State Consumer Disputes Redressal Commission
Sukumara Shetty vs M/S Three Cure Projects Pvt. Ltd. on 7 November, 2022
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. Complaint Case No. CC/61/2020 ( Date of Filing : 19 Feb 2020 ) 1. Sukumara Shetty S/o Laxmana Shetty, Aged about 44 years, R/a No.4-251/1, Sugadi, Hosamane Uddalagudde, Near Panchayath Hanehalli, Udupi, Barkur-576210 Rep. by GPA holder Jayaram Shetty S/o Bhoja shetty, Aged about 53 years, R/a G2, Saptagiri Residency, BDA Main road, Old Airport road, Bangalore-560017 Karnataka 2. Preethi Shetty W/o Sukumara Shetty, Aged about 42 years, R/a G2, Saptagiri Residency, BDA Main road, Old Airport road, Bangalore-560017 Karnataka ...........Complainant(s) Versus 1. M/s Three Cure Projects Pvt. Ltd. Regd. Company having office at: No.2-93/8 & 93/9, Whitefield, Kondapura, Hyderabad-560032 Rep. by its Directors a)K.Amaranath Reddy, S/o K.Madhusudhana Reddy b).Kishore S/o G.B.Babu c)P.Hemanth Reddy S/o P.Ramachandra Reddy Telangana ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE Huluvadi G. Ramesh PRESIDENT HON'BLE MR. Krishnamurthy B.Sangannavar JUDICIAL MEMBER HON'BLE MRS. Smt. Divyashree.M MEMBER PRESENT: Dated : 07 Nov 2022 Final Order / Judgement BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 07th NOVEMBER 2022 PRESENT HON'BLE Mr. JUSTICE HULUVADI G. RAMESH: PRESIDENT Mr KRISHNAMURTHY B. SANGANNANAVAR: JUDICIAL MEMBER
Mrs DIVYASHREE M: LADY MEMBER Consumer Complaint No.61/2020 Sukumara Shetty, S/o Laxmana Shetty, Aged about 44 years, R/a No.241/1, Sugandi, Hosamane Uddalagudde, Near Panchayath Hanehalli, Udupi, Barkur-576210.
Rep by Power of Attorney Holder, Jayaram Shetty, S/o Bhoja Shetty, Aged about 53 years, R/a G2, Saptagiri Residency, BDA Main Road, Old Airport Road, Smt. Preethi Shetty, W/o Sukumar Shetty, Aged about 42 years, R/a No.241/1, Sugandi, Hosamane Uddalagudde, Near Panchayath Hanehalli, Udupi, Barkur-576210.
Rep by Power of Attorney Holder, Jayaram Shetty, S/o Bhoja Shetty, Aged about 53 years, R/a G2, Saptagiri Residency, BDA Main Road, Old Airport Road, Bangalore-560017. ..................Complainants (By Channakeshava B.S., Adv.)
-Versus-
M/s True Cube Projects Pvt. Ltd.
Regd. Company having office at:
No.2-93/8 & 93/9, Whitefield, Kondapura, Rep. by its Directors:
K.Amaranath Reddy, S/o K.Madhusudhana Reddy, Aged about 43 years.
G.Kishore, S/o G.B.Babu, Aged about 46 years.
P.Hemanth Reddy, S/o P Ramachandra Reddy, Aged about 45 years. ....................Opposite Party BY Mrs. M.DIVYASHREE : LADY MEMBER ****** //ORDER // This is a complaint filed under Section 17 of Consumer Protection Act, 1986 against the OPs alleging the deficiency in service and prays for orders:
To direct OPs to execute a registered Sale Deed with respect to the Schedule Property. Despite the orders of this Hon'ble Court if the OPs fails to execute a registered Sale Deed, the court to execute a registered Sale Deed with respect to the Schedule Property in favour of the complainant.
To direct the OPs to pay a sum of Rs.2,00,000/- towards the excess monies spent towards the internal work after setting off the balance monies payable with respect to the agree Sale Consideration.
To direct to pay a sum of Rs.5,00,000/- towards mental agony and loss of opportunity.
To direct OPs to pay cost of proceedings and such other reliefs as the Commission deems fit.
On admission of this complaint, notice of compliant is ordered on the OPs, however could not be possible to serve the notice in an ordinary manner, as such served with paper publication, yet OPs remained absent and the Commission held, service by way of paper publication is sufficient, accordingly OPs are set exparte. In such circumstances, complainant submitted his affidavit evidence and documents marked as Ex.C1 to C13, thereby closed evidence. The Commission examined complaint averments, Ex.C1 to C13 and heard learned counsel complainant. As per Ex.C1 Mr.Jayaram Shetty is hereby nominate and constituted as Power of Attorney holder of the complainants to do or cause to be done all or any of the true and lawful following acts, deeds and things in complainants name in the above complaint.
It is the case of the complainant that the complainants had entered into an Agreement of Sale dated 09.04.2009 with the OPs and further had also entered into a construction agreement dated 09.04.2009 with the OPs for the purchase of a 03-Bedrooms apartment bearing No.317, on the 2nd Floor, Block-5 of the apartment building known as "ELIL ABODE" having 2864sq.ft. of Super Builtup area containing 03-bedrooms, Hall, Dining and Kitchen together with one covered car parking space, along with proportionate share in common areas such as passages, lifts, lobbies, staircase, club house, generator and enjoyment of all the facilities of the club and other areas of common use contained in the multistoried building to be constructed on the residential lands bearing Survey No.157/2, measuring to an extent of 1 Acre 13.32 Guntas, situated at Mahadevapura Village, Krishnarajapuram Hobli, Bangalore South Taluk, presently Bangalore East Taluk, Bangalore more fully described in the schedule.
Prior to execution of the above said agreements dated 09.04.2009, it was represented by the OPs to the complaint that the owners of the above said lands had entered into Joint Development Agreement dated 28.06.2007, registered as Document No.1360/07-08 and that the OPs, the Developer, had undertaken to develop the Schedule-A property by constructing residential apartments as per the scheme formulated by the OPs(Developer) and that the owners had authorized the OPs, the Developer to act as contractor and Builder for the prospective purchaser/s of the apartments as per the plan sanctioned in this behalf by the appropriate authority and construction to be made at the discretion of the Developer.
It is further submitted that in accordance with the above said development scheme envisaged by the Developer, a person interested in owning a residential apartment in "ELIL ABODE" is required to apply to the developer for allotment of a residential apartment the buyer is required to purchase from the owners, the proportionate undivided share right, title and interest in Schedule-A property by entering into an Agreement to Sell with the said owners and further enter into a separate construction Agreement with the Developer for the purposes of construction of the said apartment.
The complainants alleges that based on the above representations and bonafide believing them to be true, the complainants desirous of purchasing an apartment for their living, entered into the above said "Agreement of Sale" and the "Construction Agreement" dated 09.04.2009. It is appropriate to state here that under the Agreement of Sale, the total agreed sale consideration with respect to the undivided share in the Schedule-A property was a sum of Rs.5,00,000/- further the agreed total consideration under the construction Agreement was a sum of Rs.59,66,240/-. Therefore, the total agreed sale consideration for the purchase of the schedule property was a sum of Rs.64,66,240/-. Further the complainants submits that the said total agreed Sale Consideration, the complainants on the date of execution of the above said Agreements and thereafter have in all paid a sum of Rs.54,66,240/-.
From the terms and conditions set out in the above said agreements dated 09.04.2009, it was categorically promised by the OPs that the said schedule property would be developed, constructed as per the agreed specifications and delivered to the complainants within 28th May 2009 with a grace period of three months.
The complainants submit that in order to facilitate the purchase of the above said schedule property without any let or hindrance of financial payments to the developer, the complainants made every effort to ensure prompt payments in respect of the agreed sale consideration. The OPs are fully aware that the complainants together with the OPs had entered into a Tripartite Agreement dated 29.04.2009 with a financial institution, namely LIC Housing Finance Ltd., where under the complainants in order to purchase the schedule property had borrowed a sum of Rs.50,00,000/-. Under the said Tripartite Agreement, the OPs, the Developer herein has once again promised to construct, develop and deliver the schedule property within 28th May 2009. Based on the said representations LIC Housing Finance Ltd., was pleased to release the above said monies in favour of the OPs.
It is reiterated that the above said monies to the tune of Rs.54,66,240/- were directly paid to the OPs which is duly acknowledged.
The complainant submits that thereafter sometime during March 2012, the OPs herein called upon the complainant and delivered the physical possession of the Schedule Property, more specifically the shell of the apartment without carrying out any works with regard to the internal work, including but not limited to electrical works, laying of flooring, plumbing, fixing of window panes, carpentry works with regard to wardrobe etc., even though the same was admittedly the obligations of the OPs as per the above referred agreements.
Having taken the physical possession of the schedule property it was specifically represented by the OPs that the complainant herein shall execute the above referred internal works at his own expenses and the same would be adjusted/set off from the balance monies payable towards the agreed sale considerations. Bonafide believing the representations of the OPs, the complainant incurred an expenses of nearly Rs.12,00,000/- towards the internal work, which was agreed to be deducted from the original agreed cost of the apartment, at the time of execution of the absolute Sale Deed.
It is submitted that although originally the OPs were obliged to construct and deliver the schedule property on 28th May 2009, the OPs has completely failed in complying with its contractual obligations and deliver the schedule property only in March 2012 and that too in the state as mentioned herein above. Ever since the complainants herein has been in peaceful possession and enjoyment of the Schedule Property, however the OPs has failed to come forward and execute an absolute Sale Deed and further have failed to settle all claims of the complainant herein i.e., the excess amounts of Rs.2,00,000/- spent towards the internal work based on the representations of the OPs, various defects in construction. It is further appropriate to state that OPs have failed and omitted from complying with obligations despite repeated requests and demands from the complainants.
Under the above circumstances, the complainants were constrained to issue a legal notice on 28.01.2020 calling upon the OPs to come forward and execute the absolute Sale Deed in respect of the Schedule Property and further to settle all claims of the complainant herein. The said notice returned unserved with the endorsement "left the address".
Now, the commission has to decide on the alleged rendering deficiency in service on the part of OPs, and if it is shown, to award suitable reliefs Commission go through the Ex.C2 and C3 filed by the complainant. The complainant entered into Agreement to Sell and Construction Agreement dated 09.04.2009 with the OPs for the total agreed Sale Consideration for the purchase of the Schedule property was sum of Rs.64,66,240/-. The complainants on the date of execution of the above said agreements and thereafter have in all paid a sum of Rs.54,66,240/- to the OPs. To find support produced all receipts which are marked as Ex.C4 to C6.
On our careful perusal of Ex.C7 the complainants together with the OPs, the developer had entered into a Tripartite Agreement dated 29.04.2009 with a financial institution, namely LIC Housing Finance Ltd., where under the complainants in order to purchase the Schedule Property had borrowed a sum of Rs.50,00,000/- under the said Tripartite Agreement, the OPs, the developer herein has once again promised the construct, develop and deliver the Schedule Property within 28th May 2009. Based on the said representations LIC Housing Finance Limited was pleased to release the above said monies in favour of the OPs. The complainant had deposited with the Builder a sum of Rs.14,66,240/- as the initial/booking amount for registration of his application for purchase of the said flat/dwelling unit/plot & after accepting the same, the Builder has agreed to sell the flat/dwelling unit No.Flat 317 on the 2nd Floor of the said multi-storied building/housing complex name as "ELIL ABODE" and build and situated at said premises Sy.No.157/2, Mahadevapura Village (more fully described in the Schedule hereunder written and hereinafter referred to as the "Property") and thereafter the complainants has deposited a sum of Rs.14,66,240/- towards earnest money/part payment of the total purchase price of the property which has been agreed at Rs.64,66,240/- and thus the complainant has now to pay a balance of Rs.50,00,000/- to the Builder for acquiring the said flat/dwelling unit. The complainant has applied to LICHFL for a loan of Rs.50,00,000/- for the purchase of the Property and LICHFL has agreed to sanction a loan of Rs.50,00,000/- to the complainant by way of a housing loan subject to the marketable title of the property and the other usual terms and conditions as applicable thereto, such as creation of security on the said flat/dwelling unit, payment of agreed rate of the interest on loan, term and repayment, payment of additional overdue interest in case of default, etc. which terms and conditions have been fully understood and accepted by the complainant.
As per agreement dated 29.04.2009 at clause-1 it is mentioned that the LICHFL has sanctioned a housing loan of Rs.50,00,000/- to the complainant for the purchase of the property from the builder in their project at premises no THREE CUDE PROEJCTS Pvt. Ltd. Sy.No.157/2, Subbanna Compound Near Outer Ring Road, Mahadevapura, Bangalore-560048. LICHFL, disburse this loan directly to the OPs on behalf of the complainants as per the installments agreed between the complainants and OPs in the Agreement for Sale dated 09.04.2009 entered into between the OPs and the complainants for sale of the said flat/dwelling unit, which is duly acknowledged. However, there is a clear evidence of Ex.C9 and Ex.10 to show that the amount of Rs.54,66,240/- is collected by the OPs.
Further it is also specifically mentioned that time is essence of the contract. Thus OPs was supposed to duly comply with their obligations and complete the construction as per the agreed specifications and deliver the apartment schedule property within the stipulated time. Learned counsel for complainant submit that as per clause 'E' of the Construction Agreement, OPs shall complete the construction of the building and agree to handover possession of the Schedule II Property on or before 28th May 2009 with a grace period of three months after obtaining clearance from all relevant authorities. During March 2012, the OPs herein called upon the complainant and delivered the physical possession of the schedule property, more specifically the shell of the apartment without carrying out any works with regard to the internal work, including but not limited to electrical works, laying of flooring, plumbing, fixing of window panes, carpentry works with regard to wardrobe etc., even though the same was admittedly the obligations of the OP as per the above referred agreements. Having taken the physical possession of the schedule property it was specifically represented by the OP that the complainant herein shall execute the above referred internal works at his own expenses and the same would be adjusted/setoff from the balance monies payable towards the agreed sale considerations. Bonafide believing the representations of the OPs, the complainants incurred an expenses of nearly Rs.12,00,000/- towards the internal work, which was agreed to be deducted from the original agreed cost of the apartment, at the time of execution of the absolute sale deed.
Under the above circumstances, all the requests and demands made by the complainants is met with empty promises. The OP kept on providing with one or the other excuses quoting excuses and kept on seeking for extension of time and merely made empty promises executing the absolute sale deed and to satisfying other such claims raised by the complainants. Due to the inactions and inefficiency of the OPs the complainants have been put to sever hardships financially and otherwise. Despite having possession of the Schedule Property, the complainants is unable to enjoy the absolute right over the property as the absolute sale deed in so far as the schedule property and has not been executed in his name even till this day.
In such circumstances, considering affidavit evidence with documents Ex.C1 to C13 produced by the complainant, since OPs have failed to rebut these materials on record, are to be held receiving Rs.54,66,240/- have rendered deficiency in service being service provider, and the complainants being consumers rightly raised consumer complaint under Section 17 of Consumer Protection Act, 1986 seeking reliefs since OPs have agreed under Sale Agreements to executing the absolute Sale Deed and to satisfying other such claims raised by the complainants, which has to be considered by the Commission.
Accordingly, Commission proceed to allow the complaint in part and direct OPs to execute registered Sale Deed with respect to the Schedule Property in favour of the complainants. The OPs are directed to pay a sum of Rs.2,00,000/- towards the excess monies spent towards the internal work after setting off the balance monies payable with respect to the agreed sale consideration. The OPs are also directed to pay compensation of Rs.1,00,000/- to the complainants towards mental agony and Rs.25,000/- towards litigation cost within 60 days. The OPs are further directed to comply the above order within two months from the date of receipt of this order, failing which the OPs are directed to pay interest @ 09% p.a. from the date of complaint till realization for the award amount.
Furnish Free Copy of the Order to the parties.
Lady MemberJudicial MemberPresident *GGH* [HON'BLE MR. JUSTICE Huluvadi G. Ramesh] PRESIDENT [HON'BLE MR. Krishnamurthy B.Sangannavar] JUDICIAL MEMBER [HON'BLE MRS. Smt. Divyashree.M] MEMBER