S. RAJENDRAN Vs. METRO BANKERS ENCLAVE

JUDGEMENT

(1.) THIS complaint is filed against the opposite party 1 to 4 with a prayer to execute necessary documents and put him in possession into completely built up apartments bearing Flat No. B -403 on the 4th floor of Block -B consisting of two apartments totally measuring about 2300 sq.ft., built on the property bearing No. 555/603 situated at G.M. Palya, Bangalore -75 in the apartment complex known as "Bankers Enclave" and also to pay an amount of Rs. 20,00,000 towards compensation to the complainant due to negligence of service rendered by the Ops and also cost and such other reliefs deems fit. The case of the complainant in actual is that, himself and his wife were desirous of having a shelter of their own, decided to purchase a residential property. On the advertisement given by the OPs holding that, they are one of the noted property developers and promoters having built flats and proposing to construct residential apartment known as "Bankers Enclave" approached the OPs to purchase a residential property. The business affairs of the opposite parties 1 and 2 were handled by opposite parties 3 and 4. Opposite party 3 being the wife of opposite party 4, gained sufficient experience in the field of real estate and construction of apartments. Opposite parties 3 and 4 promised that the property where they propose to construct Bankers Enclave, have a marketable title without their being any lacuna, they would construct the flats within the agreed period and deliver it within January 2003. Believing the words and promises of the opposite parties 3 and 4 with regard to the title of the property agreed to purchase the apartment being built in Bankers Enclave. Complainant requested for two flats of 1150 sq.ft. each to be combined into one larger apartment and the OPs 3 and 4 agreed to sell two normal flats constructed into one larger apartment of about 2300 sq.ft. To that effect opposite party 1 executed an agreement of sale and also agreement for construction agreement dated 1.2.2001 with opposite party 2 and received an amount of Rs. 11,50,000 up to 15.5.2002 in different instalments and issued receipts for having payments. OPs have conveyed the undivided share of the land by way of registered sale deed dated 7.3.2002. At the time of receiving the amount, opposite parties 3 and 4 promised that under any circumstances, they would deliver the constructed portion of the flats. The OPs have also allotted Flat No. B -403 on the 4th floor of B -Block consisting of two apartments totally measuring 2300 sq.ft. built on the property bearing No. 555/603 situated at G.M. Palya, Bangalore in the apartment complex known as Bankers Enclave. The complainant and his family thinking that, the OPs would keep up their promise and deliver the said two flats with sole intention to have their shelter and reside in their own apartment along with their old aged parents but the OPs have not at all constructed the apartment within reasonable time. Even after collecting the amount OPs 3 and 4 are not accessible to the complainant and they were evaded. In spite of expiry of time i.e., 2003, OPs failed to deliver the constructed apartments as agreed by them. Complainant was ready and willing to pay the balance of sale consideration amount if any and to complete the sale transaction. The OP failed to deliver the completely built apartments and evaded the complainant on one or the other pretext. Till date the OPs have not delivered the same to the complainant. The desire of the complainant was to bring his parents to Bangalore and to serve them but miserably failed as the s did not hand over the constructed apartments to the complainants. Unfortunately his father died on account of deficiency of service and illegal act of the OPs he suffered health problems on account of the illegal act of the OPs could not execute the sale deed and handover the possession of the flat bearing No. B -403. Therefore, he got issued legal notice to them but the OPs failed to comply with the same. Had they been executed a registered sale deed and put him in possession of the apartment he would saved the rent and thereby he sustained loss. Therefore, he filed a complaint claiming compensation of Rs. 20,00,000.

(2.) AFTER service of notice, OPs appeared and filed the version contending that, present complaint is not maintainable either in law or on facts as there is no relationship of a consumer and manufacturer between them. The complaint is false, fictitious and created for the purpose of filing the complaint with sole object of getting the work done through illegal means and to have unlawful gain by dragging the OPs into such kind of untenable litigations. Complainant and his wife Mrs. Jadila Rajendran have voluntarily approached the OPs requesting to provide a flat in an apartment in the residential project formerly known as Bankers Enclave at G.M. Palya, Bangalore. OPs have entered into an agreement of sale on 1.2.2002 in favour of the complainant and his wife Jadila on receiving a sum of Rs. 2,40,000 through a cheque dated 1.2.2002 for Rs. 10,000 and another cheque dated 1.3.2002 for Rs. 2,30,000. The OPs are still continuing their business and the complainant is well aware of the said fact as visited the office on many occasions for claiming refund of the amount. Even the OPs were ready to refund the amount. However, dispute arose in fulfilling the legal formalities before the refund. The Ops were forced to suspend the construction work on account of the Court order dated 14.6.2002 passed in W.P. by the Hon'ble High Court of Karnataka. During the pendency of W.P. filed by Mr. L.C. Krishna Murthy, the OPs have also received direction to stop further construction of the building by the BBMP authorities. The Assistant Executive Engineer of the BBMP, East Zone, Bangalore got issued show cause notice along with the provisional order dated 25.6.2006. Therefore, OPs were unable to continue the construction work to complete well within time. OPs have not stopped the construction work deliberately. Till they are putting the efforts to get the order set aside at the earliest possible time and the complainant is well aware of the facts and changed the circumstances which stopped construction work. The complainant was not allowed to continue the work on one side and the BBMP authorities on the other side by issuing directions under the provisions of Karnataka Municipal Corporation Act, 1976. There is no possibility of commencing the work in near future as the same is not in the hands of the OPs. OPs are very much eager to complete the project work within the stipulated time in order to avoid suffering, loss and damages. OPs have executed an agreement of sale in favour of the complainant and his wife on receiving Rs. 2,40,000 so as to enable them to avail housing loan from the financial institution. Later complainant demanded to refund of the said amount through a notice dated 28.2.2008 for which the OPs have replied to complete the legal infirmities for refund of the amount. Complainant came forward to execute a power of attorney in favour of OPs instead of executing a registered document for cancellation of registered sale agreement. The OP furnished a specimen power of attorney to the complainant which is still with the complainant. It is further alleged that the complaint filed is barred by limitation. Therefore, the OPs prayed for dismissal of the complaint.

(3.) WE have heard the arguments of learned Counsel for complainant and OPs and perused the records.