above said Joint Development Agreement with the Seller keeping with the interest of the prospective purchasers"
29. The complainant in the said complaint also mentioned about the communication sent by the Op to the complainants by misleading them that the construction is in progress as scheduled.
30. During the pendency of the proceedings, the Ops filed a memo stating that they will waive payment of escalation made by them. Further in the said memo it is contended that as per clause 1.3 of the agreement, the complainant has to pay additional sum other than the sale consideration under the head as detailed therein and the escalation charges demanded earlier was inclusive of these charges. Hence, demand of escalation charge is waived of. The complainants may be directed to pay the amount under clause 1.3 of the agreement etc.,
31. On perusal of clause 1.3 of the agreement, it is seen that the same reads as hereunder 23 CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015 1.3 The purchaser/s shall in addition to the aforesaid payment as mentioned in the Annexure- ll, pay the Builder.
a) Proportionate cost of providing electrification, sanitary work, water connection charges, deposits payable to Bangalore Electricity Supply Company Ltd., Bangalore Water Supply and Sewerage Board, Cable Transformer and Ring Main Unit charges, pro-rata charges, supervision charges, service charges, meter deposits and charges for works executed on DCW basis and all other departmental charges and expenses for providing permanent connections of electricity, water and sanitary to Schedule 'B' property and the buildings therein including for Schedule 'E' property;
b) Municipal Taxes, levels and other taxes that may be levied or imposed and sought to be demanded and recovered by the Municipal Corporation and/or any other Authority; and
c) All other taxes which are now applicable or which may be imposed or levied on a later date before or at the time of sale of Schedule 'E' property.
32. Op has produced draft of proposed letter to be sent to its customers for payment of amount due under clause 1.3 of the agreement to sell, on perusal of which it is seen that under various head Op had demanded in all a sum of Rs. 14,92,000/- as additional amount payable under the said clause. Apart from said sum of Rs. 14,92,000/- further sum of Rs. 1,80,000/-has to be deposited towards BESCOM and BWSSB expenses. Thus Op instead of asking for escalation charges have sought to demand the same in different manner.
24CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015
33. Nevertheless under the agreement the complainants are liable to pay the charges under the head so enumerated under clause 1.3. However to claim the same Op is required to produce necessary documents of demand or payment and also explain as to how the said amount is distributed amongst different apartment owners or in the alternative as to how it is made applicable to each apartment depending upon the size of the apartment.
34. Thus admittedly under the agreement, the date for delivery is fixed and Op has not completed the construction within the stipulated period.
35. Further though Op plead in their defense that such delay was justified on account of certain force majeure and same is not established by it, no materials are placed to accept the same.
36. Admittedly, under the agreement there is also a clause with regard to payment for default in delivery in time depending upon the size of the apartment at Rs.5/- per sq. ft per month from the date of such default till actual date of delivery.
37. As it is stated by some of the complainants that property was hypothecated to financier by Op, loan raised on that it is also necessary to give instructions to the Op to register the document free of encumbrance.
25CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015
38. As discussed herein the complainants are liable to pay charges as per clause 1.3 of the agreement subject to production of necessary documents and accordingly, complaints are entitled to be allowed. Hence, the following ORDER
1. The above complaint Nos.161, 176, 177, 181, 183, 192, 202, 215, 220, 223, 245, 258, 267, 276, 281, 287, 289, 309/2015 are partly allowed directing the OP to complete the construction work of the respective apartment as mentioned above in Sovereign Unnathi project and deliver the possession thereon to the respective complainant/s to execute and register the sale deed free from all encumbrance in respect of such apartment in favour of each of the complainant/s. The OP shall also get the required occupancy certificate from the competent Authority in that regard.
2. OP shall pay compensation at Rs.5/- per sq. ft per month for delayed period of delivery from agreed date of delivery with additional grace period of 6 months as mentioned in the agreement to sell as enumerated in the judgment, till such registration and delivery of possession.
3. OP shall liable to pay cost of Rs. 10,000/- to the complainant.
26CC.Nos.161,176,177,181,183,192,202,215,220,223,245, 258,267,276,281,287,289,309 of 2015
4. OP shall comply with the said direction within 3 months from the date of receipt of copy of this order.
5. Further OP is at liberty to enforce clause 1.3 of the agreement to sell, to claim proportionate cost of providing electrification etc., as stated therein by producing acceptable document with regard to such claim and apportionment of such liability in favour of each of the complainant separately. However, such liberty granted to Op shall not exonerate it from discharging his liability as per the direction given to execute and register the sale deed and deliver possession of the property and to pay compensation within the time and said liberty is distinct /independent of such liability of OP stipulated herein above.
6. Keep the original of this order in C.C. No. 161/2015 and copy thereon in rest of the complaints.
Lady Member Judicial Member President *BR*