Date of Filing:27.09.2021

Date of Disposal:16.06.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,  PRESIDENT

1. The complainants files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OP to refund amount of Rs.26,76,446/- along with 18% p.a. interest and Rs.8,10,405/- and Rs.5,00,000/- towards damages  and such other reliefs.

2.   The following are the complaint's key facts: 

This is the case of the complainant that the complainant being interested in purchasing an apartment in a property developed by OP of an apartment complex known as “Commune-1” on land bearing sy.no.477/4, 478/A2, 479/A & 480/3of Marasur village, Anekal Tq., Bengaluru South Dist.The complainants decided to purchase apartment bearing unit no.101008, Tower–A, having super built up areaof 765.00 Sq.ft and undivided share of 279sq.ft in schedule-A property along with 01 car park. The complainant on 20.10.2015 made booking amount of Rs.1,00,000/- and OP have acknowledged the same. The OP were provided price list, in accordance to which the total cost of the apartment was valued at Rs.29,33,218/-, which had to be paid upon completion of the certain milestones therein. On 21.12.2015 the complainant entered with agreement of sale with OP. The complainants obtained loan from HDFC for an amount of Rs.25,00,000/- for the purchase of flat and entered tripartite agreement with them. The complainant further submits that the OP has raised demand notes for an amount Rs.26,76,446/- and the complainant has paid Rs.26,20,392/-, in which Rs.15,94,908/- has been disbursed by the Bank and Rs.10,25,484/-has been paid by the complainants themselves. It is further submitted by the complainants thatthe OP was required to handover the apartment on 31.10.2016, but the OP miserably failed to hand over the apartment. It is further submitted that as per clause-10 of the agreement, in case the OP fails to deliver the apartment as per terms of agreement the complainants are eligible for a delay compensation of Rs.6/- per sq. ft. per month from the date of such delay. An account of delay caused by the OP, complainants sought for termination and cancellation of agreement vide email dt.04.08.2019, but the OP have not responded to the email. Due to the act of the OP, the complainant got issued legal notice dt.22.03.2021 expressing theirintention to terminate the agreement for purchase of apartment and further seeking a refund of theamount paid by the complainants along with interest. Despite of receipt of legal notice, the OP have failed to respond the legal notice and also not refunded the amount paid by them. Aggrieved by the act of the OP, the complainants were forced to file the present complaint seeking refund of amount and such other reliefs.

3. Notice to OP-duly served, represented by counsel and filed written version along with chief examination affidavit and relevant documents in support of their contention.

4.  The complainant filed chief-examination affidavit along with relevant in support of his contention.

5.  Heard arguments. The matter is reserved for order.

6.  The points that arise for our consideration are;

1. Whether the complaint is barred by Limitation?

2. Whether the Complainant prove that there is deficiency in service on the part of the OP as alleged in the complaint and there by prove that he is entitle for the relief sought?

3. What order?

7. The findings on the above points are as under:

Point No.1                : Affirmative

Point No.2             : As per the finding given in point no.1, point no.2 does not arise for consideration.

Point No.3                :As per final order

REASONS

8. POINT NO.1:-   From the perusal of contention of OP and also by taking note of the facts of the complaint, it is observed by the commission that  at para-13 of the version statement,  the OP has taken contention that on the same cause of action as against OP the complainant along with other members of the home buyers association have initiated legal proceedings before the Hon’ble RERA in  Comp. No.CMP/210233/0007613 and other connected cases. Wherein, the associations of complainant and its members have initiated the legal proceedings before the said authority. The contention of OP that aforesaid complaint before the Hon’ble RERA against OP and the complainant along with other  co-buyers have formed association and they have initiated legal proceedings by seeking relief which is one and the same in the complaint. The OP has contended that the present complaint  is hit by principles of restudicata. On that OP pray for dismissal of the complaint and the copy of the RERA is produced and it has been marked as Annexure-A.  The relief which is claimed by the complainant along with other members as against OP both in RERA and the present  complaint before this commission is one and the same and the allegations which is made as against OP company is also one and the same. The present complaint is filed subsequent to the said RERA proceedings. When the complainants along with other co-members have already initiated RERA proceedings as against the OP company which is prior to the initiation of the present proceeding. When the complainant seeking the same relief in both the proceedings and when it is against the same OP and when the complainant is also making same allegations as against the OP pertaining to the construction of said property. When the RERA proceedings is pending before the authority for consideration, the question of the maintainability of present complaint arises for consideration. This statute constituted  both RERA and District Consumer Commission for redressal of the grievance of the aggrieved party. Both proceedings are parallel in nature, when the complainant has already initiated proceedings against OP and when it is pending for consideration before RERA Authority, the initiation of  subsequent complaint before District Consumer Commission is not maintainable. For the reasons that the relief which is sought by the complainant in both the proceedings is one and the same and it is also against the same OP. And from the facts of the complaint it appears that the allegations which is made as against OP is also one and the same. When such being the case, the present complaint deserves to be dismissed as not maintainable.

9. In view of the above discussion and on considering the facts of the case and also by taking note contention of both the parties and also by examining annexure–A & B documents which is produced by the OP, the commission is of the definite opinion that the present complaint will have to be dismissed as it is not maintainable before the Commission for the above reasons.

10.  In the light of the above discussion, the complaint deserves to be dismissed as it is not maintainable. Accordingly, the Point No.1 we answer in Affirmative.

11. Point No.2:  As per the finding given in point no.1, Point no.2 does not arise for consideration.

12. POINT NO.3:- In the result, we passed the following:

                             ORDER

1. The complaint is hereby dismissed as not maintainable. No costs.
2. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 16^th  June 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)                 (CHANDRASHEKAR S.NOOLA)       

                 MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Sri Manjit M.Pillai-who being the complainant No.1

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Nil

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*