1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JULY, 2025 PRESENT THE HON'BLE MR JUSTICE S.G.PANDIT AND THE HON'BLE MR JUSTICE T.M.NADAF WRIT PETITION NO.27452 OF 2024 (GM-CON) BETWEEN: 1 . M/S NANDI BUILDER AND DEVELOPER NO.177/A, 22ND CROSS 7TH B MAIN, 3RD BOCK JAYANAGAR OPP. NMKRV COLLEGE BANGALORE - 560 011 2 . MR. K S MURALI S/O K M SATYANARAYANA SHETTY AGED ABOUT 53 YEARS PROPRIETOR M/S NANDI BUILDER AND DEVELOPER NO.177/A, 22ND CROSS 7TH B MAIN, 3RD BLOCK JAYANAGAR OPP NMKRV COLLEGE BANGALORE - 560 011 ... PETITIONERS (BY SRI. RAJESH A, ADVOCATE) AND MRS. SARASWATHAMMA W/O LATE A SURYA NARAYANASETTY AGED ABOUT 84 YEARS RESIDING AT NO.277, WEST OF CHORD ROAD 2ND STAGE,12TH A CROSS, MAHALAKSHMIPURAM BANGALORE - 560 086 … RESPONDENT (BY SRI. VARDHAMAN V GUNJAL, ADVOCATE) 2 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO i) ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION TO QUASH THE IMPUGNED ORDER DATED 27/05/2024 PASSED BY THE HON’BLE NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION, NEW DELHI VIDE ANNEXURE-A AND ALLOW THIS WRIT PETITION AND ALLOWING THE FIRST APPEAL NO.95/2017 FILED BY THE PETITIONER BY SET ASIDE THE FINAL ORDER PASSED ON 18/11/2016 IN COMPLAINT NO.214/2014 BY KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE AND; ii) GRANT SUCH OTHER RELIEF OR RELIEFS AS THIS HON’BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.07.2025 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, T.M. NADAF J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE S.G.PANDIT AND HON'BLE MR. JUSTICE T.M.NADAF CAV ORDER ( PER: THE HON’BLE MR JUSTICE T.M.NADAF ) This writ petition under Article-226 of the Constitution of India is by unsuccessful respondents / opponent parties calling in question the order dated 27.05.2024 passed by the National Consumer Disputes Redressal Commission, New Delhi (for short ‘National Commission’) vide Annexure-A and the order dated 18.11.2016 in Complaint No.214/2014 passed by the Karnataka State Consumer Disputes Redressal Commission, Bengaluru (for short ‘State Commission’) vide Annexure-D, whereby the National Commission except modifying the payment of rent at Rs.10,000/- per month, for 3 each apartment from 09.04.2014 to 17.02.2017 and at the rate of Rs.20,000/- per month per apartment from 18.02.2017 till handing over the possession of the same, after due rectification, of the said deficiencies, and in all other respondents confirmed the order passed by the State Commission. 2. A brief outline of facts leading to filing of the present petition are as under: Under a Joint Development Agreement dated 09.05.2012 (for short ‘JDA’) executed between the respondent herein and the petitioners, the petitioners have agreed to construct a multi-storied residential apartment offering respondent 50% of total super built- up area, along with proportionate car parking area, common area, terrace area, garden space and 50% of the benefits accrued from the project. 3. Under the said agreement, it was agreed that in exchange of 50% of benefits stated supra, the respondent has agreed to transfer, 50% undivided property share, right, title and interest. In furtherance of the JDA, the respondent executed a General Power of Attorney (for short ‘GPA’) in favour of petitioner No.1, in turn the petitioners have executed a sharing agreement in favour of the respondent entitling her to specific flats and car 4 parking areas. As there was default committed by the petitioners, the respondent approached the State Commission by filing a complaint being No.214/2014, seeking directions against the petitioners to handover 50% of super built-up area, car parking area, garden area and terrace as per JDA supra and rent at Rs.20,000/- per month for each apartment, damages and costs as well. 4. In response to the notice issued, the petitioners appeared and filed their statement of objections contending that the respondent is not a consumer as defined under Section-2(d)(ii) of the Consumer Protection Act, 1986 (for short ‘Act of 1986’). The JDA has been executed in furtherance of MOU dated 14.03.2012, in the said MOU, there is a clause for referring the matter to arbitration. Further contended that they have agreed to hand over 50% of super built-up area, however, the delay caused is due to the respondent not producing original documents for obtaining sanction plans and licenses, as well as force majeure such as, lorry strike and other related situations, in ongoing project. Despite the problems faced by the petitioners, they have completed the construction. However, on repeated requests, the respondent has not come forward to take possession of the property. They further denied the assessment of rent at 20,000/- per month for each flat. 5 5. So far as the sharing agreement is concerned, the petitioners stated that they have acknowledged their obligation to handover the specific flats and car parking spaces, but asserted that the share of the respondent was ready for delivery of possession, but there is a failure on the part of the respondent to take delivery of possession. They have contended that there is no cause of action for filing the complaint. 6. The State Commission, considering the pleadings as well as evidence both oral and documentary, proceeded to allow the complaint in part by its order dated 18.11.2016, with the following directions: "ORDER” The Complaint is hereby allowed with cost of Rs.25,000/- The OPs are hereby directed to complete the project by rectifying the lapses that are narrated in the Commissioner Report and to handover 50% of the super built up area as agreed in the Joint Development Agreement along with 50% of car parking area, 50% of garden area and 50% in terrace as described in the schedule. The complainant is entitled to recover rent at the rate of Rs.15,000/- per month for each apartment from 09.04.2014, till the date of handing over of the possession 6 of the same by rectifying the mistakes that are pointed out in the Commissioner Report. The OPs are directed to comply with the order within a period of three months from the date of receipt of the order." 7. Aggrieved by the order passed by the State Commission, both the petitioner, as well as respondent preferred separate appeals being F.A.No.95/2017 and F.A.No.2031/2018. The petitioners in appeal F.A.No.95/2017 sought to set-aside the order passed by the State Commission, whereas the respondent in F.A.No.2031/2018 sought for a direction to pay a sum of Rs.40,00,000/- along with interest @ 18% per annum from the date of filing of the complaint, till the date of actual payment, which is balance goodwill amount payable to the respondent as per clause-2 of MOU dated 14.03.2012, so also for enhancement of rental amount awarded by the State Commission from Rs.15,000/- to one lakh. 8. By a common order, the National Commission disposed of both the appeals, partly modifying the rate fixed towards rent by the State Commission. This petition is filed only against the appeal filed by the petitioners before the National Commission. The petitioners before the National Commission have again contended 7 that the respondent is not a consumer, within the definition provided under the Act of 1986 and there is an arbitral clause provided in the MOU dated 14.03.2012, and contended that the State Commission has failed to consider the same and sought to allow the appeal. 9. So far as the delay in construction is concerned, they have urged the very same grounds, as they have urged before the State Commission. The respondent herein contended before the National Commission that the petitioners owe the respondent a sum of Rs.29,52,434/- as on the date of delivery of possession of four flats on 26.06.2018. Further, after the said order, the petitioners- builders made a partial payment of Rs.1,00,000/- by way of Cheque bearing No.76951, dated 26.11.2079 and Rs.2,00,000/- by Cheque No.07967 dated 29.12.2017 and also deposited a sum of Rs.7,20,000/- before the State Commission in Execution No. 30 of 2017 and sought to dismiss the appeal. 10. The National Commission, in view of the law laid down by the Hon'ble Apex Court in the case of M/S. IMPERIA STRUCTURES LIMITED Vs. ANIL PATNI AND ANOTHER1 held that the remedies under the Act of 1986 are in addition to the 1 (2020) 10 SCC 787, dated 02.11.2020 8 remedies available under the Special Statutes. So also, stating Section-3 of the Act of 1986 which provides that the provisions of this Act shall be in addition to and not in derogation of any other law for the time being enforced. Further, referring to the order of the Commission in AFTAB SINGH vs. EMAAR MGF LAND LIMITED AND ANOTHER in Consumer Case No.701 of 2015, vide Order dated 13.07.2007 (which was upheld by the Hon’ble Apex Court) held that the ‘Arbitration clause in the buyer's agreement does not bar the jurisdiction of the Consumer Fora. Accordingly, rejected the contention of the petitioners that the complaint is not maintainable in view of the arbitration clause. 11. So far as the argument on delay, the National Commission referring to its order in SIVARAMA SARMA JONNALAGADDA AND ANOTHER Vs. M/S. MARUTHI CORPORATION LIMITED & ANOTHER, decided on 21.09.2021, held that the ground of force majeure is not available to deny the delivery of possession and amounts to deficiency of service and unfair trade practice. So far as the contention that, the respondent is not a consumer, the National Commission relying on the judgment of Hon'ble Apex Court in the case of BUNGA DANIEL BABU Vs. M/S. SRI, VASUDEVA CONSTRUCTIONS AND OTHERS in Civil Appeal No.944 of 2016 decided on 22.07.2016 held 9 that a person who is a party to a MOU for construction and JDA comes within the purview of definition of ‘consumer’ and they can invoke the provisions under Act of 1986. The National Commission after considering the entire case materials held that there is a deficiency on the part of the petitioners. However, taking into consideration the fact that there is no document produced on record to establish the rates of rent in the area, proceeded to pass the order confirming the judgment of the State Commission by its order dated 27.05.2024, except with some minor modification towards rent, which we reproduce as follows: “ORDER I. The Opposite Parties are directed to complete the project after duly rectifying all deficiencies listed in the Court Commissioner Report and to handover the Complainant 50% of the super built up area as per the Joint Development Agreement along with 50% of car parking area, 50% of garden area and 50% in terrace as described in the schedule, within a period of two months from the date of this order, unless already handed over. II. The Opposite Parties are directed to pay Complainant. compensation in the form of rent @ of Rs.10,000/- per month per each apartment from 09.04.2014 to 17.02.2017. Further rent @ Rs.20,000 per month per apartment from 18.02.2017 till the date of handing over of 10 the possession of the same, after due rectification of the said deficiencies. III. In the event of the apartments not being handed over till date, the OPs are directed to handover the possession of the property as per (1) above within a period of two months from the date of this order and the rent liability from the date of this order shall be @ Rs.50,000 per apartment per month till the date of handing over. IV. The OPs are also liable to pay the Complaint Rs.50,000 as costs.” 12. Calling in question both the orders passed by the State Commission as well as the National Commission, the petitioners have filed the present petition. 13. Heard Sri.Rajesh.A, learned counsel for the petitioners and Sri.Vardhaman V. Gunjal, learned counsel for the respondent. 14. Sri.Rajesh, taking us through the papers produced in the writ petition, has submitted that as per clause-21 of the JDA, both the State Commission and National Commission, has no jurisdiction to entertain the complaint, as there is a remedy provided by way of specific performance of contract and so far as the claim of recovery of money for the losses and damages caused, the respondent has to approach Competent Civil Court by paying necessary court fee to the same. He has further submitted that the National Commission 11 having observed on the Court Commissioner’s Report that the flats are by and large complete when the Commissioner visited the spot and only minor aspects listed therein were pending, erred in holding that there is deficiency of service and directed the petitioners to pay the rent at a reduced rate. He submits that both the State Commission, as well as the National Commission failed to consider that as per the commissioner report, the flats are ready for delivery of possession, but with certain minor aspects which requires the permission of respondent to make good. However, it is the respondent who is not coming forward to take the delivery of possession and sought to allow the petition setting-aside the orders impugned and dismiss the complaint. 15. Sri.Gunjal with all vehemence contended that the petitioners made the respondent, an octogenarian, to run around pillar to post to seek for her rightful claim under the JDA. As per the JDA, The petitioners ought to have completed the construction by October’2013, with another 6 months as grace period, i.e., on or before 09.04.2014. However, till date they have not handed over the possession. For the past 11 years, the respondent who has seen 74 summers as on the date of filing of the complaint, was made to run around commission after commission to get her rightful claim, now she is aged 85, an octogenarian, with all age-related 12 infirmities. Both State Commission as well as National Commission, after considering the materials on record, have come to a irresistible conclusion that there is a deficiency of service in handing over 50% of super-built up area as per the JDA, along with 50% car parking area, 50% garden area and 50% of terrace as prescribed in the schedule. Both the Commissions are in concurrence so far as delay in handing over possession of the property, rightly directed the petitioners to pay rent in respect of each apartment from 09.04.2014 till the date of handing over possession. There are no infirmities in the orders passed by both the commission and accordingly sought to dismiss the petition. 16. Having heard the learned counsel for the parties and perused the entire writ petition papers, the only point that would arise for our consideration is: “Whether both the petitioners have made out a case, which calls for interference of the orders impugned at the hands of this Court? 17. Our answer to the above point is in ‘negative’ for the following reasons: The admitted facts are that there is a JDA and earlier to that there is a MOU, where under the petitioners have agreed to construct a multi-storied apartment by October’2013, with a grace 13 period of 6 months, thus on or before 09.04.2014, to complete the project and hand over 50% of share i.e., 4 flats to the complainant along with other emoluments stated supra. As per the orders passed by both the Commissions, there is no delivery of possession of the flats. The contention of the petitioner is that the Commission lacks jurisdiction on the ground that there is a clause for specific performance of contract, is to be rejected, in terms of the law laid down by the Hon'ble Apex Court in the case of IMPERIA STRUCTURES supra wherein the Hon'ble Apex Court has held that the remedies under the Act of 1986 were in addition to the remedies available under the Special Statutes. That apart, Section-3 of the Act of 1986 clearly envisages that the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force. 18. In that view of the matter, the contentions of the learned counsel for the petitioners that there is a clause for specific performance and so also for recovery of amount, the respondent has to approach the appropriate forum, by paying appropriate court fee have no legs to stand and accordingly rejected. 19. In view of the concurrent findings recorded by both the Commissions, so far as the deficiency is concerned, the judicial 14 review by this Court under Article-226 of the Constitution of India is very limited. We find that both the Commissions have properly adjudicated the lis between the parties relying on the judgments of the Hon'ble Apex Court, stated supra, holding that there is a deficiency of service and negatived the contentions of the petitioners regarding force majeure etc. We find no infirmities in the order passed by both the Commissions. 20. The petitioners despite under JDA to construct the building by October’2013 with a grace period of 6 months ought to have completed the constructions by 09.04.2014 and delivered 50% of the Super-Built-up area along with other emoluments. However, as could be gathered from the records, the petitioners instead of handing over the possession started alienating the properties in favour of others. Though a contention has been taken that they have alienated the properties which fallen to their share, clearly shows that the petitioners with a deliberate intention to harass a lady, a widow an octogenarian, made her run around commission after commission and now before this Court, for her rightful claim, amounts to abusive of process of law. The petitioners ought to have honored their commitment when they have taken property way back in the year 2012 or atleast in 2014. But the stage is same despite 13 years have passed. In these circumstances, we feel that the 15 petition should be dismissed with exemplary cost which shall not be less than Rs.1,00,000/- (Rupees One Lakh Only). Accordingly, we proceed to pass the following: ORDER i) Petition fails and stands dismissed with cost of Rs.1,00,000/- (Rupees One Lakh Only) payable to the respondent within a period of four weeks from the date of this order. ii) If the cost is not paid within the period, the Registry is directed to issue a Certificate as arrears of land revenue, recover the cost within four weeks and release the same in favour of respondent on proper identification. Sd/- (S.G.PANDIT) JUDGE Sd/- (T.M.NADAF) JUDGE JJ CT: BRS