Karnataka

Bangalore 4th Additional

CC/60/2018

Sri B.A. Bopanna - Complainant(s)

Versus

M/s Brigade Enterprises Ltd., - Opp.Party(s)

M.S. Manjunath

11 Sep 2019

ORDER

Complaint Filed on:06.01.2018

Disposed On:11.09.2019

                                                                              

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.

 

 

   11^th DAY OF SEPTEMBER 2019

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

Complaint  No.60/2018

 

 

 

COMPLAINANT	Sri.B.A Bopanna, Aged about 45 years, S/o Late B.K Achappa, Residing at No.SF-1, Hasmita Residency, 11th Main, Revenue Layout, Padmanabhanagar, Bangalore – 560070.   Advocate – Sri.M.S Manjunath.         V/s
OPPOSITE PARty	M/s. Brigade Enterprises Ltd., Regd. And Corp Office: 29th & 30th Floor, World Trade Centre, Brigade Gateway Campus, 26/1, Dr.Rajkumar Road, Malleshwaram, Rajajinagar, Bangalore-560055.   Represented by GM-Sales and Leasing Presently Mrs.Hemavathi V   Advocate – Anupama Hebbar

                                       

 

O R D E R

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

This complaint is filed by the complainant against the Opposite Party (herein after called as OP) under section 12 of the Consumer Protection Act, 1986.  The Complainant prays to direct the OP to refund the entire amount of Rs.15,00,000/- paid by the complainant with interest @ 24% from the date of payment till the date of issue, to pay compensation of Rs.2,00,000/- towards the hardship and inconvenience caused, to pay costs and such other reliefs.

 

2.      The brief facts of complaint is as under:

 

The complainant booked flat bearing unit No.201, second floor of the Arcade @ Brigade Meadows with super built up area of 1260 sq. ft., with one top covered car parking area constructed on Panchayath Katha No.1293/01 and 1293/03 of Kaggalipura Village, Uttarhalli Hobli, Bangalore South Taluk and made an advance amount of Rs.15,00,000/- in favour of OP on 31.03.2016.  Thereafter the OP had issued allotment letter dated 27.04.2016 in favour of complainant towards the allotment of the above said flat.  The complainant submitted that for the above said transaction OP had issued a Form 26QB and TDS payment of Rs.15,000/- on 08.05.2016.  The same has been intimated by the complainant on 10.05.2016.  The complainant had issued booking advance cheque of Rs.6,789/- dated 12.05.2016 in favour of OP towards the purchase of stamping of sale agreement.  On 05.08.2016 Agreement to sale has been executed between the complainant and the OP.  As per the agreement schedule flat shall be completed on or before 30.09.2016.  The complainant further submitted that the detailed valuation reported dated 06.09.2016 has been prepared by Vishnu Associates.  And thus, the complainant was able to get loan from Corporation Bank, Chikmagalur Branch for the purchase of the said flat.  The complainant informed the OP through email dated 19.09.2016 for necessary clearance letters/forms for loan sanction process from OP.

 

The complainant further submitted that in terms of the sale agreement out of the total sale consideration of Rs.67,89,000/-, the complainant paid the amount of Rs.15,00,000/- and Rs.15,000/- towards the TDS.  The complainant always ready to perform as agreed in terms of sale agreement.  As per the agreement dated 05.08.2016 sale of the schedule flat shall be completed on or before 30.09.2016.  It was specifically agreed that, time stipulated for completion of the sale is essence of this agreement and both parties make it as essential term of agreement and under no circumstances the time stipulated would be extended.  In spite of the said specified terms, OP has failed to act in terms of the said agreement and failed to complete and deliver the vacant possession of the said flat in favour of the complainant by furnishing the completion certificate, occupation certificate and khatha of the flat.  The complainant further submitted that complainant had got loan sanctioned to purchase the said flat.  After sanctioning the loan the complainant approached the OP through phone and email the OP had failed to act in terms of the sale agreement to furnish the completion certificate, occupation certificate and khatha to the Bank to release the loan amount and thereby execute the sale deed in favour of the complainant.

 

The complainant further submitted that being aggrieved by the acts OP by delaying in completing the construction in time and furnish the completion certificate, occupation certificate and katha of the flat and thereby 9 months delay in hand over the vacant possession of the said flat, had issued a legal notice on 22.06.2017 demanding the OP to cancel the agreement dated 05.08.2016 and to refund the amount of Rs.15,00,000/- along with @ 24% interest and damages of Rs.50,000/- within 7 days from the date of receipt of the notice.  The notice has been served on OP on 23.06.2017.  The OP has not refunded the amount.  Hence the complainant approached this Forum.

 

3. In response to the notice issued, OP appeared through their advocate and filed their version contending in brief as under:

 

OP submitted that the complainant is not a ‘consumer’ as per section 2(1)(d) of the C.P Act.  The complainant entered into a sale agreement dated 05.08.2016 in owing the retail office space for commercial purpose.  Therefore the complainant is not a ‘consumer’.  Hence complaint is not maintainable before this Forum.  This Forum has no jurisdiction to entertain the complaint.

 

The complainant approached the OP in the year 2016 and paid advance amount of Rs.15,00,000/- on 30^th March 2016 and OP had issued a allotment letter to the complainant on 27.04.2016.  The complainant was allotted an office unit No.201, measuring approximately 1260 sq. feet of super built-up area.  The total sale consideration of Rs.67,89,000/-.  The same has to be paid in 2 installments.  Accordingly the complainant was required to pay sum of Rs.49,49,550/- on or before 1^st June 2016, remaining sum of Rs.3,39,450/- on or before 30^th June 2016.  Complainant was also required to pay certain other charges as set out therein, on demand.  The terms and conditions of the allotment notice firmly stated that the OP would be entitled to cancel the complainant’s booking by forfeiting the advance amounts being paid, in the event that the complainant failed to make payments in a timely manner.

 

OP further submitted that the OP intimated with willingness to execute an agreement to sell, which would contain the terms of purchase and sale of the unit.  The OP had already completed the construction of a major portion of the building facade of the Arcade, including its plastering and painting.  The OP diligently updated the complainant of the progress of the Arcade Project on 16.05.2016 and stated that only minor works such as plumbing and electrical related works remained to be completed.  The complainant had failed to make payments towards both first and second installment under the allotment notice that were due on 1^st June 2016 and 30 June 2016.  The OP once again on 11.07.2016 uploaded the status of project and informed the complainant that the structural work, paining, flooring etc., were already completed.  Additionally the OP reminded the complainant that the first installment, per the payment schedule in the Allotment letter had fallen due as of that date and thereby demanded payment from the complainant.

 

The OP further submitted that under clause 1.2 of the Agreement, it was agreed that the complainant was made payments towards the sale consideration in accordance with schedule ‘F’ without any delay and this obligation of complainant formed the essence of the Agreement.  In light of the complainant’s failure to adhere to the payment schedule provided in the allotment letter, the OP, as a gesture of good faith, extended the timeline for payments such that the complainant was now liable to pay the first installment of Rs.49,34,550/- on or before 10^th August 2016 and the second instalment of Rs.3,39,450/- on or before 30 September 2016.  It was also agreed under Clause 2 of the Agreement that the sale of the unit and the accompanying undivided share in the property was to be completed on or before 30 September 2016, if and only if the complainant had remitted to the OP all amounts due and payable under the Agreement.  In clause 4.2 of the Agreement, the parties had explicitly agreed that the sale deed for the units and undivided share in the Arcade property therein, would only be executed upon the complainant complying with the terms and payment under the agreement and further that the complainant would not demand conveyance or possession till he had complied with the terms of the agreement.  The agreement thus made it amply clear that the OP was only required to handover possession of the unit to the complainant, once the complainant had performed his payment obligations set out in Clause 1.2 read with schedule F of the agreement.  The complainant has conveniently brushed over its own payment obligations and consequent breaches under the allotment letter and agreement with a view to try and obtain orders for this Forum.

 

The OP further submitted that OP had failed to pay the first instalment even per the extended deadline i.e., 10 August 2016, despite the OP several reminders.  In view of the same, the OP issued another progress cum demand letter to the complainant on 06.09.2016 and reminded the payments due as of that date.  OP also called upon the complainant to come forward to execute and register a sale deed for the unit, before taking possession of the unit, and reminded the complainant that the sale deed could only be executed once he had cleared all his dues and made payments towards both the installments and other charges due under the agreement.  OP always ready and willing to perform its part of the agreement and execute sale deeds and hand over possession to the complainant, subject to the complainant making payments in accordance with schedule F of the agreement.

 

OP further submitted that the complainant subsequently defaulted in payment in respect of 1^st and second installment that had fallen due on 10.08.2016 and 30.09.2016 respectively.  The complainant on the other hand displayed no interest in making the payments that were due under the agreement, even though the OP had categorically invited complainant to execute the sale deed and take possession thereafter.  The complainant allegation regarding delay in OP service in handing over possession without any basis and also made with the sole motive of evading its own obligations under the agreement.  The delay in handing over possession to the complainant are evidently on account of his own failure to comply with the terms of the agreement.

 

OP further submitted that OP had terminated the agreement and invoked clauses 1.4 and 1.5 of the agreement.  OP was entitled to forfeit a sum equivalent to 20% of the sale consideration and thereafter refund of balance amount of the advance paid by the complainant.  OP agreed to refund the balance amount of Rs.1,57,200/- to the complainant and called upon the complainant to correspond with the ‘CRM Team’ to complete all the procedures in relation to the refund.  The OP further submitted that the complainant alleged that his banker had sanctioned a loan of 19.09.2016 and subsequently the said loan was cancelled on account of the failure of the OP to provide certain documents required by the banker, including the completion certificate, occupation certificate and the khatha certificate.  The argument has not been raised by the complainant in its legal notice dated 22.06.2017.  The complainant had never requested the OP to furnish either the completion certificate, occupation certificate or the khata, for the purposes of availing a loan and has infact failed in substantiating or producing any such correspondences in the present complaint.  The complainant’s averments regarding the cancellation of the loan are concocted.  The same is evident in the fact that the complainant has not produced any document with his complaint to support his assertion regarding the cancellation of his loan.  Complainant voluntarily foreclosed his loan, having lost interest in purchasing the unit and is now making false allegations in his complaint, with the sole motive of extracting sums from the OP and thereby making unlawful gain.  The OP further submitted that OP promptly replied to the complainant and provided the requisite No-Objection Certificate on 22.09.2016.  The complainant mislead this Forum by concealing the OP response on 22.09.2016 to his email dated 19.09.2016 and has instead misrepresented and falsely alleging that the OP had failed to provide the requisite documents for the confirmation of the loan and therefore responsible for the complainant’s loan being cancelled.  OP further submitted that the complainant has not approached this Forum with clean hands and sought false blame on OP with a view to harass it even though it is evident that the complainant miserably failed to pay the amount therefore lost interest in purchasing the unit.  The OP was ready and willing to handover possession and execute sale deeds as it is evident in its letter dated 06.09.2016.  Hence OP prayed for dismissal of the complaint with cost.

 

4. In the course of enquiry into the complaint, the complainant and the OP have filed their affidavit reproducing what they have stated in their respective complaint and objection.  Both parties have submitted written arguments.  Complainant and OP has produced documents which were marked.  We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

 

5. Based on the above materials, the following points arise for our consideration:

 

 

1)	Whether the Complainant has proved that there is deficiency in service on the part of OP, if so, whether he is entitled for the relief sought for?
2)	What order?

 

        6. Our findings on the above points are as under:

 

 

Point No.1:-	In the negative
Point No.2:-	As per the order below

 

 

REASONS

 

 

7. Point No.1 On perusal of the pleadings, evidence and documents produced by both the parties, it is an admitted fact that the complainant intended to purchase unit in the OP project called ‘Brigade Meadows’ in survey No.136 of Kaggalipura Village, Uttarahalli Hobli, Bengaluru South Taluk and paid an advance amount of Rs.15,00,000/- on 30.03.2016.  OP had issued allotment letter to the complainant on 27.04.2016.  The complainant was allotted an Office Unit No.201, measuring 1260 square feet for a total consideration of Rs.67,89,000/-.  In this regard the complainant and OP entered into an agreement to sell on 05.08.2016.  It is also an admitted fact that as per the agreement complainant was required to pay a sum of Rs.49,49,550/- on or before 1^st June 2016 and remaining amount of Rs.3,39,450/- on or before 30^th June 2016.  The complainant has raised two contentions in the complaint.  Firstly the complainant has contended that, OP has delayed in completing the project as per the terms of agreement to sell dated 05.08.2016.  The OP had agreed the schedule flat shall complete on or before 30.09.2016 but the OP had delayed by 9 months.  To rebut the evidence of the complainant, OP has produced a letter issued by the OP to the complainant on 06.09.2016/Ex-B10 to prove that they have completed the project in time

 

8. Admittedly the OP has agreed to complete the project before 30.09.2016 and the complainant had also agreed to pay the amount of Rs.49,34,550/- on or before 10.08.2016 and the remaining balance amount of Rs.3,39,450/- on or before 30.09.2016.  As per Ex-B10 letter dated 06.09.2016 issued by the OP to the complainant which reads here as under:

 

Payments: The following Payments (payable in favour of “Brigade Enterprises Ltd.,”) are due from you as on date:

 

TDS to be remitted                                                      Rs.     52,890/-

Installment                                                                  Rs.52,21,110/-

External Electrification, water                                    Rs.  2,00,340/-

and sanitary charges

Property Assessment, sub numbering                        Rs.     17,250/-

Maintenance charges                                                 Rs.  1,04,328/-

One time Sinking Fund                                               Rs.     90,720/-

 

You are requested to pay the dues/over dues at the earliest, as the delayed payments will attract interest @ 18% P.A.  Your co-operation is highly appreciated in this regard.

 

For getting the units registered, kindly email us the required date of registration with the payments for entire dues at least 15 working days, prior to registration.  The Registration expenses and Legal fees details will be sent to you separately.

 

          9. As could be seen from the above statement, the OP had completed the project before due date and the OP called upon the complainant to make the payment that remained due and called upon the complainant to execute the sale deed after clearing all payments.  The OP had also issued a several reminders to complainant to pay the due amount as per Ex-B3, 7 & 8.  The complainant has failed to pay the due amount.  The complainant is also not interested in paying amount due.  Hence the complainant is estopped from taking contention that OP has not completed the project in time.

 

          10. Next contention raised by complainant is that, the OP had not handed over khatha, occupancy certificate to the Bank, hence Bank has not released the loan amount availed by the complainant.  To substantiate his contention the complainant has not produced sanction letter issued by the Bank.  Further the complainant has also not produced any cogent evidence to prove that Bank has not released the amount for non submission of document by the OP.  Without any documentary evidence we cannot come to the conclusion that, OP has not handed over the documents as requested by the Bank.

 

          11. Admittedly as per the agreement clause 1.4 the OP was entitled to terminate the agreement in the event of delay/default by the complainant to pay the sale consideration as per schedule ‘F’ and forfeit a reasonable sum of 20% of sale consideration.  The OP in his version submitted that they are ready to pay Rs.1,57,200/- to the complainant as per the clause 1.4.  Hence we do not find any deficiency in service on the part of OP.  In view of the discussions made above, the complaint is liable to be dismissed for the reason that, the complainant has not acted in terms of the agreement to sell.  Therefore, we are of the opinion that, the complainant is not entitled for any of the relief as claimed.  Accordingly, we answered the point No.1 in the negative.

 

12. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

 

 

 

                 

  O R D E R

 

 

 

The complaint filed by the Complainant is dismissed. No order as to costs.

 

         

 Supply free copy of this order to both the parties.

   

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 11^th day of September 2019)

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

                     
  

Witnesses examined on behalf of the complainant by way of affidavit:

 

Sri.B.A Bopanna.

 

 

 

Copies of documents produced on behalf of complainant:

 

Ex-A1	Copy of tax invoice for payment of booking advance of Rs.15,00,000/- dated 31.03.2016.
Ex-A2	Copy of allotment letter for flat No.201 at Brigade Meadows dated 27.04.2016.
Ex-A3	Copy of email intimation for TDS payment on booking advance by Prabhavathi, Brigade Group dated 27.04.2016.
Ex-A4	Copy of Form 26 QB & TDS payment of Rs.15,000/- on booking advance amount dated 08.05.2016.
Ex-A5	Copy of email intimation dated 10.05.2016 regarding payment of TDS by Mr.Bopanna to Prabhavathi, Brigade Group.
Ex-A6	Copy of cheque for Rs.6,789/- dated 12.05.2016 issued in the name of M/s.Brigade Enterprises Ltd., towards the stamping of Sale Agreement.
Ex-A7	Copy of email intimation dated 17.05.2016 regarding progress of apartment building by Hemavathi.V, Senior Manager-Sales & Leasing, Brigade Group.
Ex-A8	Copy of sale agreement dated 05.08.2016 entered with Brigade Enterprises Ltd.
Ex-A9	Copy of valuation report by Vishnu Associates dated 06.09.2016.
Ex-A10	Copy of email dated 19.09.216 regarding intimation from Corporation Bank, Chickmagalur Branch to Mr.Bopanna towards sanction of housing loan and the same is informed to Brigade Group and requested for some letters from Brigade Enterprises reqd by bank for loan process.
Ex-A11	Copy of credit/loan sanction intimation letter by Corporation Bank, Retail Loan Center, Udupi.
Ex-A12	Copy of legal notice dated 22.06.2017 issued by B.A Bopanna to Brigade Enterprises Ltd., by RPAD.
Ex-A13	Copy of acknowledgment due notice served on to M/s.Brigade Enterprises Ltd., dated 23.06.2017.
Ex-A14	Copy of email intimation dated 29.06.2017 about khatha of the flat by M/s.Brigade Enterprises Ltd.
Ex-A15	Copy of khatha of the flat, sent through mail by M/s.Brigade Enterprises Ltd.
Ex-A16	Copy of reply notice from M/s.Brigade Enterprises Ltd., dated 17.07.2017.

 

Witnesses examined on behalf of the OP by way of affidavit:

 

Sri.Udaya Kumar A, who being Authorized Representative of OP.  

 

 

Copies of documents produced on behalf of Opposite Party:

 

Ex-B1	Copy of board resolution dated 26th March 2012 authorising Mr.Udaya Kumar A.
Ex-B2	Copy of application for allotment filled by the complainant.
Ex-B3	Copy of progress cum demand letters dated 16th May 2016 addressed to the complainant by Ms.Hemavathi V of the OP Company.
Ex-B4	Copy of the progress cum demand letters dated 11 July 2016 addressed to the complainant by Ms.Hemavathi V of the OP Company.
Ex-B5	Copy of true print of the email threads between the complainant and the OP on 28 August 2016.
Ex-B6	Copy of true print of the OP response to the complainant’s email dated 19 September 2016 along with the no-objection certificate.

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

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