BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 09^TH DAY OF JUNE 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to refund the entire amount of Rs.96,63,827/- as on 06.05.2017 with interest at 18% p.a., from 06.05.2017
2. Direct the OP to pay compensation an amount of Rs.10,00,000/- for grave financial loss, mental agony and suffering.
3. Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

It is the case of the complainant that the OP had outlined a new project under the name of Pashmina Waterfront in the year 2014.  The OP had secured a building construction plan from BBMP vide LP No.146/2010-2011 dated 27.08.2012 for construction of residential apartment building consisting of five towers identified as T1, T2, T3 and T4 and each tower comprising of three basements and 31 up floors, the entire plan is recognized under the name Pashmina Waterfront.

3. The complainant has signed an application form on 30.06.2014 for purchase of flat No.T2A, 13^th Floor, Type A, at the time of application the date of delivery had been assured as 30.06.2015 by the OP. Pursuant to the aforementioned application, the complainant has allotted flat No.T2A, 13A, Tower No T2A at 13^th Floor, 3BHK, 1916 sq. feet for a total amount of Rs.1,09,63,427/- vide allotment letter dated 30.06.2014 following which an agreement to sell and construction agreement was executed between the parties.
4. The complainant has secured loan from HDFC Bank for the purchase of the said flat and with respect to the same a tripartite agreement was executed between HDFC Bank, the complainant and the OP.  The complainant has paid a total amount of Rs.96,63,827/-, as on 06.05.2017 to the OP.  However even after a delay of more than two years the OP had miserably failed to deliver the flat.
5. It is further case of the complainant that the delay on the part of the OP to deliver the flat to the complainant clearly amounts to deficiency of service. Hence the complainant has filed this complaint for refund of the amount.
6. In response to the notice, OP appears and files version. It is the case of the OP that the apartment project has been completed the statutory body after inspection of the project had issued the occupancy certificate on 29.06.2019 certifying residence of the building. The complainant has not taken possession of the apartment and has initiated these proceedings her refund of the money suppressing his true motives thereby committed breach of contractual agreements.
7. It is further case of the OP that the complainant has delayed the payment of monthly installment amount for the construction of the apartment despite the delay in payment by the complainant, this OP has completed the project by borrowing loan from various third party sources to compete the apartment processes. The complainant is yet to remit the full sale consideration amount of Rs.1,09,63,427/- along with other statutory dues and interest as applicable after deduction of Rs.96,63,827/-.  This OP has completed the construction of the apartment and has delivered its obligation under the agreement. This OP on many occasions intimated the complainant regarding handing over of the apartment after the occupancy certificate dated 29.06.2019 was issued. Despite their requests the complainant has not paid the balance and taken the possession of the apartment which has been completed as per specification.
8. It is further case of the OP that the complainant has not complained about the construction of the completed apartment. Hundreds of owners have taken the possession their respective apartment in the project and many owners have also registered their apartment in the said project which would prove that the project and its facilities are complete. There is no hindrance for the complainant to reside in the apartment. There is no cause of action to the complainant to file this complaint for refund of the amount, since the agreement have not been terminated even as on 06.07.2020 or on the date either by the complainant or on the OP. the delay has been condoned by the complainant over the years. Hence there is no justification for the complainant to demand refund of the money after the apartment has been constructed and occupancy certificate has been issued by the competent authority.
9. It is further case of the OP that there is no provision in the agreement for refund. The complainant require to perform the agreement pay the balance amount take possession and have the apartment register in his name as defined in the agreement. This OP has performed and delivered its obligations as mentioned in the agreement. As there is no provisions of refund of money are not available in the agreement the complainant is at liberty to assign his rights or seek for sale of the apartment to any third party after completing his obligations to the OP. There is no hardship or loss to the complainant and the complainant would benefited from such endeavors. This OP is not liable to refund Rs.96,63,827/- or interest @ 18% p.a., and he is not liable to pay the compensation.  This OP as per the terms of the construction agreement fails to complete the construction within the specified period together with grace period of six months then for such delay this OP would be liable to pay Rs.10,000/- per sq. feet of sale area per month of delay till delivery provided the purchaser has remitted and paid all the balance sale consideration as per agreement. The complainant has not been paid the entire balance amount to this OP.
10. It is further case of the OP that it I false to say that the agreement is one sided. While signing the sale agreement and construction agreement the complainant and his advocate has discussed with representative of  OP and after having complete satisfaction and knowledge of contents of agreement the complainant decided to sign the agreement. Accordingly the construction agreement was executed by both the parties without any aspect of coercion, inducement and fraud and misrepresentation. The complainant now cannot say that the agreement were arbitrary and one sided and he cannot seek additional compensation, as he had specific knowledge of the construction agreement.
11. It is further case of the OP that due to force majeure events like sanctioning of licenses, plans by the statutory bodies, and time was lost in excavating hard granite rocks to commence laying of foundation for construction of building and towers and due to heavy rains and harsh weather, late payments received from prospective purchasers, shortage of sand due to the complete ban of sand mining and the direction of the government to use M-sand alternatively and shortage of M sand and demonetization, shortage of raw materials due to implementation of GST and non availability of labours.
12. It is further case of OP that there is no deficiency of service or deviation of funds and this OP has utilized the amounts paid by the complainant for construction of apartment.  The complaint is not maintainable and the complainant has not come with clean hands. Hence the OP prayed for dismissal of the complaint.
13. The complainant has filed his affidavit evidence and relies on 11 documents.  Affidavit evidence of official of OP has been filed and OP relies on 14 documents.
14. Heard the arguments of advocate for the complainant only.  No oral argument is advanced on behalf of OP.  Perused the written arguments.

15. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

16. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

17. Point No.1 AND 2: These two points are inter related and hence they have taken up for common discussion.  We have perused the allegations made in the complaint, version, evidence and documents filed by both the parties.
18. The complainant has booked the flat No.T2A 13^th Floor, in the project initiated by the OP namely “Pashmina Waterfront” on 30.06.2014.  Complainant agreed to purchase the said flat for a total sale consideration amount of Rs.1,09,63,427/-.  He has entered into sale agreement and construction agreement with the OP on 30.06.2014.  The complainant has paid an advance amount of Rs.5,00,000/- on the same day. In addition to this the complainant has secured loan from HDFC bank, the tripartite agreement was executed between the complainant, OP and the bank.  The complainant had successfully paid all the EMIs and he has already clear the loan secured for purchase of the said property.  As per the construction agreement entered between the complainant and the OP, the sale consideration amount was fixed at Rs.62,90,152/- and as per the agreement to sell the consideration amount is Rs.28,74,000/- and the total consolidated sale consideration including the miscellaneous payments is equivalent to Rs.96,63,827/-.  As per the terms of the clause 6 of the agreement, the OP has to deliver the possession of the flat on or before 30.06.2015 with grace period of six months.  Even though the OP has received the substantial amount towards sale consideration has failed to complete the project within 30.06.2015 and failed to hand over the possession of the flat.  When the OP has failed to hand over the flat the complainant has waited till 2020 and he has approached this commission by filing this complaint.
19. In support of his contention the complainant has produced the document No.1 is the unit application form, and document No.2 is the letter issued by the OP calling the complainant for execution of agreements, document No.3 is the agreement to sell and document No.4 is the construction agreement, document No.5 is the allotment letter and as per document No.5 the complainant was allotted T2A13A in T2A tower 13^th floor 3 BHK flat with saleable area measuring 1916 sq. feet. Document No.6 is the receipt issued by the OP for having received Rs.5,00,000/- on 30.06.2014 towards booking. Document No.7 is the home loan agreement entered between the complainant, OP and HDFC Bank.  Document No.8 is the receipts issued by the OP for having received the amount from the complainant. The complainant has also produced the copy of statement of account as document No.9. Document No.10 is the email communications took place between the complainant and OP.
20. On the other hand the contention taken by the OP is that they have obtained the occupancy certificate on 29.06.2019 and they have come forward to deliver the possession of the apartment. Inspite of that the complainant has not taken the possession of the apartment and initiated this proceedings. The complainant was not regular in payment of the installment amount.  There is a delay in payment of balance amount by the complainant. Inspite of that with great difficulty they have completed the project and obtained the occupancy certificate. Inspite of their request the complainant has not paid the balance and taken possession of the property. There is no deficiency on their part some hundreds of owners have taken the possession of their respective apartment in the project and some of the owners have got registered sale deed in their favour and many owners are residing in the said project and it clearly proves that the facilities are complete. There is no hindrance in the complainant to reside in the apartment. They have performed their obligations under the agreement and completed the project. There is delay in completion of the project due to force majeure events even though the complainant has discussed with the representatives of the OP at the time of entering into the agreements as simply stated that the agreement is one sided.  The agreement was executed by the complainant with free consent after understood the terms and conditions in the agreement. In support of their contention the OP has relied on 14 documents. Ex.R1 is the copy of resolution, R2 and R3 are the sale and construction agreement dated 25.08.2014 and R4 is the bunch of emails and R5 is the statement of the OP, R6 is the copy of the email with occupancy certificate, R7 is the bunch of photos, R8 is the email communications R9 is the order of the Hon’ble Green Tribunal, R10 s the order Hon’ble Supreme Court, R11 is the booklet of ministry of mines, R12 is the gazette notification and R13 is the order of Hon’ble High Court of Karnataka in WP No.30.250/2013.
21. On these background we have gone through the decisions referred by the complainant.  The complainant has relied on the decision of the Hon’ble NCDRC in Varun Agarwal –vs- Ramprasatha Promoters and others in CC No.3562/2017, it is clearly held in this decision the Ops are jointly and severally liable to refund the principal amount with simple interest at 12%p.a., from the respective dates of deposit till realization.  The complainant in this case has borrowed the home loan from HDFC Bank for purchase of flat, even though the Ops are expected to deliver the possession of the property as per the agreement in June 2015 itself they have offered the possession of the property in the year 2019 after lapse of five years.  The complainant further relied on the decision of the Hon’ble Supreme Court in Kolkata West International City pvt. Ltd., -vs- Devasis Rudra, in Civil appeal No.3182/2019 it is clearly held by the Hon’ble Supreme Court a buyer can be expected to wait for possession for a reasonable period, a period of seven years is beyond what is reasonable. Therefore the order passed by the NCDRC to refund the money was upheld.
22. The Hon’ble Supreme Court in M/s Fortune Infrastructure limited – vs- Trevor D’lima and ors in Civil appeal No.3533-3534/2017 has clearly held that the complainants have to be compensated for the delay caused.  
23. We have gone through the terms and conditions of the clause 6 of the agreement. As per clause 6.1 the possession of the property has to be delivered on or before 30.06.2015 with six months grace period.  Admittedly the Ops have neither completed the construction work nor offered delivery of possession in June 2015. They are offering the possession of the property on the ground that they have obtained the occupancy certificate in the year 2019 and they have called the complainant to pay the balance amount even though the complainant has made substantial payment of more than Rs.96,00,000/- in favour of the OP by raising loan from the bank.
24. It is also the contention taken by the OP that they are unable to complete the project due to force majeure. According to the OP the said force majeure are for obtaining license and sanction plans and modified plans from the statutory bodies and they lost the time in excavating hard granite rocks at the time of lying foundations and due to heavy rain and harsh weather and due to late payments from prospective purchasers and shortage of funds and the delay caused by the construction contractor and events of demonetization and shortage of raw materials due to implementation of GST by the government of India and non availability of labours. These reasons given by the OP cannot be accepted as force majeure. The OP had entered into agreement and received the substantial amount from the complainant in the year 2014 itself. The complainant has already cleared the house loan by paying the EMI amount successfully. Even though the OP have received the substantial amount of sale consideration have failed to complete the construction. There is a delay of more than five years in very offering the possession of the flat to the complainant. When the complainant has paid the substantial amount he need not wait for more than 4 to 5 years for taking possession of the flat. When the complainant came to know that the construction is substandard, he has decided to cancel the flat and he has sought for refund of the amount with interest.
25. As per the decision of Hon’ble NCDRC and also as per Hon’ble Supreme Court there is a delay on the part of the Op in completing the project and the complainant cannot wait for an indefinite period after paying the substantial amount. The OP has not completed the project within June 2015 as agreed and thereby OP has committed deficiency of service.
26. The complainant has even cleared the home loan of Rs.96,00,000/- raised by him. If the complainant has invested the amount in any other project or the property he would have developed the property or buy the flat in other projects. Under these circumstances the complainant has suffered financial loss and mental agony. Hence the complainant is also entitled for compensation with litigation expenses. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
27. Point No.3:- In view the discussion referred above the complaint is liable to allowed in part and complainant is entitle for the relief claimed in the complaint. OP is liable to refund Rs.96,63,827/- with interest at 12% p.a., from 06.05.2017 till realization. The OP is also liable to pay a compensation of Rs.10,00,000/-  with litigation expenses of Rs.10,000/- to the complainant. Hence  we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.96,63,827/- with interest at 12% p.a., from 06.05.2017 till realization.
3. The OP is directed to pay a compensation of Rs.10,00,000/-  with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 14% p.a. after expiry of 60 days on Rs.96,63,827/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 09^th day of JUNE, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;