BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE.

DATED THIS THE 29^th DAY OF NOVEMBER 2021

PRESENT

MR. RAVISHANKAR                           : JUDICIAL MEMBER

MRS. SUNITA CHANNABASAPPA BAGEWADI        :  MEMBER

CONSUMER COMPLAINT NO. 86/2012

V/s

ORDER

Mr. RAVISHANKAR, JUDICIAL MEMBER

1.      This is a complaint filed by the complainant alleging deficiency and prayed to direct the Opposite Party to enter into Sale Deed in respect of Apartment No.1108 in Brigade Palmspring and handover the possession or in the alternate to refund Rs.80,35,198/- with interest at 9% p.a. from the date of respective payment, till realization along with costs.

2.      The averments in the complaint are as hereunder;

It is the case of the complainant that he had applied for an allotment of apartment No.B-1108 in the Opposite Party No.1 project known as “Brigade Palmsprings”.  The Opposite Party No.2 is the Vice President-Marketing who represented the Opposite Party No.1 in its correspondences.  On 22.03.2010 the complainant was issued with an allotment letter and the complainant paid a sum of Rs.18,56,712/-.  The complainant has paid the amount as per the schedule on receiving the ‘Demand Statement’ from Opposite Party No.1 and totally has paid Rs.80,35,198/- as on 30.08.2010 to the Opposite Party No.1.  On 07.04.2010 the complainant received the Agreement of Sale, but, the same has mistakes in the layout plan of the apartment allotted to the complainant when compared with the actual layout at site.  The complainant brought the same to the notice of the Opposite Parties and the Opposite Parties have agreed to revise the drawings and carryout the corrections.  However, the complainant has not received the corrected plan and the Agreement of Sale till date.  The complainant also not satisfied with the fire safety provided in the said condominium particularly at floors 2 to 13 since there was only one stair case at each wing and the same may not be available to the residents residing at floors 2 to 13, but, the Opposite Party failed to solve the problem. 

3.      On 16.11.2010 the Opposite Party gave three options which rejected in toto vide his letter dt.18.11.2010 wherein he had clearly stated the reasons for not accepting the options offered to him.  The complainant paid money whenever the Opposite Party sending Demand Statement, but, the Opposite Party had not executed the Agreement of Sale after rectifying the errors pointed out by the complainant.  The complainant never cancelled the booking therefore, the contention of the Opposite Party threatening to forfeit the booking amount as per clause 2 of the terms and conditions of the allotment letter is illegal.  The complainant is willing to execute the Agreement of Sale subject to the rectification pointed out by him.  Hence, the complainant issued a legal notice to the Opposite Party demanding to refund Rs.80,35,198/- with interest at 18% p.a. from the date of respective payment within 15 days of receipt of the notice.  The Opposite Party No.2 replied stating that they offered the complainant to refund the amount paid without any interest.  Hence, the complaint.

4.      After service of notice, the Opposite Parties appeared through their counsel and filed version and contended that the complaint is not maintainable either in law or on facts and liable to be dismissed in limine with costs.  The complaint is frivolous and vexatious and filed with malafide intention.  The complainant suppressed the material facts and also complaint is barred by time and deserves to be dismissed on this ground alone.  The Opposite Party denied all the allegations made in the complaint both on facts and on law. The Opposite Party contended that the complainant clandestinely with malafide intention has complained to the authorities of Fire Department that fire safety standards were not met and hence approval ought not to be granted unless the changes to the fire safety standards as suggested by the complainant were complied with.  The Opposite Party also denied the mistakes in the Agreement of Sale as alleged by the complainant.  The Opposite Party further contended that the complainant was well aware that if the complainant does not go for execution of the Agreement of Sale within 10 days of receipt of the agreement, then the payments made to the Opposite Party No.1 shall stand forfeited at their option.  It is pertinent to mention that the authorities have duly approved the plans and the Fire Department has granted necessary permissions clearly indicating that the project was in compliance with law and took into account all the safeguards that were required to be taken including fire safety.  None of the other 200 residents of the project ever made a complaint in this regard.  As far as the Opposite Party No.2 is concerned, it is not a necessary party as he is neither a trader nor a service provider, hence, the complaint against Opposite Party No.2 is not maintainable in law.  Even then inspite of ready to execute Agreement of Sale in favour of complainant, the complainant came with false allegation and filed this false complaint without any basis, hence, prayed for dismissal of the complaint.

5.      The complainant has filed his affidavit evidence and marked documents at Ex.C-1 to C-18.  The Opposite Parties have also files affidavit evidence and marked documents at Ex.R-1 to R-24.  Both parties have filed their written arguments.

6.      On perusal, the following points will arise for our consideration;

(i)       Whether the complaint deserves to be allowed?

(ii)      What order?

          7.      The findings to the above points are;

                   (i)       Positive

                   (ii)      As per final order

REASONS

8.      On going through the pleadings, affidavit evidence and documents, there is no dispute that as per the request made by the complainant, the Opposite Party has allotted flat bearing No.B-1108 in their project known as Brigade Palmsprings and Agreement of Sale was also executed after payment by the complainant.  The only dispute raised by the complainant is that the Agreement of Sale had mistakes in the layout plan of the apartment allotted to the complainant when compared with the actual layout at site, error in unit of dimension for the floor tiles, security arrangement of the utility space and Balcony.  The complainant also not satisfied with the fire safety provided in the said condominium particularly at floors 2 to 13 since there was only one stair case at each wing and the same may not be available to the residents residing at floors 2 to 13.  In this regard the Opposite Parties have not provided a satisfactory solution to the complainant.  The Opposite Parties sent a letter dt.16.11.2010 to the complainant by giving three options which the complainant has rejected in toto vide his letter dt.18.11.2010 wherein clearly stated the reasons for not accepting the options offered to him.  In the affidavit of Opposite Party, they have sworn that they sent Agreement of Sale to the complainant for signatures to record the understanding between the parties, but, the complainant started making baseless allegations for not signing the agreement.

9.      After considering the arguments, we are of the opinion that the Opposite Parties are bound to correct the mistakes found by the complainant in the Agreement of Sale and also the issue regarding fire safety, but, the Opposite Party did not do so.  Till today the Opposite Parties have not given possession of the apartment to the complainant or refunded the amount of Rs.80,35,198/- paid by the complainant along with interest.  As the complainant is not satisfied with the terms and conditions made in the Agreement of Sale and not rectified the same till today amounts to deficiency in service on the part of the Opposite Parties.  Hence, we are of the opinion that the Opposite Parties are bound to refund the amount paid by the complainant with interest.  Hence, the following;

ORDER

The complaint is allowed.  The Opposite Parties are directed to refund a sum of Rs.80,35,198/- to the complainant with interest at 12% p.a. from the date of receipt of the legal notice, till realization. 

The Opposite Parties are further directed to pay a sum of Rs.1,00,000/- towards compensation for deficiency in service and Rs.25,000/- towards cost of litigation to the complainant. 

The Opposite Parties are granted 30 days time from this date to comply the Order.

Forward free copies to both the parties. 

                                       Sd/-                                                                                   Sd/-

                                MEMBER                                                                      JUDICIAL MEMBER

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