PER MR SUBHASH CHANDRA, MEMBER

        This consumer complaint under section 21 (a) (1) of the Consumer Protection Act, 1986 (in short, ‘the Act’) alleges deficiency in service by the opposite parties relating to financial loss and mental trauma.

2.     The facts in brief of the case as stated by the complainant are that he entered into an agreement for sale and construction on 20.09.2013 with M/s Habitat Pragnya Properties Pvt. Ltd., and booked a residential duplex flat no. 22 B, 1^st Floor of Tower 22 in Habitat Crest, Opposite to Zuri Hotel, Rajapalya Hoodi, Mahadevapura Post, Bangalore 560 048,  a project of the opposite party ad-measuring 2901 sq feet of super built up area,591 sq feet of landscaped area and proportionate share in common areas of 1375 sq ft along with two car parks in the basement for a sale consideration of Rs.1,77,54,500/-. As per the sale agreement, the said unit was to be handed over to the complainant by 30.06.2014. The booking amount of Rs.10 lakh was paid on 19.10.2013 and Rs.15 lakh was paid on 13.11.2013. The complainant obtained a loan of Rs.1,20,00,000/- from the opposite party no.2 (ICICI Bank) and Rs.1,08,00,000/- was disbursed on 28.10.2013 which was to be repaid over a period of 262 months.

3.     As the project was not completed by OP no.1, on 30.06.2014 and as there was inordinate delay in the project, the complainant pursued the matter with OP No.1. On 15.06.2015, OP no.1 demanded further deposits through a demand notice and the complainant states that he paid OP no.1 based on the work done. However, OP no.1 served a termination of agreement notice on 31.03.2017 which the complainant contested as untenable since he had promptly paid for all the works done. It is stated by the complainant that the notice dated 12.04.2017 was in violation of the arbitration clause in the agreement. In September 2017, the matter was settled between the parties and the complainant undertook to pay the balance amount and to take the possession of the residential unit. It is however, alleged that in October 2017, OP no.1 demanded an additional exorbitant amount towards interest, penalty charges etc., which was reiterated on 13.12.2017. Thereafter, on 04.04.2018, the complainant called upon bythe OP no.1 to refund the amount paid or to register the residential unit in his name. On 17.03.2018, OP no.1 conveyed to the complainant a proposal to return the loan amount of Rs. 1,08,00,000/- to OP no.2 and Rs.47,18,968/- to the complainant after deducting Rs.26,55,672/-. This amount was stated to be service tax and VAT paid to the Government. No proof of the same was, however,  provided to the complainant nor for the amount included as maintenance fee for which no contract had been signed. This proposal was not acceptable to the complainant as it was unjust and illegal according to him and this was conveyed to OP no.1 on 25.04.2018. In reply dated 02.02.2018, the OP no.1 proposed refund of Rs.49,02,288/- which according to the complainant indicates that the calculation of the OP was not based on correct accounts. It is stated that the club house of the project was handed over to the Habitat Crest Owners Association only in January 2018, i.e., after a delay of many years.

4.     On 31.05.2018 OP no.1 returned Rs.1,08,00,000/- to OP no.2/ Bank towards the loan account of the complainants which was accepted by them without intimating or seeking permission from the complainant since the complainant had been paying EMIs to the OP no.2 promptly and the loan was valid till 2035. The interest payable to OP no.2/ ICICI Bank till 2035 was Rs.67,34,933/- of which Rs.52,61,081/- had been paid till June 2018 leaving a balance of Rs.14,72,842/-. In August 2018, OP no.1 returned Rs.56 lakh as per clause 9.2 of the agreement for sale dated 20.09.2013. According to the complainant Rs.17,76,897/- had been deducted by them apart from reduction of interest and the complainant had settled for partial refund. It is contended by the complainant that he has suffered financial loss of Rs.1,43,03,095/- on various accounts as deducted as detailed below:

5.      He is therefore, before this Commission with the following prayer:

1. To direct the 1^st opposite party to pay a sum of Rs.1,43,03,095/- as compensation to the unfair trade practices and deficiency of service rendered to the complainant and an amount of Rs.15,00,000/- towards the mental agony suffered by the complainant;

2. To direct the 2^nd opposite party to pay a sum of Rs.25,00,000/- as compensation to the unfair trade practices and deficiency of service rendered to the complainant; and

3. Pass such other and further order (s) as this Hon’ble Commission deems fit and proper.

6.     The complaint was resisted by way of reply by OP no.1 who denied the allegations in the complaint. It was stated that the complainant had supressed the fact that a settlement agreement between the parties had been signed in July 2018 and the terms of the settlement had been complied with by the OP. The complaint was filed in 2019 but did not disclose these material facts. It was also stated that the complainant was guilty of non-joinder of necessary parties since the agreement for sale and construction dated 20.09.2013 was executed by the complainant and his wife, Mrs Kakoli Borah, whereas the present complaint had been filed not by the joint agreement holders but only by the complainant without any document to show that he had been authorised to file the present complaint on her behalf. As the complainant was not the sole and exclusive agreement holder, non-joinder of parties renders the complaint defective and liable to be rejected on the grounds of maintainability. OP no.1 has also contended that there was deliberate and wilful concealment and suppression of material facts and documents. It is contended that the complainant has failed to mention that he had failed to honour his financial obligation under the subject agreement which led to its termination on account of his deliberate refusal to pay the agreed upon sums at the successful completion of various milestones, despite receipt of demand notices. It is also contended that the complainant had admitted in his e-mail dated 04.04.2018 that he had deliberately delayed the property registration till March 2017 on account of in complete promised amenities. He had admitted that the requisite payment towards the milestones had been made on 19.10.2013, 13.11.2013, 30.12.2013, 22.01.2014, 06.03.2014, 28.05.2014 and 01.12.2014.

7.     Failure to make timely payments rendered him to be defaulter under the agreement and triggered the penalty clause under which the agreement was terminated. It is also submitted that the complainants cancelled the settlement agreement on 10.07.2018 and accepted the default in making timely payment. Under this settlement it had been agreed to refund Rs.55,97,743/- to the complainant and his wife and Rs.45,97,743/- was paid to the complainant and Rs.10 lakh to his wife on 02.08.2018. It is contended that despite the settlement the complainant had filed this complaint on 24.04.2019 and by providing an incorrect address had ensured that the opposite party remained unserved. Reliance is placed on the Hon’ble Supreme Court’s judgment in the case of New India Assurance Company Limited vs Hilli Multipurpose Cold Storage Pvt. Ltd., (2020) 5 SCC 757 with regard to limitation from the date of receipt of this notice. It is therefore, prayed that the complaint be dismissed.

8.     The complainant has filed his rejoinder. Parties have led their evidence by way of affidavit. OP no.1 also filed his written synopsis.      

9.     We have heard the complainant in person and the learned counsel for the opposite party and given our thoughtful consideration to the material on record.

10.   It is evident from the record that OP no.1 had failed to hand over the residential unit in question within the time frame indicated in the agreement of 30.06.2014. It is also evident from the record that the complainant had been a defaulter in making payments as per the demand notice issued to him from time to time. Be that as it may be, it is also manifest that there was a settlement agreement between the two parties dated 10.07.2018 as per which a sum of Rs. Rs.55,97,743/- was paid to the complainant and Rs.10 lakh was paid to his wife who were both joint signatories to this agreement. It is also evident that this complaint has been filed by the complainant and there has been no mention about the joint ownership with his wife or that the settlement agreement with the opposite party included her. The complainant has claimed a financial loss of Rs.1.43 crores under various heads which appear to be based upon his perception of losses.  In view of the fact that he was himself a defaulter in making payment and that the agreement with the OP no.1 stood terminated after due notice/ opportunity, the various claims by the complainant appear contrived and without basis. When the sale consideration for the residential unit in question itself was Rs.1,77,54,500/- and Rs.1,08,00,000/- obtained as a loan from OP no.1 had been remitted by OP no.1 and further Rs. Rs.55,97,743/- had been repaid to the complainant and his wife, calculating financial loss of over Rs.1.43 crores is clearly an attempt to inflate the loss in order to meet the pecuniary jurisdiction of this forum. In the instant case, the complainant has not been able to prove deficiency in service or unfair trade practice especially since there was a settlement agreement between the parties.  The Consumer Protection Act, 1986 is a benevolent legislation intended to benefit consumer who have grievances relating to unfair trade practice and deficiency in service at the hands of service providers/ sellers and manufacturers of goods.  The provisions of the Act cannot be used to convert a fortuitous event into a gratuitous event.

11.   While we are conscious that the complaint has been filed in person, it is notable that the complaint itself was filed through a counsel. Therefore, non-disclosure of the details of the settlement, receipt of the money deposited and non-joinder of his wife as co-complainant cannot be condoned.

12.   For the afore-stated reasons, the complaint is found to be without merits and is accordingly liable to be rejected. Accordingly, the complaint is dismissed with no order as to costs.