BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

DATED 21^ST DAY OF JANUARY 2016

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainants under section 12 of the Consumer Protection Act, 1986 seeking direction against Opposite Parties (herein after referred as OPs) to refund Rs.13,40,000/- with interest at 18% and damages of Rs.2,50,000/- and cost on the  allegation of deficiency in service.

2.  The brief averments made in the complaint are as follows:

OP-1 reported to be the owner of the property being southern portion of Old Katha No.3/2, CMC Khata No4B, BBMP Katha No.6/4B/3/2, situated at Yallukunte Village, Begur Hobli Bangalore South Taluk, within the jurisdiction of Bommanahalli CMC measuring East to West (98+94)/2 feet and North to South (20+18)/2 feet in all 1824 square feet by virtue of registered Gift Deed dated 13.07.2014 vide document No-02981/12-13 of book-1 in the office of SRO, Bommanahalli.  OP-2 is the absolute owner of the property being Northern portion of Old Khata No.3/2, CMC Khata No.4B, BBMP Katha No.6/4B/3/2, situated at Yallukunte Village, Begur Hobli Bangalore South Taluk, within jurisdiction of Bommanahalli CMC measuring East to West (94+90)/2 feet and North to South (20+18)/2 feet in all 1748 square feet and by virtue of registered Gift Deed dated 13.07.2014 vide document No-02983/12-13 of book-1 in the office of SRO, Bommanahalli.  OP 1 & 2 have entered into Joint Development Agreement(JDA) dated 23.07.2012 in favour of M/s.Image Construction, a partnership firm represented by its  Managing Partner Mr.P.Ravindra i.e., OP-3 for development and construction of the multi-storied apartment building over aforesaid property.  The JDA registered vide document No.BKI-BNG-BMH-03214/2012-2013.  OP 1 & 2 have executed registered GPA dated 23.07.2012 in favour of OP-3 for all practical purposes including sale of their 50% of shares of the builder i.e., OP-3. Complainants interested in purchasing an apartment, approached OPs, an agreement was entered into between complainants and OP for purchase of an apartment/2BHK Flat No.302 on the third floor of building known as “Nishita’s Honey Dew” having super built up area of 900 square feet to be constructed by OP-3 along with 253 square feet of undivided share in the said land.  OPs reported that they have constructed the apartment building in accordance with approved plan issued by competent authority and also obtained all necessary approvals and NOC’s from the competent statutory authorities and the said project has been duly approved by all major financial institution/Banks.  In pursuance of said agreement of sale dated 15.05.2013 complainant paid a sum of Rs.1,50,000/- by way of cheque dated 04.04.2013, Rs.50,000/- cheque dated 16.04.2013, Rs.3,00,000/- on 25.04.2013, Rs.3,40,000/- on 03.05.2013, Rs.3,00,000/- on 23.12.2013, Rs.2,00,000/- on 27.08.2013 in a total sum of Rs.13,40,000/- to OP.  OP is duly acknowledged the receipt of the said payment of Rs.13,40,000/-.  As per the instructions of OP complainant approached LICHFL, Bannerghatta Road Branch for availing housing loan.  Since, the project was approved by LIC.  LIC sanctioned the loan on 28.09.2013 subject to the conditions that OP-3 have to submit certain documents regarding construction details and approvals to disburse the loan amount to the complainant.  Complainant repeatedly informed OP for submission of documents. On 16.12.2013 sent a mail for submission of the documents required by LIC for sanction of the loan.  When the complainant approached LIC for disbursement of loan to Bank Manager, said that the required documents have not been submitted by the builder and they also found that building is also constructed with lot of deviation which are not in the permissible limit of the sanctioning authority and no further sanctions were taken with the deviation.  In view of non-compliance, non-furnishing of the required documents and also OP failed to adhere to the terms of the sale agreement.  The complainant obtained the approved plan under RTI and verified at their end and found that plan submitted by the builder and plan obtained from the BBMP under RTI are not tallying or matching.  Hence, complainant requested the OP to cancel the said booking and agreement on 07.04.2014 and requested OP to refund the amount paid under the said agreement.  Inspite of repeated request and demands OPs have failed to return the advance booking amount.  Hence, complainant got issued legal notice dated 31.10.2014 seeking refund of Rs.13,40,000/-.  OP-3 vide its reply letter dated 05.05.2014  accepting the cancellation stated that amount will be refunded after deduction of 25% subject to the resale of the unit.  Inspite of receipt of the notice, OPs failed to refund the amount.  Hence, complainants felt deficiency in service on the part of the OPs.  Under the circumstances, they are advised to file this complaint against OPs for appropriate relief.

3.  After registration of the complaint, notice was issued to OP 1 & 2.  Inspite of service of notice OPs remained absent without any sufficient reason or cause.  Hence OPs are placed exparte.  OP-3 though appeared through his advocate failed to contest the matter by filing version or affidavit evidence.  Hence, the matter is posted for filing affidavit of the complainant.

4. So as to prove her case, complainant No.1 Mr.R.M.Palaniappa filed the affidavit evidence on his behalf and also on behalf of his wife i.e., complainant No.2 in support of complaint reiterating the complaint averments and produced documents.

5. The above said assertions of the complainant have remained unchallenged. OPs neither filed version nor denied the sworn testimony of the complainant.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainant.

6.  Let us have a cursory glance at the documents produced by the complainant.  Document No.1 is copy of the sale agreement date 15.05.2013. Document No.2 & 3 are copies of the email communication dated 28.09.2013, 08.10.2013, 20.12.2013, 07.02.2004, 16.06.2014. Document No.4 & 5 are copies of approved plan submitted by OP and plan obtained from BBMP under RTI.  Document No.6 & 7 are cancellation letter dated 07.04.2014 and legal notice dated 31.10.2014.  Document No.8 is reply letter dated 05.05.2014.  Document No.9 & 10 are served acknowledgement card and postal receipts.  Along with their affidavit evidence complainant have produced original receipts issued by the Nishita’s Properties to the complainant 6 in numbers for having received amount of Rs.13,40,000/- from 04.04.2013 to 30.12.2013 which are at Document No.11 to 16 and original emails copies. 

7. On perusal of oral and documentary evidence of the complainant, it is made crystal clear that the complainant entered into agreement to sale dated 15.05.2013 with OP 1 to 3 for purchasing two BHK flat No302 on the 3^rd Floor of the building known as ‘Nishita’s Honey dew’ having super built up area of 900 square Feet to be constructed by OP-3 along with 253 square feet of undivided share in the said land for a total sale consideration of Rs.41,50,000/-.  In pursuance of the said agreement complainant paid advance sale consideration of Rs.13,40,000/- to OP on different dates starting from 04.04.2013 to 23.12.2013 as per document No.1 and both the parties have signed the said agreement.  OPs also issued receipts as per Document No.11 to 16.  Since the project was approved by LICHFL, as per the instructions of OP complainant approached LICHFL for housing loan.  LICHFL has sanctioned the loan on 28.09.2013 on the condition to submit certain documents regarding construction details and approvals as per Document No.2.  Inspite of repeated emails OPs failed to submit the documents to LICHFL.  LICHFL also found that building was constructed with lot of deviation which are not within the permissible limit to the sanctioning authority.  Complainant obtained copy of the approved plan under RTI as per Document No.4 and the plan submitted by OP to the BBMP as per Document No.5 are not tallying.  Hence, complainant requested OP to cancel the agreement on 07.04.2014 and to refund the amount.  There was no response from OP.  Hence, complainant got issued legal notice dated 31.10.2014 calling upon to act upon the cancellation of the agreement and to refund the amount paid along with interest at 18% per annum within 15 days failing which they will approach the appropriate Forum for recovery of the amount.  OP vide its reply letter dated 05.05.2014 has stated that after deducting 25% of the amount balance will be refunded subject to resale of unit.  Hence, this complaint. 

8. From the available materials on record it is clear that complainants have paid Rs.13,40,000/- to OP 1 to 3 as per the document No.1 agreement of sale for purchase of flat No.302 on the 3^rd floor of the building known as Nishitha’s Honey Dew.  It is contended by the complainants that OPs have failed to submit the documents required by LICHFL and building was constructed with lot of deviation by violating the terms of the agreement.  Hence, complainant sought for cancellation of the agreement and refund of amount as per document No.6.  Inspite of repeated request and email OPs failed to refund the amount.  Hence, complainant got issued legal notice dated 31.10.2014 calling upon OPs to refund the amount along with interest at the rate of 18% per annum within 15 days as per document No.7.  OPs in their reply letter dated 05.05.2014 accepted the requisition for cancellation, on the condition that they will deduct 25% of the amount paid.  This claim of OPs is not fair on the part of OPs.  However, OPs can deduct a sum of Rs.25,000/- and can refund the balance amount to the complainants.  Retention of the entire amount for more than two years amounts to deficiency in service on the part of OPs.   We are satisfied that the complainant proved the deficiency in service against OPs.  Under the circumstances we are of the considered view that OPs are liable to refund Rs.13,15,000/- to the complainants within the period of 3 months from the date of this order failing which OPS are liable to refund the said amount along with interest at 12% per annum from 23.12.2013 till realization along with litigation cost of Rs.3,000/- to the complainants.   Accordingly, we proceed to pass the following:

      O R D E R

1. The complaint filed by complainants is allowed in part. 

2. OPs 1 to 3 are jointly and severally directed to refund  Rs.13,15,000/- to the complainants within the period of three months from today.  Failing which OPs shall refund the said amount along with interest at 12% per annum from 23.12.2013 till realization along with litigation cost of Rs.3,000/- to the complainants.

3. Supply free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Forum by us on this the 21^st day of January 2016)

 MEMBER                          MEMBER                        PRESIDENT

NRS* 

CC.No.927/2015

Witnesses examined on behalf of the complainant dated 10.11.2015

1. Sri.R.M.Palaniappan

OPs – Absent

MEMBER                           MEMBER                        PRESIDENT

NRS*