Sunita C. Bagewadi, Member
This complaint is filed against the Opposite Parties alleging deficiency in service and prays to direct the Opposite Parties to complete the construction work of the schedule apartment and provide utilities as per terms of the agreement executed in respect of the schedule apartment and register the sale deed in respect of the schedule apartment in favour of the complainants and had over the possession of the schedule property to the complainants after receiving balance sale consideration and to direct the Opposite Parties to pay penalty @ 9% per annum on the sale consideration amount of Rs.50,60,942/- from 06.08.2015 till the date of registering the sale deed and handing over the possession along with rent paid and compensation for mental agony.
2. The facts of the complaint are as under:-
The complainants are assignees/purchasers of residential apartment bearing No.13156, situated on floor/level-15, of Tower/Block-13 in PRESTIGE TRANQUILITY, being developed on schedule “A” property, measuring 1636 Sq.Ft. of super built up area, inclusive of proportionate share in all the common areas such as passages, lobbies, lifts, staircases and other areas of common use and with one car parking space in the basement from the Opposite Parties under agreement of assignment dated:06.08.2015.
2(a) The complainants further submitted that the Opposite Parties have entered into an agreement to sell dated:22.02.2012 with one Mr.Shree Kumar S/o Late Abasama, agreeing to sell the proportionate undivided share in schedule “A” property more fully described in schedule “B” for a total sale consideration of Rs.7,36,200/- and the Opposite Parties have entered into a construction agreement dated:22.02.2012 with Mr.Shree Kumar for construction of an Apartment in “Prestige Tranquility” for a total cost of Rs.44,38,160/-.
2(b) The complainants further submitted that out of the total sale consideration amount of Rs.51,74,360/- for the apartment, Mr.Shree kumar has paid Rs.50,60,942/- to the Opposite Parties as per terms and apartment to sell and construction agreement.
2(c) The complainants further submitted that as per the terms and conditions of the construction agreement executed between the Opposite Parties, the Opposite Parties have agreed and undertaken to complete the construction of the apartment and deliver possession of the apartment to Mr.Shree Kumar on or before 31.12.2014 with a grace time of an additional six months in case of delay and further the Opposite Parties agreed to pay to Mr.Shree Kumar interest at the rate of 9% per annum on the amount paid for any delay in delivery of possession of the apartment.
2(d) The complainants further submitted that Mr.Shree kumar has executed an agreement of assignment dated:06.08.2015 in favour of the complainants as per Clause 10 of the agreement to sell dated:22.02.2012. It is further submitted that after waiting for six months from the date of execution of the agreement of assignment dated:06.08.2015 the complainants approached the Opposite Parties several times and called upon them to deliver possession of the apartment to the complainants. The Opposite Parties however failed to comply with the complainants’ request and postponed the same on one pretext or the other.
2(e) The complainants further submitted that they have availed huge amount of Rs.40,00,000/- loan from the AXIS BANK LTD., Jayanagar, Bangalore in the year 2015 and also withdrew huge amount of Rs.16,00,000/- from the provident fund of the complainants and made arrangement for payment of the sale consideration for purchase of the apartment. The complainants are paying EMI of Rs.84,600/- per month to AXIS BANK LTD., for the loan availed. Further the complainants are residing in a rented house paying rent of Rs.32,000/- per month for the rented house. It is further submitted that they are not getting income tax rebate on the housing loan interest amount and the principal amount since possession of the apartment is not handed over to the complainants.
2(f) The complainants further submitted that in spite of several requests, demands reminders and personal visits the Opposite Parties have not bothered to comply with the demand and on the other hand is adopting delay tactics to frustrate the complainants. Under these circumstances, the complainants got issued a legal notice dated:23.08.2016 to the Opposite Parties to complete the construction of the apartment and hand over possession of the apartment and for other consequential reliefs. It is further submitted that in response to the legal notice the Opposite Parties have sent a reply dated:12.09.2016 seeking for additional period of two months to hand over the apartment and when investigation some basic amenities were not provided for the apartment. Hence, the complainants filed this complaint alleging deficiency of service against the Opposite Parties in not handing over the possession of the apartment and registering the sale deed in favour of the complainants.
3. The Opposite Parties appeared through advocate and filed this version admitting the facts regarding Para Nos.3, 4 ,5, 6 & 7 of the complaint and denied all other Paras of the complaint and contended that the construction of the Flat/Unit No.13156 was completed and ready for handing over the possession on 20.09.2016 itself. The Opposite Parties have sent communication to the complainant vide ‘e’ mail dated:14/09/2016 that the Flat is ready for delivery on 20.09.2016 for interior works and called upon to make balance payment at-least 10 days in advance so to schedule delivery on time. The Opposite Parties further contended that the complainant had not paid the balance due amount for delivery of possession of the Flat and also to execute the sale deed in favour of complainants. The Opposite Parties further contended that after spot inspection on 20/09/2016 by the complainant, the complainant sent an ‘e’ mail dated:22.09.2016 raising false issues and refused to take possession of the Flat and hence refused to take possession and committing default in making payment is nothing but breach of terms and conditions of the agreement. The Opposite Parties further submitted that Clause 5(c) penalty clause is not applicable and Opposite Party already sent a reply to pay any compensation to the complainant because the delay occurred due to the reasons beyond control of the Opposite Parties. Hence, prays to dismiss the complaint.
4. Advocate for complainant filed affidavit evidence and marked the documents as Ex.C1 to C23. The Opposite Parties also filed affidavit evidence and marked the document at Ex.R1.
5. We have heard the arguments of Opposite Parties. Advocate for complainant filed written arguments on two times i.e., on 04.01.2018 and 14/07/2021.
6. Perused the contents of the complaint, affidavit evidence filed by both the parties and objections filed by Opposite Parties we noticed that the Opposite Parties are admitted that the complainants are purchased the residential apartment bearing No.13156 situated at Floor/Level-15, of Tower/Block-13 in PRESTIGE TRANQUILITY being developed on schedule ‘A’ property measuring 1636 Sq.Ft. of super built up area inclusive of proportionate share in all the common areas such as passages, lobbies, lifts, staircases and other areas of common use with one car parking space in the basement under construction agreement dated:22.02.2012 and agreement of assignment dated:06/08/2015 for total sale consideration of Rs.51,74,360/- for the Flat and construction.
7. The Opposite Parties also admitted that the complainants have paid Rs.50,60,942/- to them. We have perused the documents, ‘e’ mails and photographs produced by the complainant in 2016. The contention of the complainant is that the Opposite Parties have not completed the work as per the terms and conditions of the agreement which is true and believable. The Opposite Parties have to be completed the work and hand over the Flat to the complainants on or before 31.12.2014 with grace period of six months and even after lapse of six months of the agreement of assignment was entered into between the parties, the Opposite Parties have not handed over the Flat to the complainants.
8. However, the Opposite Parties contended that after spot inspection form the complainants, the complainants have sent ‘e’ mail dated:22.09.2016 raising false issues and refused to take possession of the Flat and hence refusal to take possession and committing default in making the payment is nothing but breach of terms and conditions of the agreement. Hence, in our opinion and as per the statement of account dated:27/08/2018 produced by the complainant, there was a balance due of Rs.9,80,769/-. Hence, in our opinion the complainants have committed default in making the full consideration amount towards the Flat and violated the terms and conditions of the agreement.
9. Perused the order sheet of this Commission. On 25.06.2019 it is noted as under:-
“Advocate for complainant submits that the complainant is ready to take the Flat. The advocate for Opposite Parties submits that the Flat is ready and they are ready to execute the registered sale deed subject to payment of remaining amount as agreed. However, both parties submit that they are report this Commission whether the scheduled flat is ready for occupation and registration”
On 19.07.2019 it is noted as under:-
Advocate for complainant files memo along with copy of cheque for having received cheque in favour of Opposite Party for some of Rs.9,80,349/- and another cheque for Rs.5,08,017/- towards registration charges.
Further, on 25.07.2019 it is noted as under:-
“The complainant submits that she has taken the possession of Flat and that she would go for a registration within six weeks. Both sides are directed to comply with the direction and to report regarding registration of the sale deed”
10. As per the order dated:25/07/2019, the complainants have to be report regarding registration of sale deed in 2019. However, the complainants have filed written arguments on 14.07.2021, wherein they stated that the Opposite Parties have handed over the possession of the Flat on 24.07.2019 and executed registered sale deed on 05.10.2019.
11. The complainants have committed default in making full consideration amount and the Opposite Parties are failed to construct the Flat and deliver to the complainant as per the agreement. The complainants have paid the balance due amount to the Opposite Parties through cheque on 19.07.2019 i..e Rs.9,80,349/- and Rs
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.5,08,017/- and the Opposite Parties have handed over the possession of the Flat on 24.07.2019 to the complainant and executed the registered sale deed on 05.10.2019. Both parties have complied the conditions in 2019 only. 12. The only issue before this Commission is that ‘whether complainants entitled for the compensation for delay in delivery of the Flat’? 13. It is seen that the complainants have not paid full consideration amount towards the Flat. The complainants have paid balance due amount in 2019 and the Opposite Parties have registered the sale deed in 2019 only and the complainants have filed written arguments about complying the conditions by the Opposite Party in 2021 i.e. after lapse of 1 year 9 months. The complainants have dragging the matter unnecessarily. Hence, considering all these facts and discussions made here, we are of the opinion that there is no any deficiency on the part of Opposite Parties. Hence, the complainants are not entitled to any delayed compensation. Accordingly, the complaint is liable to be dismissed. Hence, ORDER: The complaint is dismissed. No costs. Send a copy of this order to both parties.