SRIGANESH CHANDRASEKARAN Vs. UNISHIRE HOMES LLP

JUDGEMENT

(1.) This Consumer Complaint is filed under Sec. 12 (1) (c) read with Sec. 13 (6) of the Consumer Protection Act 1986 (for short the 'Act') read with Order 1 Rule 8 of the Code of Civil Procedure, 1908 by the Complainants/Buyers against M/s Unishree Homes LLP and Others alleging deficiency in service and unfair trade practice on account of delay in handing over the possession of the flats booked by the Complainants with the Opposite Parties in a project promoted and developed by them. The permission to file this joint complaint has been granted by this Commission, vide order dtd. 20/3/2018 in view of the decision rendered by a three-Members Bench of this Commission dtd. 7/10/2016 in CC No.97 of 2016 - Ambrish Kumar Shukla and Ors. Vs. Ferrous infrastructure Pvt. Ltd. A public notice of the complaint was also published in the newspapers and pursuant to the said notice, several other allottees applied for impleadment in this complaint and were impleaded accordingly. It is stated in the complaint that all the Buyers who are part to this complaint are having common grievance i.e. failure of the Opposite Parties in handing over the peaceful legal possession of the flats within the time stipulated as per the Agreement executed with them and they want possession of the flats alongwith compensation for not handing over possession of their apartments on time. They have 'same interest' in terms of the judgement passed by this Commission in Ambrish Kumar Shukla (supra). Initially, 44 Complainants had instituted this Complaint. Vide order dtd. 1/10/2021, 34 complainants had already withdrawn their names out of 44 Complainants.

(2.) The relevant facts of the case as per the Complainants, in brief, are that Opposite Party No.1 is a duly registered partnership firm and is the confirming party as well as the developer. Opposite Party Nos.2 to 4 were the owners and in possession of the property bearing Survey No.78, Thanisandra Village, K.R. Puram Hobli, Bangalore, East Taluk who executed a Joint Development Agreement (JDA) with Opposite Party No.1 dtd. 24/2/2012 for development and construction of the flats. They had also executed a General Power of Attorney in favour of Opposite Party No.1. The Complainants/Buyers booked units in the project 'Unishree Terraza', Bengaluru' with the Opposite Parties. It is stated that in the Sale Agreement, all the Opposite Parties were jointly effecting the sale in favour of the Complainants/buyers and therefore the Opposite Parties, including the Developer and the landowners, are jointly liable for the numerous instances of unfair trade practices, restrictive trade practices and deficiency in services.

(3.) The Opposite Parties launched a group housing project, in the name of 'Unishree Terraza', in Bengaluru in December, 2012 and made wide publicity of the facilities and amenities of the project. Believing upon the representations and tall promises of the Opposite Parties, the Complainants booked the flats during 2012-2015 and deposited booking amount from Rs.1.00 lakh to Rs.8.00 lakh. The Complainants opted for a 'Construction Linked Plan' wherein the purchasers was under obligation to make payment only on progress of construction. The Complainants diligently followed payment plan and all the Complainants paid about 85% to 95% of basic sale consideration, at regular intervals. Subsequently, the Opposite Parties executed the Sale Agreements with the Complainants. Some of the Complainants have taken loan from bank for payment of consideration. As per Clause (a) of Completion and Possession of the Memorandum of Sale Agreement, the legal possession of the flats were supposed to be handed over within 36 months with an additional grace period of 6 months from the date of Commencement Certificate issued by BBMP subject to receiving the entire sale consideration and other charges and taxes. The date of Commencement Certificate issued by BBMP, is stated to be 24/8/2013. 42 months period including the grace period from 24/8/2013 the date of Commencement Certificate issued by BBMP, expired on 24/2/2017. Therefore, possession of the units ought to have been delivered by 24/2/2017 including the grace period of 06 months. The grievance of the Complainants is that despite having been taken 85% to 95% of money from the Complainants, the Opposite Parties did not hand over to the Complainants the possession of the apartments alongwith Occupation Certificate, Completion Certificate and all promised facilities and amenities within the stipulated time as per the Agreements executed with the Complainants. Further, the Opposite Parties were also guilty of unilaterally reducing the carpet area of the flats without the consent of the Complainants. The Complainants kept inquiring from the office of Opposite Party about the exact date of possession but were given evasive replies without any deadline. The Complainants were informed through various emails that the construction would be completed soon and possession would be delivered in 2017 itself. However, vide email dtd. 2/8/2017, Opposite Party No.1 admitted that they would not be able to restart the construction for about 3 months. Thereafter, Complainants sent a legal notice on 5/6/2017 seeking redressal of their grievances since the purpose of booking the flats and making payment had been frustrated. The Complainants were bearing the double burden of paying rent and also paying EMI of the bank loan. Alleging deficiency in service on the part of the Opposite Parties, the Complainants are before this Commission with a joint complaint seeking following relief: