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BEFORE THE KARNATAKA STATE COMMISSION FOR


REDRESSAL OF CONSUMER DISPUTES AT BANGALURU

APPEAL NO. /2019

BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER


DISPUTES REDRESSAL FORUM, MANGALURU

COMPLAINT NO. 129/2016

BEFORE THE KARNATAKA STATE COMMISSION FOR


REDRESSAL OF CONSUMER DISPUTES AT BANGALURU

APPEAL NO. /2019

BETWEEN: RANK OF THE PARTIES


DISTRICT STATE
FORUM COMMISSION
1. MRS. VEENA SHANTHARAM PRABHU
W/o. Mr. Shantharam Ramdas Prabhu,
Aged about 52 Years,

2. Mr. Shantharam Ramdas Prabhu,


S/o. Ramdas Madav Prabhu
Aged about 58 Years,
Both Residents of Apartment No. 403,
4th Floor, ‘B’ Block,
Maurishka Park, at and Near
Navabharath Circle,
Kodialbail, Mangaluru, D.K.
Karnataka – 575 003 : COMPLAINANT APPELLANT

AND

1. M/S. R.K. DEVELOPERS,


‘Mahindra Arcade’,
K.R.R. Road, Kodialbail,
Mangaluru D.K. Karnataka – 575 003 : O.P. NO.1 RESP. NO.1

2. RAMESH KUMAR,
S/o. Late. Choodappa Salian,
Aged 66 Years,
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R/at: “Saraswathi’, Gandhinagar,


Mangaluru D.K. Karnataka – 575 001 : O.P. NO.2 RESP. NO.2

3. THE PRESIDENT,
Maurishka Park Apartment Owners
Association, Maurishka Towers,
Kodialbail,
Mangaluru – 575 003 : O.P. NO.3 RESP. NO.3

MEMORANDUM OF APPEAL UNDER SECTION 15 OF THE


CONSUMER PROTECTION ACT

The Appellants named above submits as follows:

1) That the address of the Appellants for the purpose of service


of all notices and process of this Hon’ble Court shall be that
of her Advocate SRI. SANATH KUMAR SHETTY &B.
SANGAMESH No. 112/1A, Opp. to Haritha Apartment, 11th
Cross, 5th Main Road, Malleshwaram, Bengaluru – 560 003.

2) That the address of the Respondents for the purpose of service


of all notices and process of this Hon’ble Commission shall be
as stated in the cause title.

3) This appeal is presented against the order dated: 19.12.2018


passed by the D.K. District Consumer Disputes Redressal
Forum, Mangaluru in Complaint No. 129/2016, the
appellants have filed this appeal on the following amongst
other facts and grounds to be urged at the time of hearing of
this appeal.

BRIEF FACTS OF THE DISPUTE

4) The Appellants herein are the Complainants, the


Respondents herein are the Opposite Parties in Complaint
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No. 129/2016 on the file of Dakshina Kannada, District


Consumer Disputes Redressal Forum, Mangaluru. The
parties for the sake of convenience will be hereafter referred to
as they are as arrayed before the District Forum.

5) The complainants in the above complaint contending that,


they have entered into a Sale Agreement with Opposite Parties
for purchase of Apartment No. 403 on the 4th Floor,
measuring 1850Sq.Ft, Super Built up area of Maurishka Park
Apartment Building Complex together with proportionate
right over the common area and facilities including
proportionate undivided interest in Schedule ‘A’ land for a
consideration of Rs.33,37,500/-. Under the terms of the
agreement Opposite Parties are required to deliver possession
of the Apartment to the Complainants buyer on or before
31.05.2011. But failed to comply and keep up with the said
date. The delay caused was not due to any of the exclusion
clause mentioned of non availability of electricity and
corporation water supply to the apartment or on account of
non availability of cement, steel or other building materials.
There is also a Penal Clause against Complainants to pay
interest at 20% for delayed payment to the Opponent Builder.
The registered sale deed dated: 24.10.2008 executed by
Opposite Parties No. 1 & 2 in favour of the Complainants as
non agricultural immovable property for Rs.4,16,250/-. Under
statement of account provided to complainants by opposite
party from 01.01.2005 to 12.05.2014 complainants have paid
upto the Opposite Party No. 1 a sum to the tune of
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Rs.42,52,146/- to the Opposite Parties. The complainants


have also paid a sum of Rs. 26,600/- towards the Golds Gym.

6) The Complainants further contended that, the complainants


has put in actual possession of the subject apartment in the
year 2013 only i.e., there was delay of more than three years
time in delivery from the stipulated time of agreement in
question. Occupancy Certificate Dated: 20.12.2014 of the
premises was obtained by Opposite Parties. The complainants
occupied the premises in the year 2015 as Door Number was
issued by Mangaluru City Corporation as per proceedings
dated: 08.04.2015. Hence complainants seeks a direction to
Opposite Parties No. 1 & 2 to pay to him a sum of
Rs.17,85,882/- with interest at 9% and Rs. 1,00,000/- as
solatium and Rs. 26,600/- towards paid for Gym Facility and
Rs. 8,000/- as cost of the proceedings.

7) Opposite Parties filed common version denying the various


allegations made by the complainants. It is contended by
them that there is no deficiency in service as alleged by the
complainants. The Opposite Parties have also contended that
the claim is barred by limitation. The complainants have
purchased the apartments in full and final settlements of all
the matters. The sale deed was executed in the year 2008.
The Respondents contended that the delivery of the
apartment could not be made earlier on account of various
reasons beyond the control of the Opposite Parties. The
Opponents for the reasons stated in their version seek for
dismissal of the complaint.
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8) The complainant No. 1 has filed her affidavit by way of


evidence and answered the interrogatories served on her. The
complainants also got marked Ex.C1 to Ex.C8. The Opposite
Party No.2 was examined as RW1.

9) The Learned District Forum framed as many as four points as


arising for its consideration. After hearing the parties the
District Forum was pleased to dismiss the complaint on the
point of limitation only.

10) Being aggrieved by the order passed by the District Forum


have preferred this Appeal on the following amongst other
grounds to be urged at the time of hearing of the Appeal.

11) The appellants submit that, they have not filed any other
Appeal or any other case on the same cause of action.

GROUNDS

12) The impugned order is wrong and contrary to law.

13) The Learned District Forum has not applied correct principles
of law to the facts of the case.

14) The Learned District Forum has not appreciated the materials
on record properly.

15) The Learned District Forum has not framed proper points
that arise for its consideration. The finding recorded by the
District Forum at the time of admission against the Opposite
Parties are wrong.
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16) The Learned District Forum grossly erred in reject the


complaint filed by the complainant. The reason assigned by
the Learned District Forum for passing such an order against
the complainant is neither sound nor tenable.

17) The Learned District Forum has erred in dismissing the


complaint on the ground of limitation.

18) The Learned District Forum has not applied correct principals
of law to the facts of the case. The reasons assigned by the
District Forum for dismissing the complaint are not correct.

19) The District Forum comes to the conclusion that, the


Opposite Parties have right to terminate the agreement in case
of purchasers commits default in the matter of payment. The
District Forum further opines that the delay caused in the
matter of delivery of possession by the Opposite Parties is
justify when there is a default clause operating against the
complainants. According to the District Forum the probable
date of completion of the flat and delivery is by end of May
2011. The District Forum records a finding that there is a
delay of two years in delivery of possession by the Opposite
Parties to the complainants. The complainants have alleged
and proved that the possession of the flat was delivered only in
the year 2013 and the completion certificate was issued by the
competent authority on 08.04.2015. Thus for all legal
purpose the building is set to have been completed and
delivered only from 08.04.2015. The finding of the District
Forum that there is delay of two years is wrong. The District
Forum opines that the complainants occupied the flat in the
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year 2013. Mere occupation of the flat cannot be equated to


handing over of possession of the flat complete in all respects.
The District Forum proceeds to hold that when the delivery of
possession is admitted in the year 2013, the complaint filed on
29.03.2016 is barred by limitation. The said finding is clearly
against the records. The District Forum has clearly failed to
consider the judgment of the Hon’ble Supreme Court
reported in 2017 Volume – II, CPR Page – 1. It is held that
in a dispute concerning in consumer, it is necessary for the
courts to take a pragmatic view of the rights of the consumer
principally since it is the consumer who is placed at a
disadvantage visa-a-viz supplier of services or goods. The
provisions of limitation in the act cannot be strictly construed
to disadvantage of a consumer in case were the supplier of
goods of services itself is instrumental in causing delay in
settlement of consumers claim. In the instants case the
District Forum opines that, there is a delay in the matter of
handing over the possession. In such a case applying the
above principals the district forum ought to have held that the
question of limitation does not arise in the instant case and
ought to have allowed the complaint. The District Forum has
also not followed the well accepted principals of law that are
laid down by the national commission as well as the Hon’ble
Supreme court. The entire approach of the district forum is
wrong and the order impugned is liable to be set aside.

20) The Appeal is not filed within time. Hence the Appellants
filed proper application.
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Wherefore it is prayed that the Hon’ble court may be


pleased to set aside the order dated: 19.12.2018 passed in
Consumer Complaint No. 129/2016 on the file of D.K.
District Consumer Disputes Redressal Forum at Mangaluru
and allow this Appeal with costs.

Bengaluru
Date: .02.2019 ADVOCATE FOR THE APPELLANT
(SANATH KUMAR SHETTY.K)
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BEFORE THE KARNATAKA STATE COMMISSION FOR


REDRESSAL OF CONSUMER DISPUTES AT BANGALURU

APPEAL NO. /2019

BETWEEN:

MRS. VEENA SHANTHARAM PRABHU


AND ANOTHER : APPELLANTS

AND

M/S. R.K. DEVELOPERS


& OTHERS : RESPONDENTS

APPLICATION UNDER SECTION 5 OF THE INDIAN


LIMITATION ACT 1963

For the reasons stated in the accompanying affidavit the


Applicant herein prays that the Hon’ble Court Commission
may be pleased to condone the delay in filing the appeal and
grant such other and further reliefs as this Hon’ble
Commission deems fit in the circumstances of the case.

Bengaluru
Date: .02.2019
ADVOCATE FOR APPELLANT
(SANATH KUMAR SHETTY.K)
10

BEFORE THE KARNATAKA STATE COMMISSION FOR


REDRESSAL OF CONSUMER DISPUTES AT BANGALURU

APPEAL NO. /2019

BETWEEN:

MRS. VEENA SHANTHARAM PRABHU


AND ANOTHER : APPELLANTS

AND

M/S. R.K. DEVELOPERS


& OTHERS : RESPONDENTS

AFFIDAVIT

I, MRS. VEENA SHANTHARAM PRABHU, W/o. Mr.


Shantharam Ramdas Prabhu, Aged about 52 Years, Residents
of Apartment No. 403, 4th Floor, ‘B’ Block, Maurishka Park, at
and Near Navabharath Circle, Kodialbail, Mangaluru, D.K.
Karnataka – 575 003, do hereby solemnly affirm and state on
oath as follows:

1. I submit that, I am the Appellant No. 1 in the above


Appeal and the Appellant No. 2 is my husband. I am
aware of the facts of the case. Hence I am swearing to this
affidavit on my behalf and on behalf of Appellant No.2.

2. I submit that, the order impugned in this Appeal is dated:


19.12.2018 and the District Forum issued the Certified
Copy of the same on 29.12.2018. The Appeal is being filed
after delay of nearly 6 days.

3. I submit that, since the last week of January 2019 I have


been suffering from ill health. In view of the above referred
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complication I was not in position to collect the certified


copy of the impugned order.

4. I submit that, I recovered from above complication in the


first week of February 2019 and thereafter I approached my
Advocate at Bengaluru and instructed him to file this
Appeal.

5. I submit that, delay in the matter of filing this Appeal is


due to sufficient cause. There is no negligence or latches
on our part in the matter of preferring this Appeal.

6. I submit that, I had got valid grounds to urge in this


Appeal. If delay in the matter of filing this Appeal is not
condoned we will suffer great hardship.

Hence in the in the interest of justice I pray that the


Hon’ble Court may be pleased to condone the delay as
prayed for in the accompanying application.

I, MRS. VEENA SHANTHARAM PRABHU, the deponent


herein what is stated above is correct to my best of
knowledge and belief.

Identified by me,

ADVOCATE DEPONENT

MANGALURU
Date: .02.2019
12

BEFORE THE KARNATAKA STATE COMMISSION FOR


REDRESSAL OF CONSUMER DISPUTES AT BANGALURU

APPEAL NO. /2019

BETWEEN:

MRS. VEENA SHANTHARAM PRABHU


AND ANOTHER : APPELLANTS

AND

M/S. R.K. DEVELOPERS


& OTHERS : RESPONDENTS

INDEX

Sl. Particulars Page Nos.


No.
1. Memorandum of Appeal
2. Certified copy of the judgment in Complaint
No. 129/2016
3. Vakalath
4. Application Under section 5 of Limitation Act
5. Affidavit

Bengaluru
Date: .02.2019 ADVOCATE FOR APPELLANT
(SANATH KUMAR SHETTY.K)
13

BEFORE THE KARNATAKA STATE COMMISSION FOR


REDRESSAL OF CONSUMER DISPUTES AT BANGALURU

APPEAL NO. /2019

BETWEEN:

MRS. VEENA SHANTHARAM PRABHU


AND ANOTHER : APPELLANTS

AND

M/S. R.K. DEVELOPERS


& OTHERS : RESPONDENTS

INDEX

Sl. Particulars Page


No. Nos.
1. Application under section 5 of the
Limitation Act.
2. Affidavit.

Bengaluru
Date: .02.2019 ADVOCATE FOR APPELLANT
(SANATH KUMAR SHETTY.K)