EUGENE RENT Vs. SHIRIN FARIAS PRABHU

JUDGEMENT

(1.) This order shall dispose of cross revision petitions filed against the order dated 5th August, 2006 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, the State Commission). Revision Petition No.2867 of 2006 has been filed by Eugene Rent which was opposite party before the District Consumer Disputes Redressal Forum, Mangalore (for short, the District Forum) and Revision Petition No.3883 of 2006 has been filed by Ms. Shirin Farias Prabhu which was the complainant before the District Forum. The parties would be referred to as 'the complainant' and 'the opposite party' hereinafter.

(2.) Ms. Shirin Farias Prabhu, the complainant, entered into an agreement with Mr. Eugene Rent, the opposite party, who is a developer and builder of properties, on 26th October, 1996 for purchase of a first floor apartment measuring 1378 sq. ft. along with a car parking area measuring 125 sq. ft. in a building to be constructed by the opposite party. Under the terms of agreement, complainant was to pay Rs.4,00,000 to the opposite party and also to exchange 'A' schedule property by way of consideration for the said flat and car parking. Opposite party was to construct and handover an apartment on the first floor measuring 1378 sq. ft. within twenty months i.e. on or before 30th June, 1998. As per the agreement, complainant paid the sum of Rs.4,00,000 to the opposite party. Opposite party delivered the possession of the flat on 8th June, 2000 instead of 30th June, 1998 i.e. with a delay of almost two years. Instead of giving the car parking area measuring 125 sq. ft., the opposite party gave only 65 sq. ft. Complainant, alleging deficiency in service in having delivered the apartment two years later than the agreed date and in having failed to convey the possession of 125 sq. ft. car parking area, filed the complaint before the District Forum seeking directions to the opposite party to pay Rs.2,25,000 being interest at the rate of 15% per annum on Rs.7,50,000 for the period from 1st July, 1998 to 7th June, 2000 and to convey a car parking area of 125 sq. ft. with compensation and cost.

(3.) Opposite party, on being served, entered appearance and filed written statement contending that the complaint was bad for non-joinder of complainant's daughter, Ms. Shalini Prabhu, who was a necessary party. On merits, it was contended that on execution of sale deed on 14th November, 2000 in favour of the complainant and her daughter there was novatio of the original contract and the complainant is not entitled to insist upon the terms of the original contract. It was further contended that the delay in completion of the work and in executing the sale deed was on account of the fact that the owner of the site while submitting the site under the provisions of the Karnataka Apartment Ownership Act submitted the land measuring only 9 cents instead of 10.55 cents originally agreed upon. That the consideration for the apartment constituted partly cash payment and partly transfer of schedule 'A' property to the opposite party. That the complainant had conveyed a defective title to the property which amounted to failure of consideration. It was denied that there was an agreement to hand over car parking area measuring 125 sq. ft. That the dispute between the parties involved complicated question of law and facts and, therefore, deserved to be referred to the Civil Court.