Complaint filed on: 01.03.2012

                                                      Disposed on: 18.07.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

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

CC.No.456/2012

DATED THIS THE 18^th JULY OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SMT.N.R.ROOPA, MEMBER

Complainant/s: -                           

Mrs.Sahana A Hejmady,

w/o Mr.Ajithanand A Hejmady, Aged 31 years,

No.19/32, 2^nd floor,

5^th cross, Badrappa

Layout, Maruthi Nagar,

Bengaluru

By Advocates M/s.R.B.Aneppanavar Associates

V/s

Opposite party/s:-    

1. Ittina Properties (P) ltd.,

#1054, 7^th Main,

3^rd Block,

Koramangala,

Benglauru-34

Rep. by Mr.Manu Ittina

s/o I.Mahabaleshwarappa, Present Director,

Ittina Properties Pvt Ltd.

#380, Ittina center,

16^th main, 3^rd block, Koramangala,

Bengaluru-34

2. Smt.Manju Kathuria

w/o Mr.Virendra Katuria,

Aged about 51 years,

no.90/75, Sompura gate, Hosahalli Road,

Sarjapura Hobabli,

Anekal Tq.

By Adv.

Sri.H.R.Jayashekara Reddy

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainant has been alleging the deficiency in service in returning their paid amount of Rs.1,77,000/- without calculating the interest thereon against the clause 7 of the agreement and thereby has claimed the said interest amount of Rs.55,492.50 with interest and litigation charges.

          2. The case of the Complainant in brief is that both herself and her husband entered in to agreement to sell dtd.15.12.06 in favour of the Opposite party no.2/owner and Opposite party no.1/developer in pursuance of the joint development agreement dtd.02.12.04. The Opposite parties who offered the flat no.1 to them for Rs.11,75,000/- wide booking form dtd.18.11.06, later wide clause no.7 of the sale agreement, repaid Rs.1,77,000/- to them, but did not calculate the interest of Rs.55,492/- thereon. Hence their act amounts to deficiency in service and breach of trust and thereby both the Opposite parties become liable to pay that amount.

          3. The Opposite party no.1 filed the version admitting the execution of the sale agreement dtd.15.12.06 and repayment of the amount of Rs.1,77,000/- contending that the Complainant has not fulfilled the contractual obligations and hence she has no right to claim interest on the refund amount. Accordingly prays for dismissal of the complaint with costs.

          4. The Complainant and the officer of the Opposite party no.1 filed their affidavit evidences relying on Ex-A1 to A6 and Ex-B1 & B2 documents respectively. Written arguments were filed by the Complainant. Perused the records.  

          5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainant establishes the alleged deficiency in service by the Opposite parties in returning their paid amount of Rs.1,77,000/- without calculating the interest thereon against the clause 7 of the agreement ?  
2. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative

2) As per final order – for the following      

REASONS

          7. Consumer Dispute No.1: The undisputed facts reveal that the Complainant entered in to agreement to sell/Ex-A1 dtd.15.12.06 with the Opposite party no.1/Developer & Opposite party no.2/Land Owner towards the purchasing of flat no.1 of ground floor, measuring 707 sqft. for the sale consideration amount of Rs.11,75,000/-. The clause no.7 therein reads as here under:

          “7. The vendor shall not be liable for any delay in delivery of the apartment by reason of riots, strikes, transport strike, Government restriction or by reason of civil commotion or any act of God or due to any injunction or prohibitory order not attributable to any omission or commission of the vendor or condition of force majeure which are beyond the control of the vendor.

          The vendor shall be entitled to a reasonable extension of time for delivery of the apartment to the purchaser. However, in case of delay other than above, the vendor agrees to pay interest at 21% p.a. to the purchaser for every month of delay.

          8. The Complainant booked the said flat wide booking form Ex-A2 dtd.18.10.06, making advance payment of Rs.1,77,000/-. The said payments of Rs.1,30,000/- and Rs.47,000/- made through cheques were encashed on 21.10.06 and 28.10.06 wide Ex-A3 bank account extract. Balance amount of Rs.9,98,000/- was agreed to be paid at the time of execution of sale deed with possession of the flat wide clause 2(b) & 3. If the purchaser commits breach of agreement the Opposite parties would get right to forfeit the advance amount wide clause no.4. It was agreed to deliver the possession on or before October 2008.

          9. The Complainant has stated that Opposite party no.1 refunded the paid principal amount to her on 29.09.10 but without calculating the interest thereon.

          10. The clause no.7 says about payment of 21% interest per annum by the vendors only in case of delay other than the reasons stated in the above portion of the clause.

          11. The Complainant nowhere has stated with reference to the above upper portion of the clause no.7 to contend how the Opposite parties become liable to pay the interest. The said provision further empowers the vendors to seek reasonable extension of time for delivery of the apartment to the purchaser and towards this exclusion clause also the Complainant has not furnished the reasons.

          12. The Opposite parties have relied on the contents of Ex-A2 booking form, contending about the contractual obligation of the parties in case of nonperformance of their respective duties. Ex-A2 shows in bold letter in box as 30% deduction in case of cancellation.  Ex-A5 email of Complainant dtd.17.04.09 shows that the Complainant intended to cancel the booking earlier to 27.01.09 itself on the ground that she lost her hopes seeing the progress of the project. Ex-A5 shows that the Complainant was insisting for refund of the amount and the Opposite parties appeared to have been seeking extension of time on the grounds that the funds are being expected within 30 days. On what date she expressed her intention of cancelling the agreement is not established.

          13. The Opposite parties contended that the Complainant who voluntarily got the sale agreement cancelled disqualify from seeking refund of the amount itself, as the Opposite parties are empowered to deduct 30% of the total sale consideration amount which exceeds her deposited amount. The Opposite parties further contended that without insisting the said 30% of the amount and without deducting any portion of the deposited amount, they returned the entire amount to the Complainant, though there was no obligation and such mercy/leniency shown by them is being misused to file this case on untenable grounds.              

          14. Agreement to sell was executed on 15.12.06. The paid amount was taken back by the Complainant on 29.09.10. The Complainant nowhere stated that the construction was not completed. There is no allegation that the Opposite parties did not complete the construction and thereby there was inability on the part of the Opposite parties. It is not the case that the interest was calculated after taking in to consideration of the clause no.7 about the privileges of the Opposite parties. The Complainant has not stated about the reasons offered by the Opposite parties for delaying to handover the possession of the property. The 21% of interest utmost becomes payable on the date of the execution of the sale deed taking in to consideration the starting period of the accepted intentional delay. It cannot be calculated unilaterally by the Complainant from the date of assured delivery.

          15. Hence it is clear that the Complainant who was benefited by taking back the advance amount entirely after cancelling the booking was not subjected for the condition of deduction 30% of the total consideration amount and she still wanted to get the interest also in the absence of any such provision.  There is no cause of action to file this complaint for the reliefs sought for against the Opposite parties. Hence, the Complainant has failed to establish the Consumer Dispute no.1 and accordingly it is answered in the negative.

          16. Consumer Dispute No.2: In view of findings of the Consumer Dispute No.1 the Complainant deserves to get the following:

ORDER

          The CC.No.456/2012 filed by the Complainant is hereby dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 18^th July of 2017).

Copies of Documents marked on behalf of Complainant/s:

Copies of Documents marked on behalf of Opposite party/s