ORDER

SMT.NANDINI.H.KUMBHAR, MEMBER

1. The Complaint is filed by the complainant under section 35 of the C.P.Act, 2019 against the OP alleging deficiency of service directing the OP to refund a sum of Rs.8,23,880/- along with interest at 12% p.a. from the date of payment till entire payment is made to the complainant and also direct the OP to pay compensation of Rs.1,00,000/- towards mental agony and inconvenience and Rs.1,00,000/- towards cost of proceedings and such other reliefs.

2. The brief facts of the case is as follows:

           This is the case of the complainant that in the month of February-2019  with an intention to purchase apartment in the residential apartment at “Godrej Aqua Project” the complainant approached OP and subsequently on 16.02.2019 an application has been generated through website for Sale order. As per Sale order dt.16.02.2019, sale consideration for the said property Rs.83,93,038/- is fixed including taxes.
Accordingly,  in terms of Sale order, the complainant has paid 10% of Sale consideration amount i.e.Rs.8,23,880/- and the complainant has to pay the balance amount on the  basis of construction milestones. The complainant submits that as per sale order dt.16.02.2019, the OP have issued Allotment Letter dt.02.03.2019 allotting apartment/flat No. “G-404” on the 04^th floor of the property named as “Godrej Aqua G Wing” in “Godrej Aqua-Phase-I” by re-iterating the terms and conditions of Sale order. The complainant submits that after receiving allotment letter, on verifying the documents the complainant noticed that a part of dispute in O.S.73/2019 pending before the Hon’ble Devanahalli Court and the complainant intimated to the  OP regarding the same, but the OP claimed that the litigation has no bearing on the property and that the dispute would be resolved at the earliest  and the OP have failed to explain why the pendency of the litigation was not made known to the complainants. The complainants submits that in the meanwhile the complainants have faced personal and financial problems and OP has issued termination letter dt.26.11.2019 to the complainant stating that as per  Allotment letter/Application form, the complainant did not come forward for completion of registration OP communicated through email dt.26.11.2019 also to the complainants that the advance amount paid by the complainants stood forfeited in terms of allotment letter/application form. The complainant submits that the property in question is under litigation and the OP have not disclosed the existence of litigation on the said property and have falsely represented to the complainants that the property is free from encumbrances. Due to the  act of the OP, the complainant got issued legal notice on 26.04.2023 calling upon the OP to refund the application amount of Rs.8,23,880/- along with interest at 12% p.a., but despite of receiving notice the OP has not made out any efforts in resolving the dispute or replied to the notice. Aggrieved by the act of OP the complainants filed the present complaint seeking  relief as prayed in the complaint.

3.  Notice to the OPs duly served, represented by counsel filed written version and affidavit along with relevant documents in support of their defense.

4. Complainant filed chief examination affidavit by re-iterating the complaint allegations and also filed relevant documents in support of their plea.

5.  Heard arguments and matter is reserved for orders.

6. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OP as alleged in the complaint and thereby prove that they are entitled for the relief sought?
2. What order?

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

Point No.1           :       Partly Affirmative.

Point No.2           :       As per final order.

REASONS

9. POINT NO.1:- The OP represented by counsel filed written version, wherein they denied entire complaint allegations and also denied any deficiency of service on their part. As per the OP submission, the 1^st contention taken by the OP is  that, as the complaint is barred under section-69 of C.P. Act and the OP is a promoter of a housing property named as “Godrej Aqua Project” and duly registered with Karnataka RERA.  The said project has commenced on 18.01.2019 and the possession was due to be handed over on or before 13.07.2024. The complainants approached the OP  and collected details and after explaining about the booking application by the OP team. Subsequently, the complainant entered into the application form and signed across  every page of the application indicating their consent to all the terms and conditions. The OP stated that, as per clause of the application/booking form lays down the complainant had paid a sum of Rs.8,23,880/- as on February-2019. After that, despite of several reminders and even over mail to the complainants, the complainants at no point of time come forward to register the agreement of sale. Therefore, the OP was forced to issue the communication dt.26.11.2019 terminating the booking and forfeited the amount paid as per agreement terms, but the OP received email from the complainant dt.11.09.2023 stating that complainants are likely to exit from the project without any penalty as he had suffered a job loss. The  OP is still ready to register, but the complainants did not come forward to register the Agreement of Sale. With no other  option,  the OP had terminated the  booking by  forfeiting the amount as per   the agreed terms. The OP states that, at no point of time did  the complainant raise any discrepancy or query with the OP about there being litigation till the legal notice was issued. The OP has at all times submitted details pertaining to the Karnataka RERA and at  no point of time has the litigation affected the project or the right of any of the allottees. The complainants are using the purported litigation to seek a refund, as they are aware that they are not entitled to any refund as per terms and conditions. Hence, prays for dismissal of the complaint as there is no deficiency of service on their part.

10. The complainant filed chief examination affidavit by re-iterating the entire complaint averments that on the basis of marketing presentation and the promises made by the OP which are also re-iterated on their website and declared before the RERA, the complainants registered for allotment of the said project through an application form dt.16.02.2019 and as per the Sale consideration for the said property the complainants made booking payment of 10% of consideration amount Rs.8,23,880/-. It was agreed that remaining amount would be paid to the OP on the basis of construction milestones and thereafter allotment letter was issued to the complainants on 02.03.2019 and also acknowledged the 10% being booking amount and balance sale consideration to be received by the OP as per the payment schedule agreed upon by both the parties.

11. Further submitted upon  receiving the allotment letter from the OP, in the meantime while arranging funds for making further payment as agreed, the complainant came to know that, the property herein as a part of dispute in O.S.73/2019 pending before the Hon’ble Devanahalli court. When the complainant communicated with the OP, but  the OP has concealed  the existence of the litigation and mislead  the complainants  and failed to explain the same. While the complainants were coming to terms with the said development, unfortunately  the 1^st complainant lost his job under unfortunate circumstances. Meanwhile, the complainant issued  a termination letter and OP has also  forfeited  the booking amount for unjustified reasons. In the facts and circumstances above, the complainant got issued legal notice calling upon them to refund of advance amount paid by the complainant. Despite of receiving the said notice, the OP has not atll made any efforts in resolving the dispute. Aggrieved by the act of the OP, the complainant initiated the present complaint seeking refund of the amount along with other reliefs.

12. In view of the above discussion, by considering the facts of the case and also by looking at the contention of both the parties and documents placed on record, by considering the pleading of the complainant, the commission come to the conclusion that, the complainant had paid 10% booking amount of sale consideration amount to the OP. It is also observed that after booking the said project, for the personal reason, when the complainant cancelled the said flat and requested to refund the 10% advance amount  of Rs.8,23,880/-, but OP has  failed to  make refund of the payment made by the complainant assigning the reason that as per  terms and conditions of the proposal form, the OP’s claim stood forfeited by issue of termination letter.

13. In view of the above, we hold that  there are certain factors or reasons the buyers  proceed to cancel after booking with the builders  and buyers having second thoughts or reasons about his choice. In this case, complainant sought for cancellation of the property for the reasons stated in the complaint, that purchasing an immovable property is a once in a lifetime decision for complainants and they were at loss of words to realize that his hard earned money would be embroiled in  a property that was a subject matter of litigation. Also the complainant no.1 lost his job under unfortunate circumstances, during  which time   OP has forfeited the above amount paid by the complainant  by sending termination letter dt.26.11.2019. Thus, what can be referred from the written version of OP is  that, as per clause-3 of the said communication, amount paid by the complainants were forfeited in accordance with the terms and conditions agreed between the parties. In this regard, the commission relaying on the judgment rendered by Hon’ble Supreme Court of India  in a case between Pioneer Urban Land and Infrastructure Ltd V/s Govindan, in which it is held that, incorporating  one sided stipulations  into a builder-buyer agreement is considered as  an unfair  commercial conduct. The Apex court further noted that a builder should not attempt to bind a buyer with unfair contractual provisions. When the complainant  communicated  to OP, but the OP has concealed the existence of the litigation and mislead the complainant and failed to explain the same. While the complainants were  coming to the terms with the said development, unfortunately the 1^st complainant lost his job under  unfortunate circumstances. Meanwhile, the complainant  issued a termination letter and OP has also  forfeited the booking amount for unjustified reasons. In the facts and circumstances as above the complainant  got issued legal notice calling upon to refund of advance amount paid by the complainant. Despite receiving the said notice, the OP has not made any efforts in resolving the dispute. Aggrieved by the act of the OP, the complainant initiated the present complaint seeking refund of the amount along with other reliefs.

14. In view of the above discussion and upon considering the facts of both the parties, we hold that, rejection of complainant’s claim to refund the advance booking amount towards the property cannot be repudiated and rejection of complainant  claim is not justified under the law. The complainant expressed the reason for cancellation of the said property, but the OP refused to refund the said booking amount. It is pertinent to note that, the reasons for cancellation of said flat which is communicated prior to payment of further instalment, the  OP cannot forfeit the booking amount. The commission found that, the clause used by the OP is  completely biased, unfair and unjustified could not be appreciated. Another contention of OP that, the complaint is barred by limitation under section-69 is liable to be dismissed as the complainants approached the commission after  lapse of 04 years from the termination letter dt.26.11.2019. The contention of OP cannot be accepted for the reason that, since the cause of action to the complaint to file the complaint is continuity of cause of action. As long as the amount is not refunded to the complainant, the cause of action continues.

15. In view of above and by considering the contention of the complaint, on perusal of documents produced, the commission has come to the conclusion that the OP is held liable to refund the amount to the complainant with other reliefs.Accordingly, we answer Point NO.1Partly in affirmative.

16. POINT NO.2:- In the result,  for the forgoing reasons, we passed the following:

ORDER

1. The complaint is hereby allowed in part.
2. The OP is directed to refund an amount of Rs.8,23,880/- with interest at 8% p.a. from the date of last payment till the date of refund to the complainant.
3. The OP is further directed to pay compensation of Rs.50,000/- towards deficiency in service and Rs.20,000/- towards  pain and sufferings together with cost of litigation of Rs.10,000/- to the complainant within 45 days of from the date of this order, failing which OP is liable to pay interest on the said amount at the rate of 6% p.a. from the date of order till payment is made to the complainant.

4.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 26^th June  2024)

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                   (SHRINIDHI.H.N)            

                 MEMBER                                             MEMBER

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

Sri Sridhar.S.S- Who being the complainant No.1.

Documents produced by the complainant:

Witness examined on behalf of the OP way of affidavit:-

Smt.Nisha Mohan- Who being the Manager of OP

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                 (SHRINIDHI.H.N)            

           MEMBER                                 MEMBER

 SKA*