w w w . L a w y e r S e r v i c e s . i n



Vikas Agrawal v/s M/s. Kare Electronics & Development Pvt. Ltd., Rep. by its Director S.R. Ajith & Another


Company & Directors' Information:- L G ELECTRONICS INDIA PRIVATE LIMITED [Active] CIN = U32107DL1997PTC220109

Company & Directors' Information:- T V S ELECTRONICS LIMITED [Dissolved] CIN = U30006TN1986PLC013301

Company & Directors' Information:- U K B ELECTRONICS PRIVATE LIMITED [Active] CIN = U32109DL2004PTC126250

Company & Directors' Information:- J V ELECTRONICS PVT. LTD. [Active] CIN = U74899DL1973PTC006446

Company & Directors' Information:- L B ELECTRONICS LIMITED [Active] CIN = U32109DL2005PLC134598

Company & Directors' Information:- J. C. ELECTRONICS PRIVATE LIMITED [Active] CIN = U51909GJ2010PTC061768

Company & Directors' Information:- J N J ELECTRONICS LIMITED [Active] CIN = U32101DL2005PLC142345

Company & Directors' Information:- ELECTRONICS LTD [Under Liquidation] CIN = U32201DL1945PLC000866

Company & Directors' Information:- P R ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U31900KA1991PTC011572

Company & Directors' Information:- S N A ELECTRONICS PRIVATE LIMITED [Active] CIN = U32204DL2009PTC188412

Company & Directors' Information:- H P AGRAWAL AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1988PTC032865

Company & Directors' Information:- S M I C ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U51909DL2009PTC193590

Company & Directors' Information:- D M ELECTRONICS PRIVATE LIMITED [Active] CIN = U31909DL1997PTC087620

Company & Directors' Information:- S S G ELECTRONICS PRIVATE LIMITED [Active] CIN = U31909DL1998PTC092657

Company & Directors' Information:- C. G. ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U52334UP1992PTC014453

Company & Directors' Information:- C. ELECTRONICS PVT. LTD. [Under Liquidation] CIN = U51433WB1991PTC052848

Company & Directors' Information:- VIKAS R & D INDIA PRIVATE LIMITED [Active] CIN = U73100DL2012PTC232875

Company & Directors' Information:- R T S ELECTRONICS PVT LTD [Strike Off] CIN = U32109PB1986PTC006755

Company & Directors' Information:- B. T. ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U29309TG1998PTC030240

Company & Directors' Information:- A K G ELECTRONICS PRIVATE LTD [Strike Off] CIN = U31909DL1984PTC017616

Company & Directors' Information:- R M ELECTRONICS PVT LTD [Strike Off] CIN = U32109WB1988PTC045429

Company & Directors' Information:- R V ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U31909PN2003PTC017582

Company & Directors' Information:- P C S L ELECTRONICS PVT LTD [Active] CIN = U51505WB1996PTC077466

Company & Directors' Information:- A H S ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC037364

Company & Directors' Information:- D V C ELECTRONICS INDIA PRIVATE LIMITED [Strike Off] CIN = U32201DL1996PTC077906

Company & Directors' Information:- K R A ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U32109DL2005PTC140367

Company & Directors' Information:- A C R ELECTRONICS PRIVATE LIMITED [Active] CIN = U29100KA2013PTC071197

Company & Directors' Information:- U V ELECTRONICS PVT LTD [Strike Off] CIN = U29308MP1985PTC002738

Company & Directors' Information:- L AND S ELECTRONICS PRIVATE LIMITED [Active] CIN = U74899DL1980PTC011153

Company & Directors' Information:- F M S ELECTRONICS PRIVATE LIMITED. [Strike Off] CIN = U32109CH1988PTC008596

Company & Directors' Information:- K G ELECTRONICS PRIVATE LIMITED [Active] CIN = U74899DL1987PTC027723

Company & Directors' Information:- U S ELECTRONICS PVT LTD [Amalgamated] CIN = U32109MH1981PTC024519

Company & Directors' Information:- S V ELECTRONICS LIMITED [Strike Off] CIN = U29309TG1999PLC031988

Company & Directors' Information:- H P ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U29100PN2011PTC138672

Company & Directors' Information:- P T ELECTRONICS PRIVATE LIMITED [Active] CIN = U31909MH1999PTC119296

Company & Directors' Information:- I. V. ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U51909MH2011PTC214508

Company & Directors' Information:- U P S ELECTRONICS PRIVATE LIMITED [Active] CIN = U74899DL1987PTC027323

Company & Directors' Information:- U AND U ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U32109DL2001PTC112361

Company & Directors' Information:- V N ELECTRONICS PRIVATE LIMITED [Active] CIN = U32200DL2009PTC188507

Company & Directors' Information:- ON ELECTRONICS PRIVATE LIMITED [Active] CIN = U74990KA2009FTC083028

Company & Directors' Information:- S V S ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U32300DL1993PTC053405

Company & Directors' Information:- V R ELECTRONICS PRIVATE LIMITED [Strike Off] CIN = U31101KA1975PTC002784

Company & Directors' Information:- AGRAWAL AND COMPANY LIMITED [Liquidated] CIN = U74999RJ1945PLC000338

Company & Directors' Information:- L P ELECTRONICS PRIVATE LIMITED [Active] CIN = U99999MH1974PTC017722

    Complaint No. 107 of 2013

    Decided On, 23 August 2021

    At, Karnataka State Consumer Disputes Redressal Commission Bangalore

    By, THE HONOURABLE MR. JUSTICE RAVI SHANKAR
    By, JUDICIAL MEMBER & THE HONOURABLE MRS. SUNITA C. BAGEWADI
    By, MEMBER

    For the Complainant: Geetha Raj, Advocate. For the Opposite Parties: S.R. Ajith, B.S. Anilkumar, Advocates.



Judgment Text

Sunita Channabasappa Bagewadi , Member

1. This is a complaint filed by the complainant against the Opposite Parties alleging deficiency in service and prayed to direct them to receive the balance sale consideration as per the Sale cum Construction Agreement and handover the finished vacant possession of Schedule ‘C’ flat or in the alternative to refund the advance amount of Rs.14,80,300/- along with interest at 18% p.a. from the date of receipt, till realization. Further prayed to direct the Opposite Parties to pay Rs.2 lakhs towards mental agony and Rs.50,000/- towards costs of litigation.

2. The averments in the complaint are as hereunder;

It is the case of the complainant that the Opposite Party No.1 is a owner in peaceful possession and enjoyment of the property measuring 4 acres in Sy.Nos. 3/2 & 4, situated in Amruthahalli Village, Yelahanka Hobli, Bangalore North Taluk, duly converted for non-agricultural residential purposes vide order of the Deputy Commissioner, Bangalore District, Bangalore bearing No.BDIS.ALN.SR(N) 166/1989-90 dt.14.02.1990. The Opposite Party No.1 being desirous of developing four acres of land in the said property has formulated a scheme for the development of the same into a residential apartments building and entered into Joint Development Agreement dt.14.09.2005 with the Opposite Party No.2 who is a Developer. The Opposite Party No.2 secured sanctioned plan from BDA vide LP No.NAMA/ASA/ AA2/U/12/2006-07, dt.27.07.2006 for construction of 6 blocks with basement, ground and eleven upper floors for putting up aforesaid development and evolved a scheme of ownership of residential apartments as ‘SKYLINE BEVERELY PARK’.

3. The Opposite Party No.1 in terms of the aforesaid agreement had entered into an allocation/sharing agreement dt.12.01.2007 for sharing of the apartments in the building along with their undivided right, title and interest in accordance to their respective shares as agreed under the Joint Development Agreement. The Opposite Party No.2 in pursuance of the Joint Development Agreement entered into a Sale cum Construction Agreement with the complainant on 09.07.2012, agreeing to sell schedule ‘C’ apartment in schedule ‘A’ property and the total sale consideration as per the Sale cum Construction agreement is Rs.47,50,000/- and accordingly the complainant paid an amount of Rs.4,80,300/- towards the advance sale consideration.

4. The complainant submits that as per the Sale cum Construction Agreement as on the date of agreement, the concrete building structure was in existence the Opposite Party No.2 was required to provide the amenities and facilities as provided at Schedule ‘D’ of the Sale cum Construction Agreement under the heads kitchen, toilets, painting, electrical, lifts, driveway and car park, waterproofing, recreational facilities and security system. The complainant submits, thereafter an amount of Rs.10 lakhs was paid on 01.08.2012 by way of cheque bearing No.622106 dt.30.07.2013 in favour of the Opposite Party No.2. The Opposite Party No.2 realized the said cheque and issued a receipt acknowledging the receipt of the same. The complainant submits, despite of several visits to the office of the Opposite Party No.2, the staff had time and again assured and promised that the finished structure of the schedule ‘C’ property would be delivered at earliest, however, despite of receipt of Rs.14,80,300/- there was no progress/ improvement over the schedule property.

5. During January 2013, the complainant addressed the mail to the Opposite Party No.2, enquiring about the date of delivery of the flat, however, the Opposite Party No.2 had not bothered to reply the said mail. The complainant several occasions visited the office of the Opposite Party No.2 and expressed his willingness to pay the balance sale consideration to the Opposite Party provided that the Opposite Party No.2 would commence the work as promised and deliver the vacant possession of the completed finished structure with all the amenities as provided under Schedule ‘D’ of the Sale cum Construction Agreement.

6. The complainant submits that he was shocked to receive a letter dt.03.05.2013 from the Opposite Party No.2 terminating the Agreement on the premise alleging that the complainant had not made necessary installment payment despite of repeated reminder letters and as such invoking the termination clause and forfeiting the sum equivalent to 25% of agreement value i.e., the entire advance amount of Rs.14,80,300/- stood forfeited. The complainant after receipt of the said letter immediately tried to contact the Opposite Party No.2, however, as there was no proper response addressed amail on 27.06.2013. Terminating the agreement and forfeiting the advance amount paid amounts to deficiency in service and unfair trade practice. Further vide letter dt. 03.05.2013, the Opposite Party No.2 terminated the Agreement on flimsy ground alleging non-payment of installment against the complainant amounts to deficiency in service.

7. The Opposite Parties appeared through their counsel and files their version. The Opposite Party No.1 in their version denies each and every one of the allegations of the complainant. It is further submitted that the complainant has not locus standi to make any claim against the Opposite Party No.1. There is no privity of contract with the Opposite Party No.1. No monies have been paid by the complainant to Opposite Party No.1. The monies paid by the complainant, under the Agreement, are paid only and wholly to the Opposite Party No.2. It is further submitted that the Opposite Party No.1 is the full and absolute owner of the land bearing Sy. Nos. 3/2 and 4, situated in Amruthahalli Village, Yelahanka Hobli, Bangalore North Taluk, duly converted for non-agricultural purposes vide Order of the Deputy Commissioner, Bangalore District, Bangalore bearing No.BDIS.ALN.SR (N) 166/1989-90 dt.14.02.1990 (“the said property”). The Opposite Party No.2 offered to develop the said property by constructing residential apartments to which the Opposite Party No.1 agreed. A Joint Development Agreement (JDA) was entered into between the Opposite Party No.1 and the Opposite Party No.2 on 14.09.2005 at Bangalore, bearing No.BNC (U) YLNK/6336 2005 2006 in the office of the Sub-Registrar, Yelahanka, Bangalore. As per Clause 5.1 of the JDR, the 68% of the proportionate undivided share, right, title, interest and ownership in the said property shall belong to the ‘Developer’ (viz., the Opposite Party No.2) and 32% of the proportional undivided share, right, title, interest and ownership in the said property shall belong to the ‘Owner’ (the Opposite Party No.1). In furtherance and in continuation to the JDA, a Sharing Agreement dt.12.01.2007 came to be executed. The 2 BHK apartment booked by the complainant falls within the share of the Developer/Builder i.e., the Opposite Party No.2. Subsequently, another agreement on 24.03.2007, was entered into as an Addendum to the JDA in terms and consequence of which, the extent of built-up areas, car parks and other areas allotted to the share of the Opposite Party Nos. 1 & 2 inter-alia are expressly stipulated. Further submits that the Opposite Party No.1 is not liable to pay damages too for any reason whatsoever and prayed to dismiss the complaint against them.

8. The Opposite Party No.2 also files their version and contended that the complaint is not maintainable either in law or on facts. It is submitted that the claim of the complainant against the Opposite Party Nos.1 & 2 is Rs.17,30,300/- which is less than Rs.20,00,000/-. Hence, on this ground itself, due to inherent lack of pecuniary jurisdiction to entertain the complaint and adjudicate there upon. Pecuniary jurisdiction to entertain the complaint goes to the root of the matter. It is only the Jurisdictional Civil Court which is competent to grant the relief of Specific Performance. It is submitted that the Sale cum Construction Agreement dt.09.07.2012 under clause (1) of the same, the Sale cum Construction of the flat that was fixed between the parties is a total sum of Rs.47,50,000/- (which is exclusive of maintenance expenses, water and power connection charges, Khatha charges, club membership). Under clause (3) of the Agreement, it was agreed between the parties that the complainant/purchaser has to pay the balance sale consideration to the Developer/Opposite Party No.2 as per the stipulated schedule. According to the payment schedule the complainant was required to pay the balance sale consideration as and when he hs been called upon by the Opposite Party No.2. The Opposite Party submits that the complainant has not adhered to the Payment Schedule of the Sale cum Construction Agreement which is the essence of the contract and of paramount importance. This is because the Opposite Parties has undertaken the task of construction and completion of the same within the stipulated period of time. The complainant despite being informed on completion of every floor slab of the apartment, the proportionate payment to make and despite being called upon to make the payment as per the schedule, none-of the payments are made as per clause (3) of the Agreement. It is submitted that in the light of aforesaid facts and circumstances, were various correspondences/ communications came to be addressed to the complainant by the Opposite Party No.2 calling upon him to make the balance sale consideration. None of the communications/ correspondences have been answered by the complainant. It is submitted that there is an inordinate delay in making the payment by the complainant to the Opposite Party. This amounts to material breach of the contract.

9. The Opposite Party No.2 further submits clause (9) of the agreement provides that and it was specifically made clear that for the cancellations made other than for the reasons those mentioned above, the Developer (Opposite Party No.2) has the right to 25% of the sale price stipulated as liquidated damages and the same shall be set off against the amounts already paid by the Purchaser/s to the Developer and the balance amount if any, shall be paid by the Purchaser (complainant) to the Developer (Opposite Party No.2. The Opposite Party submits for the breach of the complainant in not making payment as per the time schedule, the complainant has committed a material breach of the contract and hence, under clause (9) of the Agreement the Opposite Party is entitled to 25% of the sale consideration of Rs.47,50,000/- (which is exclusive of maintenance expenses, water and power connection charges, Khatha charges, club membership) as the liquidated damages and hence, an amount of Rs.11,87,500/- shall be set off against a sum of Rs.14,80,300/- which amounts/sum paid by the complainant. In light of clause (10) of the Agreement, the question of the complainant being entitled to be refunded a sum of Rs.14,80,300/- does not arise and hence, the present complaint is not maintainable. Consequently, the complaint is liable to be dismissed.

10. The complainant filed affidavit evidence and marked documents at Ex.C1 to C14. The Opposite Party No.1 files affidavit evidence, but, not marked any documents. Advocate for Opposite Party No.1 files memo of retirement on 12.10.2020. The Opposite Party No.2 has not filed their affidavit evidence and also not marked any documents. Heard the arguments of advocate for complainant. Inspite of sufficient time granted, the Opposite Party No.2 has not submitted their arguments.

11. On perusal, the following points will arise for our consideration;

(i) Whether the complaint proved any deficiency in service against the Opposite Parties?

(ii) Whether the complainant is entitled to relief sought?

(iii) What order?

12. The findings to the above points are;

(i) Affirmative

(ii) Affirmative

(iii) As per final order

REASONS

13. POINT NOS. 1 & 2: Perused the complaint, objections, affidavit evidence and material on record, the contention of the Opposite Party is that the complainant has no privity of contract with the Opposite Party No.1 and no monies have been paid by the complainant to the Opposite Party No.1, the monies paid by the complainant under the agreement are only wholly to the Opposite Party No.2. The Opposite Party No.2 is a developer and Opposite Party No.1 was entered into Joint Development Agreement on 14.09.2005 with the Opposite Party No.2. As per clause 5.1 of JDA, 68% of the proportionate and undivided share, right, title, interest and ownership in the said property shall belong to the ‘Developer’ i.e. Opposite Party No.2 and 32% of the proportionate undivided share, right, title, interest and ownership in the said property shall belong to the ‘Owner’ i.e. Opposite Party No.1. In furtherance and in continuation to the JDA, a Sharing Agreement dt. 12.01.2007 came to be executed. Moreover, the apartment booked by the complainant (2 BHK bearing No.103, in Block – F, 1st Floor with super built up area of 1300 sq.ft. – Schedule ‘C’ property) falls within the share of the developer i.e. Opposite Party No.2. The another agreement on 24.03.2007 was entered into as an Addendum to the JDA in terms and consequence of which the extent of built-up areas, car parks and other areas allotted to the share of the Opposite Party Nos. 1 & 2 inter-alia are expressly stipulated.

14. On perusal of the JDA and Addendum to JDA Ex.C1, we noticed that the Opposite Party Nos. 1 & 2 entered into the JDA as per clause No.5.1 of JDA 68% of the proportionate and undivided share, right, title, interest and ownership in the said property shall belong to the ‘Developer’ i.e. Opposite Party No.2 and 32% of the proportionate undivided share, right, title, interest and ownership in the said property shall belong to the ‘Owner’ i.e. Opposite Party No.1. As per Ex.R2, the 2 BHK flat booked by the complainant bearing No.103 in Block-F on the first floor with a super built-up area of 1300 sq.ft falls within the share of the developer i.e. Opposite Party No.2. Further, the receipt produced by the complainant as per Ex.C2 & C3, the complainant has paid the loan towards the flat to the Opposite Party No.2 only. Hence, the contention of the Opposite Party No.1 that there is no privity of contract with Opposite Party No.1 and no monies have been paid by the complainant to the Opposite Party No.1 is true and believable. The Opposite Party No.2 contended in its objection that the claim of the complainant against the Opposite Party Nos. 1 & 2 is Rs.17,30,300/- which is less than Rs.20 lakhs. Hence, on this ground itself, due to inherent lack of pecuniary jurisdiction to entertain the complaint i.e., Hon’ble Commission has no jurisdiction to entertain the complaint and adjudicate there upon. The pecuniary jurisdiction to entertain the complaint goes to the root of the matter. The State Commission has admitted the complaint in 2013 and as per old Consumer Protection Act, 1986, the pecuniary jurisdiction of State Commission (a) to entertain (i) complaint whether the value of the goods and services and compensation if any claimed (exceeds Rs.20 lakhs), but does not exceeds Rs. 1 crore. In the present case, the value of goods and services is i.e. consideration amount is Rs.47,50,000/-. Hence, this Commission has pecuniary jurisdiction to hear the complaint. Hence, there is no question of pecuniary jurisdiction at this stage.

15. The another contention of Opposite Party No.2 is that the Sale cum Construction Agreement dt.09.07.2012 under clause (1) of the same, the Sale cum Construction of the flat that was fixed between the parties is a total sum of Rs.47,50,000/- (which is exclusive of maintenance expenses, water and power connection charges, Khatha charges, club membership). Under clause (3) of the Agreement, it was agreed between the parties that the complainant/purchaser has to pay the balance sale consideration to the Developer/Opposite Party No.2 as per the stipulated schedule. Perused Ex.C1 the Sale cum Construction Agreement dt.09.07.2012 as per clause No.9 :

Cancellation for other reasons: It is specifically made clear and hereby placed on record that for the cancellations made other than for the reasons those mentioned above, the Developer has the right to 25% of the sale price stipulated herein as liquidated damages and the same shall be set off against the amounts already paid by the Purchaser/s to the Developer and the balance amount if any, shall be paid by the Purchaser to the Developer. Further the Purchaser/s is also liable to reimburse any losses suffered by the Developer by resale of the schedule ‘B’ and ‘C’ properties to any other buyers. After deducting the aforesaid amounts and all dues to the Developer, the balance without any interest will be paid to the Purchaser/s only on sale of the Schedule ‘B’ & ‘C’ properties to the other buyers and upon receipt of the advance from the new buyer. Such refund to the Purchaser shall be made within one month from the date of receipt of amount from the new buyers.

16. The complainant has paid Rs.14,80,300/- which was admitted by the Opposite Party No.2 and despite of several visits to the office of the Opposite Party No.2 and lot of communication through emails and expressed his willingness to pay the balance sale consideration amount to the Opposite Party No.2. The Opposite Party No.2 has not commenced the work as promised and not delivered the flat to the complainant and issued a letter dt.03.05.2013 terminating the agreement alleging that the complainant had not made necessary installments inspite of repeated reminders and letters. However, there is no any reminder letter produced by the Opposite Party No.2 except the termination letter dt.03.05.2013. After receiving the letter, the complainant communicated the Opposite Party No.2 through mail about the development of work at schedule ‘C’ property, so that the balance sale consideration could be made, but, there was no response addressed to the email dt.27.06.2013. Hence, the mere contention of Opposite Party No.2 in his objection that the complainant had not made necessary installments so that the Opposite Party No.2 has terminated the agreement cannot be accepted and believed. Moreover, the Opposite Party No.2 has not filed affidavit evidence to prove his contention and without affidavit evidence, there is no weightage to the contention of the Opposite Party No.2.

17. The Opposite Party No.2 had not followed the terms and conditions of the agreement. There is an inordinate delay in development of work in scheduled ‘C’ property inspite of receipt of the advance amount. The complainant has invested his heard earned money for booking the flat and even after receiving the part of the amount of Rs.14,80,300/-, the Opposite Party No.2 delayed in development of work in the scheduled ‘C’ property and terminated the agreement suomotto and unfairly shifted the liability upon t

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he complainant. The clause-9 of the agreement is one sided and in favour of the developer which is unfair. The terms and conditions of the agreement authorized by developer do not maintain a level platform between the developer and flat purchaser. The stringent terms imposed on the flat purchaser are not in consonance. The failure of the developer to comply with the contractual obligation to develop the work in the schedule ‘C’ property and provided the flat within the stipulated period and terminated the agreement suomotto would amounts to deficiency in service and unfair trade practice of the Opposite Party. The complainant has paid part payment of Rs.14,80,000/- in the year 2012 and this amount is in the custody of Opposite Party No.2 till today. One sided terms and conditions infreach upon basic rights of the flat owners to prove his claim. The complainant has produced his affidavit evidence along with some documents and photos of work to prove his contentions. 18. Hence, after considering all the facts and discussion made here, as the Opposite Party No.2 himself has terminated the agreement suomotto in the year 2013, the complainant is entitled for refund of the amount which he has paid to the Opposite Party No.2 towards purchase of the flat with interest at 12% along with compensation and costs. Accordingly, we answer Point Nos. 1 & 2 in the affirmative. In view of our findings on Point Nos. 1 & 2 for the reasons stated above, we proceed to pass the following; ORDER The complaint is allowed against Opposite Party No.2. The Opposite Party No.2 is directed to refund Rs.14,80,300/- to the complainant along with interest at 12% p.a. from 09.07.2013, till realization. The Opposite Party No.2 is further directed to pay a sum of Rs.2,00,000/- towards compensation and Rs.25,000/- towards costs of litigation to the complainant. The Opposite Party No.2 is granted 30 days time from this date to comply the Order. The complaint against Opposite Party No.1 is hereby dismissed. Forward free copies to both the parties.
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