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

DATED 18^th DAY OF FEBRUARY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This is a complaint has been filed under Section 35 of C.P.Act, 2019 (herein after referred as an Act) for the following reliefs against the OPs:-

(a) Direct the OPs to pay to the complainant Rs.55,51,000/- along with interest at 18% p.a. 14.06.2017 to till date towards refund of the application money paid at the time of booking villa.

(b) Direct the OPs to pay to the complainant Rs.10,00,000/- for deficiency in service.

(c) Direct the OPs to pay to the complainant Rs.10,00,000/- for mental agony/harassment.

(d) Direct the OPs to pay to the complainant Rs.25,000/- towards the cost of legal expenses and

(e) Pass any other order/orders which this Hon’ble Commission may deem fit in the facts and circumstances of the case.

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

The OP No.1 being the developer and OP Nos.2 to 4 being the owners of residential converted land bearing survey No.43/3 entered into joint development agreement dated 21.06.2010.  The OP Nos.1 to 4 executed registered agreement of sale of undivided share of land and construction agreement dated 14.06.2017 in favour of the complainant.  The complainant has obtained loan from OP No.5 for payment of sale consideration. 

3. It is further case of the complainant that till January, 2020 the OP No.1 failed to complete the construction and expressed his inability to take necessary permission. 

4. After taking loan, the complainant was paying monthly installment to OP No.5.  The OP No.5 demanded the complainant to repay the loan of Rs.46,67,338.25.  The construction work is not completed due to the fault of OP Nos.1 to 5.  There is a tripartite agreement between the complainant and OPs.  The OP No.5 informed the complainant that her loan has become non-NPA.  The OP Nos.1 to 4 neither completed the construction work nor paid the earnest money.  This act of the OPs amounts to deficiency of service.  Hence, this complaint.

5. In response to the notice, OP Nos.2 to 4 only appear and file objection.  OP Nos.1 and 5 failed to appear before this Commission and they have been placed exparte.

6. OP Nos.2 to 4 contend that the complaint is mis-conceived and unsustainable in law.  The complainant is neither the consumer nor there is a consumer dispute.  The complaint is bad for non-joinder of necessary and proper parties.  Mr.Syed Yasir Rizvi is Managing Director of OP No.1 and being the GPA holder is responsible for all the transactions.  He is not made as party to this proceeding.  The OP Nos.2 to 4 neither engaged in construction of house, apartments, villas, building nor other infrastructures.  They are not aware of the presence of OP No.1 in Bangaluru.  They have not received any consideration amount from the complainant.

7. They admit registered joint development agreement between them and OP No.1 and OP No.1 being the developer agreed to give 30% of the constructed portion to them.  They deny that they have entered into tripartite agreement dated 22.07.2017 with OP Nos.1 and 5.  They are not liable to pay any amount to the complainant.  There is no deficiency of service on their part.

8. The Hon’ble Arbitrator passed an award dated 19.08.2019 in their favour.  They request to dismiss the complaint.

9. The complainant filed her affidavit evidence and relies on seven documents.  Affidavit evidence of GPA holder of OP Nos.2 to 4 is filed and OP Nos.2 to 4 relying four documents.  Heard the arguments and perused the records.

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

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

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

       Point No.1:  Affirmative in part

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

12. Point Nos.1 and 2:  Both the complainant and OP Nos.2 to 4 reiterated the facts pleaded in the complaint and version in their affidavit evidence.  The OP Nos.2 to 4 have denied their responsibility to pay any amount to the complainant.  The OP Nos.2 to 4 admit registered joint development agreement between them and OP No1.
13. It is admitted and proved that the OP No.1 company is the developer and OP Nos. 2 to 4 are owners of property bearing survey No.43/3.
14. In order to appreciate respective contention of the parties, we would like to refer the documents produced by both the sides.  Document No.1 is tripartite agreement between the complainant, OP No.1 and OP No.5.  OP No.5 is financier from whom complainant had availed loan to purchase flat from OP No.1 developer.  The recitals of tripartite agreement are not in dispute.  OP Nos.2 to 4 are not parties to this tripartite agreement.  This tripartite agreement has no binding on them.  It is proved from Annexure-2 that the complainant availed loan of Rs.43,34,89.50 on 31.07.2017 from the OP No.5 IAFL Home Loan.  It is relevant to note that the complainant neither paid any amount to OP No.5 in respect of sale agreement and construction agreement and OP No.5 is not liable to pay any amount to the complainant.  Therefore, claim of the complainant against OP No.5 is not maintainable.  There is no deficiency of service on the part of OP No.5, so far the agreement of sale and construction agreement relied by the complainant. 
15. It is born out from the document No.3 dated 22.07.2017 that OP No.1 addressed a letter stating that the costs of the flat No.D806 to be sold to the complainant was Rs.55,51,000/-.  The complainant has produced a bunch of receipts under document No.4 for having paid Rs.5,62,000/- on 28.07.2017, Rs.3,50,000/- on 26.07.2017 and Rs.2,00,000/- on 24.07.2017 to OP No.1.  This bunch of three receipts indicates that the complainant made the payment of Rs.11,12,000/- to OP No.1.
16. Annexure-5 is the agreement of sale between OP Nos.2 to 4 and OP No.1 and Mrs.J.Kasturiammal and Mrs.S.Dhanalakshmi and complainant.  We carefully perused this agreement, wherein the OP No.1 being the developer agreed to sell schedule ‘B’ property to the complainant and accepted receipt for Rs.1,00,000/- from the complainant.  Under this agreement, the complainant has not paid any amount to the OP Nos.2 to 4.  It means, the complainant has paid Rs.12,12,000/- only to the OP No.1 under Annexure 4 and Annexure 5.  The complainant has not set up the case either in the complaint or adduced evidence to show that the OP Nos.2 to 4 have received amount from the complainant in the year 2017.  Annexure 6 is the construction agreement dated 14.06.2017 between complainant and OP No.1 only. The complainant and OP No.1 entered into the construction agreement at a cost of Rs.38,38,301/- and complainant being the purchaser also agreed to pay Rs.3,08,000/- towards charges for BESCOM/BWSSB deposits, DG Set/power back-up charges, legal document charges etc.,  OP No.1 being the developer gave an assurance to the complainant that he will provide constructed flat to the complainant.  It is proved that the OP No.1 having received Rs.12,12,000/- from the complainant not complied his responsibility.
17. The complainant having produced receipt Annexure-7 legal notice dated 14.01.2020 called upon the OP Nos.1 to 4 to return the advance money. Even though, complainant has referred in para 4 of this notice that IAFL Home Loan i.e. OP No.5 insisted the complainant to repay the loan of Rs.46,67,338.25.  Even though, complainant has availed loan of Rs.43,34,889.50 on 31.07.2017.  There is no evidence to show that she has paid this amount to OP Nos.1 to 5.  In fact, the complainant availed loan from OP No.5.  But, she wrongly filed a complaint against Op No.5 request this commission to direct all the OPs to refund Rs.55,51,000/- and pay compensation of Rs.20,00,000/- and Rs.25,000/- cost of litigation.  The complainant neither pleaded nor proved that OP No.5 disbursed loan amount to OP No.1 under such circumstances loan amount to be excluded from refund clause.
18. The OP Nos.2 to 4 denied their liability, but they admit that they request general power of attorney in favour of Dhanpal who has filed affidavit evidence on behalf of OP Nos.2 to 4.  There is joint development agreement on 17.06.2010 between OP Nos.2 to 4, M/s J.Kasturiammal and M/s Dhanalakshmi is the owner of the property and M/s Canopy Estate Pvt. Ltd., developer i.e OP No.1.  M/s Canopy Estate Pvt. Ltd., was represented by Syed Yasir Rizavi as Managing Director.  The complaint is filed against M/s Canopy Estate Pvt. Ltd., represented by Managing Director Syed Yasir Rizavi.  Therefore, there is no substance in the complaint and OP Nos.2 to 4, Syed Yasir Rizavi is not made as a party to this proceeding.
19. OP Nso.2 to 4 have produced document No.3.  An award passed by sole Arbitrator in AC No.17/19 against OP No.1 on 19.08.2019.  It is true that the complainant has not party to this Arbitrator proceeding, but the OP Nos.2 to 4 and others have obtained award against OP No.1.
20. The counsel for OP Nos.2 to 4 has referred the following decisions:-

1. Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd., and another in Civil Appeal No.3302/2005 of the Hon’ble Supreme Court of India.
2. Sanjeev Agarwal and others Vs. M/s Canopy Estates (P) Ltd., in CC No.547/2018 dated 19.09.2018 of the Hon’ble National Commission.

21. We carefully perused the facts and ratio of these two decision which are not applicable to the present case on hand.
22. The complainant has failed to prove that she has paid amount to the OP Nos.2 to 5.  In fact, the complainant has availed loan from OP No.5.  The complainant is able to prove the payment of Rs.12,12,000/- only to OP No.1.  OP No.1 failed to refund this amount.  This act of the OP No.1 amounts to deficiency of service.  There is no deficiency of service on the part of OP Nos.2 to 5. Therefore, OP Nos.2 to 5 are not liable to pay any amount to the complainant.
23. The complainant claims interest as well as the compensation. The amount of Rs.12,12,000/- of the complainant has been locked with OP No.1 from the respective dates of payment.  Therefore, complainant is entitled to compensation from OP No.1 only.  In addition to order for refund of Rs.12,12,000/-.  The complainant is also entitled to Rs.1,00,000/- as compensation from OP No.1.
24. Point No.3:- In view of the discussion referred above, the OP No.1 is liable to refund Rs.12,12,000/- with compensation of Rs.1,00,000/-. OP No.1 is also liable to pay cost of litigation Rs.15,000/- to the complainant.  The complaint requires to be dismissed against OP Nos.2 to 5. We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part against OP No.1 only.
2. The OP No.1 shall refund Rs.12,12,000/- with compensation of Rs.1,00,000/- and litigation cost of Rs.15,000/- to the complainant.
3. The complaint against OP Nos.2 to 5 is dismissed.
4. The OP No.1 shall comply this order within 60 days from this date.  On failure to comply this order, the OP No.1 shall pay interest at 10% p.a. on Rs.12,12,000/- after expiry of 60 days till final payment.
5. Furnish the copy of this order and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 18^th day of February, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OP Nos.2 to 4 which are as follows:-