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NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION, NEW DELHI
K.S. Chaudhari, Presiding Member
Krishnamoorthy Narayanan and Ors. —Appellants
versus
M/s. Brigade Enterprises Limited
and Anr. —Respondents
First Appeal Nos.1026 to 1077 of 2014
Decided on 21.11.2016
For the Appellants:Shri Saurabh Prakash, Shri Nagesh, Advocates
For the Respondents:Shri Joy Basu, Sr. Advocate with Shri Abhinav Pandey, Shri Lomesh K. N., Shri Mohit Chadha, Ms. Pankhuri Bhardwaj, and Ms. Trisha Ray Choudhuri, Advocates
IMPORTANT POINT
Alleged deficiencies committed by Builder can be ascertained by report submitted Local Commissioner.
Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Karnataka Ownership Flats Act, 1972—Section 4—Real estate—Agreement to sell—Denial of possession of flats—Appellants who are apartment holders have been given right only in Schedule ‘A’ property whereas playground forms part of larger property in which no right has been given to appellants—Fencing playground by wall has not been objected by appellant but appellant wants access to playground which cannot be permitted as land of playground has already been sold by respondent to Brigade school whose children play in the ground—No right can be given to appellants for access in playground in absence of Brigade school as party to complaint Local Commissioner appointed by State Commission has given elaborate report regarding many deficiencies which was not called for as no relief was prayed in complaint pertaining to many of deficiencies mentioned in report—Except delay in handing over possession of plot, respondent has not committed any deficiency and for period of delay, State Commission has already allowed compensation as per terms of agreement as well—Appeals dismissed. (Paras 12 to 17)
Result: Appeals dismissed.
K.S. Chaudhari, Presiding Member—All these appeals arise out of common order of State Commission involving identical questions; hence, decided by common order.
2. These appeals have been filed by the appellants against order dated 23.4.2014 and 16.6.2014 by which complaints were partly allowed.
3. Brief facts of the case are that the complainants/appellants have entered into an agreement to sell and agreement to build with the OPs for purchasing the apartments in Brigade Gateway, Municipal No. 26/1, situated in Industrial Suburb, Subramanya Nagar, Ward No. 9A, Rajajinagar Extension, Bangalore, the project promoted by the OPs/Respondent. The complainants have paid the entire amount under the agreement of sale and construction agreement on the assurances and promise given by the OPs, for the purpose of construction and delivery of apartments, with the host facilities and amenities. Since the OPs prepared standard formal voluminous agreements, with clauses to be signed by the complainants who happen to be the consumers and the OPs have given verbal assurances and promotional materials, the complainants paid the initial advance and signed the standard agreements. But the OPs failed to deliver the possession of the flats in spite of several requests made by the complainants. The OPs have not kept their promise and the assurance given and the promotional materials used to convince the complainants to buy the apartments and the oral representations made for canvassing sales for the project to form the basis of the contract and the OPs cannot wriggle out of those assurances and promises, which amounts to unfair trade practice. As per the terms of the construction agreement, OPs were expected to complete the construction by 31.3.2008. Letters were sent by the complainants seeking clarification on the progress of construction on 20th December, 2008, 20th March, 2009, 29th June, 2009 and 29th August, 2009 and several e-mails were also sent. Several meetings were held in between the purchasers i.e., the customers and the OPs, despite the assurances the residential section, the apartment blocks and the apartment cannot be termed as complete in all respects by the OPs. Even after 23 months after the agreed date of delivery, considerable works remains pending. Therefore, on 27.01.2010, complainants visited the site and noticed many deficiencies as shown in paragraph 7 (ii) of the complaint. To that effect, complainants have submitted the report dated 27.01.2010 to the OPs as per Document No. 3. Likewise the copies of photographs taken by the complainants during their site visit dated 27.01.2008 and 10.02.2008 were produced as per Document No. 4. It is further case of the complainants that, OPs were well aware of the irreparable hardship and injury that has been caused to the complainants due to delay in completing the project. But however, it is shocking to note that instead of mitigating this hardship, the tone and tenor of the OPs response is one of denial and the OPs are expected to act in all fairness to at least mitigate the extensive financial loss and mental agony suffered by the complainants. For the last two years, complainants have been pro-actively organizing the meetings with the OPs to try and assess the correct state of the project and ascertain the likelihood of completion of the project by furnishing correct date but each and every time OPs have given misleading information. The attempt made by the complainants in all these complaints failed and they came to know that even while indicating a particular delivery date to existing customers, OPs have been simultaneously giving different and farther delivery dates to new customers by dodging the issues and till date not given a committed date for a comprehensive completion of the full project with all the promised amenities and facilities. In fact, the OPs have even
