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

DATED 25^TH DAY OF JULY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to complete the construction by comply with the promise made in the agreement of sell dated 02.09.2013 to the complainant.
2. Order the OP to make payment of Rs.10,00,000/- as damages being the loss of income caused due to withholding the amount of Rs.28,00,000/- without delivering the apartment as agreed under the agreement to sell dated 02.09.2013 till delivery of possession of the schedule property to the complainant.
3. Pay Rs.28,000/- per month from January 2024 and continue to pay Rs.28,000/- p.m. to our client till delivery of possession of schedule property to him as per as damages for having deprived the complainant from occupying the same
4. To pay Rs.5,00,000/- as compensation and Rs.2,00,000/- as cost incurred due harassment.
5. Pass such other direction that this Hon’ble Commission deems fit

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

It is the case of the complainant that he had booked two flats No.301 and 302 in the E Block, in the apartment building known as Maxworth City going to be constructed on residentially converted land in new Sy.No.14/2, measuring 1 acre and converted for non-agricultural residential purpose, situated at Doddabettahalli, Bangalore North Taluk, for a total sale consideration of Rs.28,00,000/-.  They have entered into a sale agreement and the OP has received the advance sale consideration of Rs.10,00,000/- and agreed to receive the balance consideration at the time of execution and registration of the sale deed in favour of the complainant in respect of the schedule property. The time fixed for 30 months for completion of the transaction on complying with class IV of the agreement. 

3.       The complainant on the request of the OP has paid the entire sale consideration amount of Rs.18,00,000/- so that it will help the OP for speedy construction of the completion on 18.09.2013 itself.  The complainant in all has paid the entire agreed sale consideration of Rs.28,00,000/- as advance sale consideration to the OP. 

4.       After received the entire sale consideration, the complainant has approached the OP as they have not completed the construction.  When the complainant has requested the OP they have expressed that they require another 11 months to complete and they have also executed an Addendum to the Agreement of Sale dated 16.09.2014. They have fixed the time on 16.09.2014 to comply with the terms of the agreement dated 02.09.2013.  Again the OP took another 11 months time and executed second addendum to the agreement to sell on 10.01.2017.  The OP has not completed the construction.

5.       The complainant in the meantime came to know through newspaper advertisement that the insolvency resolution process was started by Hon’ble NCLT under the provisions of insolvency and Bankruptcy Code 2016 through its order dated 05.01.2018. The OP has got relief from NCLT on 18.07.2018 by dropping the same.  Though the construction was resumed but the same came to complete halt once the covid 19 pandemic started.  After that the complainant has requested the OP to complete the same and register the sale deed. In view of the negligent act and inordinate delay on the part of the OP the complainant has suffered loss and mental agony.  The Ops are liable to pay compensation to the complainant for their unfair trade practice delay in completing the project.  Hence the complainant has filed this complaint.

6.       After registration of the complaint, notice has been issued to OP and they have appeared later and filed their version.

7.       It is the case of the OP that the allegations made in para 1 of the complaint is not within the knowledge of the OP. The complaint is barred by limitation and it is not maintainable either in law or on facts and liable to be dismissed with exemplary cost.

8.       It is the case of the OP that they are the land developers and doing registered real estate business and they have acquired goodwill and reputation as compelled to other real estate companies all over India. The main work of the company is to purchase the land and form layouts construction of flats and selling the same to prospective purchasers in the name and style of M/s Maxworth Realty India Limited and having their main office at Bangalore and other cities in Karnataka state.  The OP is the land developer and builders of land into residential/commercial and also selling the same since 20 years. The OP has published an advertisement in newspaper with regard to forming of residential vacant flats in the name and style of Maxworth City.

9.       The OP admitted about the transaction took place between the parties in respect of flat No.301 and 302 in the apartment Maxworth City which is going to be constructed on residentially converted land bearing new No.14/2. They have obtained the conversion order on 18.10.2008. The complainant has paid the entire consideration.  The complainant has not paid the registration charge as per the general terms and conditions even after lapse of 10 years.  The OP has denied all the other allegations made by the complainant. As per the general terms and conditions of the company point No.8, in case of cancellation of booking by purchaser this OP will not liable to pay any interest on the booking amount paid.

10.     The complainant has not given letter to the OP company within the period.  The complainant has come to the office of the OP only twice on 03.09.2013 and 02.09.2013 and paid the entire amount of Rs.28,00,000/-.  After that the complainant has not yet come to the OP.  As per the general terms and conditions of point No.10 the sale agreement will be executed only on 30% of the payment of the total consideration but the complainant has paid only Rs.28,00,000/- and after that the complainant has not at all paid the registration of the agreement till today.  Hence this OP has not executed the sale deed.  Even after lapse of 12 years the complainant has not met the company officials, which clearly shows that the complainant is not at all interested for the plots and his intention is only to make money by way of interest and compensation along with the flat value.  For this reason the complainant has not sought for the flat but only seeking the money.  This OP is ever ready to register the flat in the name of the complainant if he paid the registration amount to the OP.  Even now they are ready to hand over the flat No.301 and 302 to the complainant, if he is ready and willing to pay the registration charges.

11.     It is further case of the OP that for having invested huge capital amount for the above said project it is very difficult for them to refund the advance amount paid by the complainant and also the terms and conditions of the contract do not provide for the same which is very much within the knowledge of the complainant.  If the complainant is not willing to come forward to pay the amount, in   such an event the OP can refund the amount after making deduction of 15% of the sale consideration amount by the complainant without any interest in accordance with the terms and conditions of the transaction of the above project for the inexcusable delay in claiming the refund of the sale consideration amount.  

12.     It is further case of the OP that there is no deficiency on their part and the transaction is not completed due to the negligence on the part of the complainant himself and lethargic approach of the complainant.  The complainant has claimed refund of the advance amount paid by him after completion of 10 years after payment of registration amount, which itself is self explanatory to show that the complainant has not approached this commission with clean hands. There is no cause of action to file this complaint. Hence the complaint is not maintainable and liable to be dismissed. This commission may order this complaint to get the registered sale deed in his favour by paying registration amount or dismiss the complaint with cost in case the complainant is not willing to get register the site.

13.     Complainant has filed his affidavit evidence.  The complainant has produced documents which are marked as Ex.P1 to Ex.P6.  The OP has not filed affidavit evidence but only filed written arguments. Heard the counsel for complainant.

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

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

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

Point No.1:  In the Negative

Point No.2: In the Negative

Point No.3: As per final orders

REASONS

16. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of the complainant, written argument of the OP.  
17. We have perused the documents produced by the complainant.  Copy of the sale agreement marked as Ex.P.1, copy of the receipt, marked as Ex.P2, Copy of the addendum of agreement to sale, marked as Ex.P3 and P4, Copy of the claim before the NCLT, marked as Ex.P5, Copy of the letter, marked as Ex.P6.
18. We have perused the averments, affidavit evidence and documents. The complainant with an intention to purchase two flats bearing No.301 and 302 in E Block,  in the proposed project Maxworth City at Doddabetta Halli, has paid a total amount of Rs.28,00,000/- as advance sale consideration amount and entered into an agreement of sale on 02.09.2013.  Even though the OP has received the entire sale consideration amount has not completed the construction and whenever the complainant has demanded he has executed addendum to the registered agreement as per Ex.P3 and P4.  Even after lapse of 22 months after execution of Ex.P3 and P4, the OP failed to complete the construction and to execute the registered sale deed in favour of the complainant. 
19. After that the proceedings were started before the NCLT under the provisions of insolvency and Bankruptcy Act 2016 and the proceedings were dropped in the year 2018.  Even though the construction was resumed the OPs failed to complete the construction due to the covid-19 pandemic problem.  The OPs have never try to complete the construction even after the covid 19 pandemic problem was over. Inspite of the request made by the complainant, they failed to complete the construction and hand over the flat in favour of the complainant.  The complainant has entered into the agreement in the year 2013 and even after lapse of 10 years the OP failed to complete the construction and hand over the flats in favour of the complainant. 
20. Even though the OP has not led any evidence have submitted their written arguments with documents stating that the complaint itself is not maintainable. The complainant is not a consumer.  The contention taken by the OP is that they are registered company and they have purchased one acre of land under registered sale deed.  The complainant has entered into sale agreement after this OP has formed a layout on 02.09.2013 for purchasing of the sites by paying the advance sale consideration.  Since the OP is the absolute owner and the complainant is the agreement holder for the immoveable property of site and there is no promise for any service to the complainant. In the event of any breach the complainant has to approach the civil court.  This commission has no jurisdiction to entertain this matter.  The complainant entered into the agreement with the OP for the commercial purpose. Hence the C.P.Act is not at all applicable.
21. The complainant entered into agreement for purchase of six flats in number 301, 302, 303, 304 of E Block, G01, G02 of F Block only with a sole intention of misleading the court. He has filed three separate complaint before this commission. In this case he has included two flats similarly in other cases i.e., in CC No.500 and 503 and this case he has included the six flats. Which clearly demonstrate that he has entered into agreement for commercial purpose only and the agreement clearly discloses that he has entered into agreement with the OP as an investor.  There is a specific clause mentioned in the agreement that the OP should execute the sale deed to his nominee. Hence the complainant is not a consumer and this commission has no jurisdiction.
22. There is an inordinate delay on the part of this complainant. The agreement itself is barred by limitation instead of approaching the civil court he has approached this commission and hence the complaint is not maintainable.
23. It is further specific case of the OP that due to long term litigation with respect to the property involved in this agreement, since the same was acquired by BDA for formation of Shivaram Karanth layout and after long litigation the Hon’ble Supreme Court dropped the acquisition of that land which was already developed in that regard to form the committee to adjudicate the dispute. As on today the land is before the Shivaram Karanth Committee. The complainant being the investor is aware of all these factor.  After entering the agreement with this OP the complainant entered into several other contract with the OP.  In that contract the sale deeds which were entered between the complainant and OP, the amount mentioned in the agreement dated 02.09.2013 has been adjusted in those contracts. These facts clearly demonstrate that the complainant is the investor and he invested the money and entered the agreement for commercial purpose.  The complainant has filed the claim petition before the insolvency resolution process stating that he is a financial creditor which clearly demonstrate that he is not a consumer and he is only an investor.  
24. In support of their contention the OP has also filed the copy of the plaint in O.S.No.891/2024 on the file of CCH 88 and also the copy of the five sale deeds executed by OP firm and partners firm M/s Anandam Firm represented by Mr.Praveen Kumar Grande to Srikanth S Kathre, Naveen Kumar, V Chandru, Farooquillah and Daly Paul.  The OP has also produced the copies of the partnership deed of T.Vasanth Kumar and other investors.
25. It is clear from the agreement entered between the complainant and the OP for purchase of six flats that
26. Even though he has entered into agreement with OP for purchase of six flats has filed three separate cases in CC No.500 and 503 and this case, totally including six flats.  In addition to this the complainant has also appeared before the NCLT and filed claim petition before the Insolvency Resolution process stating that he is a financial creditor.
27. In addition to this there is a long term litigation in respect of the property involved in the agreements entered between the complainant and OP since the land was acquired by BDA for formation of Shivaram Karanth Layout and the same was dropped by the Hon’ble Supreme Court. Now the dispute is pending before the Shivaram Karanth Committee.  The sale deeds and also the copies of the plaint produced by the OP and also the copy of the sale deeds executed by the complainant and others represented by one Praveen Kumar Grande on behalf of M/s Anandam Firm clearly discloses that the complainant has agreed to purchase all these flats not for residential purpose and it is only for commercial purpose. Under these circumstances, the complaint filed by the complainant is not at all maintainable before this commission.  This commission has no jurisdiction to try this complaint since the very purpose the complainant entered into agreement is for commercial purpose. Therefore the complainant is not entitled for any relief. Hence we answer the above Point No.1 and Point No.2 in the Negative.
28. Point No.3:  In the result, we pass the following:

O R D E R

1. The complaint is Dismissed. No costs.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 25^th day of JULY, 2024)

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

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

NIL