Oral Order: (K. Ramesh, Member Judicial)
All these eleven complaints are filed U/s.17(1)(a) of Consumer Protection Act, 1986 praying this Commission to direct the Opposite Parties to complete the construction of the villa and to pay the damages etc., for the delay.
The facts and the circumstances involved in all these cases are similar in nature and the Opposite Parties i.e., the Builder is also the same. As such all these cases are being disposed of by way of common order.
We will be referring to the facts in CC.No.09/2018 for the sake of convenience.
The brief facts of the case are that:-
The Opposite Party No.1 is a partnership firm and involved in construction activity and offered the plots for sale and the construction of villas. The Complainant approached the Opposite Parties and intended to purchase a plot and accordingly an agreement of sale was entered into on 14.02.2014 for a total consideration of Rs.44,50,000/- which includes the cost of the construction of the villa. The Opposite Parties having received the entire sale consideration executed a sale deed in respect of the plot on 26.03.2014. According to the Complainant, the Opposite Party agreed to complete the villa by 14.02.2016 but failed to fulfill their obligation. Thereafter the Complainant got issued a legal notice demanding the Opposite Parties to complete construction of the villa and deliver the possession thereof, but there is no response. The Opposite Parties admitted about their failure to complete the construction work within time and further agreed to pay compensation for the delay. The Complainant having paid entire sale consideration has failed to realize his dream of getting the villa and the Opposite Parties failed to fulfill their obligations. Hence the complaint.
The facts in all other complaints are similar in nature, as such it is not necessary to reiterate the said facts.
The Opposite Parties filed their written version in this case and also in CC.No.10/2018, 11/2018, 27/2018, 34/2018, but failed to file any written version in C.C.No.254/2017, 255/2017, 47/2018, 62/2018, 80/2018 and also in C.C.No.119/2018.
The version of the Opposite Parties is that the Complainants are not entitled to get any compensation and that the claim is barred by limitation and that the Commission is not having the jurisdiction to entertain the case. The Opposite Parties further pleaded that the Complainants have paid the entire sale consideration and an agreement of sale, followed by a registered sale deed was executed by them. The Opposite Parties have not received any legal notice from the Complainants. The Opposite Parties admitted that they did not complete the villa as promised and that the delay was caused due to non-payment of the dues by some other villa purchasers, as such the Opposite Parties could not able to construct the villas and that there is no intention to delay the construction of the villa.
The Opposite Parties also further pleaded that as per article XII, there is a clause for arbitration in the case of any dispute in between the parties, as such this Commission has no jurisdiction to entertain the complaint. The Opposite Parties further pleaded that they have constructed the villa up to 95% and some work is only left over, but the Complainant suppressing the real facts, filed the complaint and that the Complainants are not entitled to claim any compensation without actual calculations and also measurements and that there is no deficiency on the part of the Opposite Parties in construction of the villa and finally prayed to dismiss the complaint.
In all these cases, the Complainants filed their affidavit evidence and produced documents in support of their claim as mentioned in the appendix of evidence. On the other hand, the Opposite Parties filed the affidavit evidence of OP2 in CC.No.254/2017, 255/2017, 09/2018, 10/2018, 11/2018, 27/2018, 34/2018, 47/2018 only.
Heard both sides. The Complainant also filed written arguments.
The points for consideration in all these cases are as under:-
1. Whether the Commission has got the jurisdiction to entertain the complaint?
2. Whether the Commission has got jurisdiction in view of the existence of a clause for arbitration?
3. Whether the claim is within the limitation?
4. Whether there is any deficiency in service on the part of the Opposite Parties?
5. To what relief the Complainants are entitled to?
The Opposite Parties pleaded that the valuation is wrongly shown to invoke the jurisdiction of this Commission, as such this Commission has no jurisdiction to try the complaint. According to the Complainant, the value of the villa agreed to be purchased is within the prescribed limits of this Commission. The disputes in between purchaser of plot, followed by construction agreement of the builder squarely falls within the purview of this Commission. In this connection, we are fortified by a judgment of the Hon’ble Supreme Court of India, reported in 1994 SCC (1) 234. Therefore, the contention advanced by the counsel appears to be unsustainable. Accordingly the point is answered in favour of the Complainants and against the Opposite Parties.
As rightly contended by the Opposite Parties,there is a clause under article XII to refer the dispute if any, for arbitration. This clause itself is not sufficient to exclude the jurisdiction of this Commission and direct the Complainant to refer the matter for arbitration. In this connection, it is relevant to refer a judgment in the case of National Seeds Corporation Limited (Petitioner) Vs. P.V.Krishna Reddy (Respondent), reported in 2009 (1) CPJ 99 wherein, their Lordships after discussing various judgments, observed that: 'the existence of Arbitration Clause in agreement is no bar to the entertainment of the complaint by the Consumer Forum, which is an additional remedy under the Consumer Protection Act and the remedy provided under the Consumer Protection Act is in addition to the provisions of any other law'. In view of the aforesaid mentioned principles, it can be safely held that the existence of a clause for reference to Arbitrator does not exclude the jurisdiction of this Commission. Accordingly this point is answered in favour of the Complainants and against the Opposite Parties.
The Opposite Parties took a plea that the claim of the Complainant is barred by limitation. Admittedly, the agreement was entered into in the year 2014 and the Complainants have paid the entire sale consideration but the Opposite Parties failed to construct the villa as agreed by them and failed to deliver the possession of the villa to the Complainant. Since the Opposite Parties failed to fulfill their obligations and offered the delivery of possession, therefore, it can be held that the limitation starts from the date of issuing a notice to take delivery of possession only. In the case on hand, the Opposite Parties not only failed to construct the villa but also failed to give any notice of intimation about the completion of the villa, as such it can be held that the cause of action continues till the Opposite Parties complete the construction of villa and issue notice. As such the claim of the Complainants is within the limitation and accordingly the point is answered in favour of the Complainants and against the Opposite Parties.
There is no dispute that the Complainants approached the Opposite parties to purchase the plot of site for construction of the villa and there is no dispute about the payment of the entire total consideration by the Complainant to the Opposite Parties, so also execution of agreement of sale followed by the registration of sale deed in favour of the purchaser/Complainant.
The only short question that falls for consideration is whether there is any deficiency in service in construction of the villa and delivering the possession thereof in terms of agreement of sale.
Admittedly the agreement was entered about more than four years back and according to the terms of the said agreement of sale, the Opposite Parties agreed to construct the villa and deliver possession within one year and six months or so. Admittedly the lapse on the part of the Opposite Parties admitted by them in their written version as well as evidence affidavit. But they contended that, because of non-payment of the amount by the purchasers of other villas, the Opposite Parties could not proceed with the construction of the villa and complete the same. The said defense of the Opposite Party appears to be a lame excuse because if, anyone of the purchaser fail to fulfill the obligations in terms of agreement of sale, the Opposite Party is expected to take appropriate steps against the defaulted purchaser and complete the remaining work of other purchasers and deliver the possession thereof to the purchasers who paid the entire amount. It is contended by the Opposite Party that 95% of the construction of the villa is completed and only minor works are left over, but the Opposite Parties have not produced any scrap of paper to prove the status of the construction in order to prove their bonafides. Admittedly, the Opposite Parties failed to adhere to the terms and conditions of the agreement of sale and put the Complainants to lot of inconvenience and because of lapse on the part of the Opposite Parties, the Complainants are deprived of suitable accommodation for their occupation. Thus
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, it can be safely held that there is a deficiency in service on the part of the Opposite Parties. Accordingly the point is answered in favour of the Complainants and against the Opposite Parties. The Complainants claimed a compensation as well as fair rent but the Complainants have not produced any evidence to substantiate the said plea. However, on account of delay, it is just and reasonable to award a compensation of Rs.50,000/- towards the delay in delivering the possession of the villa. In the result, the complaints are allowed in part and the Opposite Parties are directed to complete the remaining work in all aspects in terms of agreement of sale and deliver the possession thereof to the respective Complainant within a period of one month. The Opposite Parties are also directed to pay compensation of Rs.50,000/- to each of the Complainant in all the cases along with costs of Rs.10,000/-. Dictated to stenographer, transcribed by her, corrected and pronounced by us in open Court on this the 8th day of January,2019.