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

DATED 23^RD DAY OF JANUARY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The  complainant  has filed this complaint against the Opposite parties  for reliefs

1. Take on record and admit the complaint filed;
2. Direct the OPs for an immediate 100% refund of the total principal amount paid by the complainant, along with a penal interest of 18% p.a., from the date of receipt of the payments made to the OPs.
3. Direct the Ops to pay interest at 12% p.a., on the amount deposited by the complainant with the Ops, with effect from 31^st August 2016 i.e., date when possession was promised, till the date of actual possession; pay a sum of Rs.10,00,000/- as compensation to the complainant for harassment faced in receipt of the services.
4. Direct the OP to pay cost of Rs.50,000/- and such other reliefs.

2.  The case of the complainant is that:

The OP-1 are engaged in real estate business and they are represented by its directors. OP-2 is the Managing Director of OP-1. The OP have launched the project in the name and style of Mantri Webcity to be developed over various converted survey lands situated at Nagareswara Nagenahalli village and Kottanur village, K.R.Puram Hobli, Bangalore South Taluk.

3. The complainant based on innumerable representation and assurance and huge list of amenities and facilities offered by the OPs booked an apartment bearing no.T-1003 having super built up area 1445 Sq.ft., on 10^th floor, including one car parking. In furtherance of the same he entered into an agreement of construction and paid an amount of Rs.34,79,000/- and agreement of sale to purchase the value of the share of undivided land for Rs.43,20,550/- on 29.09.2014 totally for a sum of Rs.77,99,550/-. The complainant as per the offer has paid a sum of     Rs.73,55,663/-. 
4. As per the terms and condition of the agreement the OPs were liable to complete the project and hand over the possession of the project with all amenities by 31.08.2016, but the OP failed to complete the project even today the project is not finished and it is likely to take few more years.
5. It is further case of the complainant that he had booked the apartment for his own use. The OP failed to deliver the possession on 31.08.2016 as specified in the agreement of construction.
6. It is further case of the complainant that the OPs were suppose to complete the entire project along with all amenities by 31.08.2016. In spite of lapse of more than 05 years the OPs have not completed the project and not providing occupancy certificate. Under these circumstances the complainant does not intent to continue in the project and demanded for refund of entire sale consideration amount along with interest at the rate of 18% p.a. from the date of respective payments. In pursuance of the same the complainant got issued legal notice on 19.07.2021 and requested for refund of the money but the OP fails to refund the money. Hence, the complainant has filed this complaint.
7. After service of notice, OP-1 has appeared before this commission through their counsel and filed their version. OP-2 remained absent and placed exparte.
8. The OP-1 has filed their version and have admitted about booking made by the complainant in their project and the amount of Rs. 73,55,663/- paid by the complainant. They have further admitted about the sale agreement and construction agreement entered between them on 29.09.2014.
9. It is specific contention taken by the OP that as per clause-6.1 of the construction agreement this OP has to hand over the possession of the completed apartment on 31.08.2016. This hand over of possession was subject to limitation in clause-6.1 and 6.4. As per which based on certain force majeure consideration which were beyond the control of OP-1 could be excused in the case of delay arising from happening of events contemplated in clause-6.4 of the construction agreement.
10. It is the specific contention taken by the OP that he could not complete the project intime as he has to overcome several legal hurdles such as issues while excavation, legal issues, license issues, rain fall and flooding issues, protest by sand suppliers. In addition to this there were several force majeure events which occur further hampered the progress and delayed the project which are the demonetization that was declared in Nov.2017 by the Central Government hindered the progress of the project. When the OP-1 was slowly recovering from the blow of demonetization this OP as well as entire industry was dealt with another blow i.e. implementation of GST in July 2017. The OP is statutorily required to obtain several approvals and permissions from various authorities under various statues. The obtaining of such sanctions and approvals invariably a time consuming process and it also constitutes force majeure and it is beyond the control and power of the OP. Despite such huge obstacles this        OP-1 has managed to overcome the same and has ensured that the project is under full swing of construction. In the meantime the real estate RERA 2016 came into force on 01.05.2016. Due to this OP-1 applied for registration of the project as required under provisions of RERA Act and Rules. The authority after scrutinizing the documents submitted by OP-1 was pleased to register the project on 30.03.2021.
11. It is further case of the OP that inspite of all hurdles they have completed the construction and would be handing over possession from February 2022 to the complainant for carrying out interior works.  
12. Under these circumstances there is no deficiency on the part of the OP and he is not liable to pay any compensation and damages to the complainant.  Hence the complainant is not maintainable and liable to be dismissed. Hence, the OP has prayed to reject the complaint with exemplary costs. 
13. The complainant in order to prove his complaint filed his affidavit evidence and relied on Ex.P1 to P8. On the other hand Authorized signatory of OP- has filed his affidavit evidence and relied on  Ex.R1 to R5.
14. We heard the arguments of the complainant and OP.
15. The following points do arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

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

       Point No.1:-Affirmative

      Point no.2:- Affirmative in part.

      Point No.3:-As per the final order.

REASONS

17. Point Nos.1 and 2:. These two points are interrelated and hence they have taken up for common discussion.
18. The complainant in order to prove his contention has filed his affidavit evidence by reiterating all the allegations made in the complaint and relied on exhibits P1 to P8.
19. Ex.P1 Copy of the payment receipt for Rs.10,00,000/- and Ex.P2 is Copy of payment for Rs.63,55,663/-,  Ex.P3 is the Construction agreement, Ex.P4 is the sale agreement Ex.P6 is the bunch of emails, Ex.P7 is the copy of legal notice, Ex.P8 is the postal consignment about deliver of notice.
20. On the other hand the Authorized representative of OP company filed affidavit evidence reiterating all the allegation made in the version. The OP has relied on Ex.R1 to R7. Ex.R2 is the copy of the board resolution, Ex.R3 is the bunch of 20 photos, Ex.R4 is the copy application for occupancy certificate with clearance certificate issued by Fire Department, R5 is the email communication of the complainant.
21. It is clear from the evidence and documents and pleadings of both the parties that the complainant booked the apartment formed by the OP-1 and entered into sale agreement and construction agreement and paid an amount of Rs.73,55,663/-. As per the agreement the OP has to complete the construction and hand over the apartment with all the amenities by 31.08.2016. In spite of lapse of 05 years after the completion period the OP failed to complete the project and hand over the possession. Under these circumstances complainant demanded for the refund of the amount.
22. On the other hand the OP has taken the contention that they could not complete  the  project in time as they have to overcome several legal hurdles such as issues while excavation, legal issues, license issues, rain fall and flooding issues, protest by sand suppliers. In addition to this there were several force majeure events which occur further hampered the progress and delayed the project which are the demonetization that was declared in Nov.2017 by the Central Government hindered the progress of the project. When the OP-1 was slowly recovering from the blow of demonetization this OP as well as entire industry was dealt with another blow i.e. implementation of GST in July 2017. The OP is statutorily required to obtain several approvals and permissions from various authorities under various statues. The obtaining of such sanctions and approvals invariably a time consuming process and it also constitutes force majeure and it is beyond the control and power of the OP. Despite such huge obstacles this OP-1 has manage to overcome the same and has ensured that the project is under full swing of construction. In the meantime the real estate RERA 2016 came into force on 01.05.2016. Due to this OP-1 applied for registration of the project as required under provisions of RERA Act and Rules. The authority after scrutinizing the documents submitted by OP-1 was pleased to registered the project.
23. It is undisputed fact that the complainant booked the apartment on 13.08.2014 after making substantial payment as per demand made by the OP. The OP has to complete the project within 31.08.2016 and hand over the possession with all the amenities. The problems raised by the OP for delay in completion of the project were not at all there at the time of booking of the apartment by the complainant and also till the completion period of the project 2016. When the OP has failed to complete the project has taken all these problems as a hurdles in order to take shelter under these alleged problems in order to avoid the refund of the amount to the complainant.
24. The complainant cannot wait for an indefinite period for taking possession of the apartment after making substantial payment. Under these circumstance the complainant has decided to cancel the booking and terminate the agreement entered with the OP.
25. On this background we have gone through the decisions of the Apex court and the decision of National Consumer Disputes Redressal Commission held in Mili Jain & two others V/s Wave City Centre Pvt. Ltd., on 29^th October 2021.
26. It is also clearly held in the above decision that the complainant is entitled for the refund of the amount with interest and if the OP failed to pay the amount then the complainant is also entitled for additional interest. If the OP failed to deliver possession and pay the compensation the complainants shall be entitled to seek execution of the order under the C.P. Act. 
27. The complainant has also relied on the decision of the Hon’ble Supreme Court of India in 2022 SCC Online SC 416 Experion Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor.  The Hon’ble Supreme Court has directed the OPs to refund the amount with interest from the date of deposit of the amount.  
28. The OP has also relied on the decisions of the Apex Court and they are not applicable to the facts and circumstances of this case.
29. The complainant has clearly established that the OP has committed deficiency of service as he failed to complete the project and hand over the possession within August 2016. When the OP has failed to hand over the possession and the complainant cannot be expected to wait for an unlimited period after booking the apartment in the year 2014 by paying substantial amount of Rs.73,55,663/-.  Hence OP is bound to refund the amount with interest. The OP instead of refunding the amount has made the complainant to run from pillar to post and to approach this commission for recovery of the amount. In view of this the complainant has suffered mental agony and financial loss. Hence, the complainant has clearly establish the deficiency of service and financial loss and mental agony suffered by him. Therefore, the complainant is entitled for relief claimed in the complaint and the complaint is to be allowed in part.
30. The complainant has claimed the refund of the amount of Rs.73,55,663/- and also the compensation of Rs.10,00,000/- and legal fee and other expenses amounting to Rs.50,000/-.  As per the amended C.P.Act 2019, this Commission was given pecuniary jurisdiction to try the complaints worth Rs.1,00,00,000/- and later the act was amended in December 2021 and the pecuniary jurisdiction of this Commission was reduced to Rs.50,00,000/-.

31. The complainant has filed this complaint before this Commission on 25.10.2021 as per the new act which came into force on July 2020, and act was amended and the pecuniary jurisdiction was reduced with effect from 30.12.2021.  Hence the complainant filed this complaint before the amendment of the pecuniary jurisdiction of this commission. Hence this commission has got pecuniary jurisdiction to try this complaint and to pass the order.
32. Hence, we answer point no.1 in affirmative  and point no.2 affirmative in part.  
33. Point no.3:-.  In view of the above discussions, the complaint is liable to be allowed in part and complainant is entitled for Rs.73,55,663/- along with interest at the rate of 12% p.a. from the date of receipt of payment made to the OP. The complainant is also entitled for compensation of Rs.10,00,000/- for the financial loss and also mental agony suffered by him. The complainant is also entitled for litigation expenses of Rs.10,000/-. Accordingly, we proceed to pass the following; 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund the amount of Rs.73,55,663/- with interest at 12% p.a. on the date of receipt of payment made to the OP.
3. The OP is further directed to pay compensation of Rs.10,00,000/-  towards  financial loss and also mental agony suffered by the complainant along with Rs.10,000/- towards litigation expenses.
4. The OP is further directed to pay entire amount within 60 days from the date of this order, if the OP failed to refund the amount, the amount of  Rs.73,55,663/- will carry interest at 15% p.a. after expiry of 60 days  till realization of the amount.
5. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 23^rd day of January, 2023)

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

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