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

DATED 07^thDAY OF NOVEMBER 2024

ORDER

SMT. K. ANITA SHIVKUMAR, MEMBER

1.Complainant filed this complaint under section 35 of the consumer protection Act 2019, seeking direction to OP.

1. Directing the OP to fix a date for registration of the sale deed in respect of the schedule property by furnish the Occupancy certificate, issued by BBMP in respect of the schedule property and all title deeds and other revenue documents and to execute the registered sale deed by receiving the balance sale consideration amount.
2. If OP failed to do so, Directing the OP to refund the amount of Rs.50,00,000/- (Rupees fifty lakhs only) with interest of 18% per annum from the date of agreement till realization.
3. Award damages amounting to Rs.50,000/- towards the harassment, pain, suffering, nervousness and humiliation caused by the OP and such other reliefs.
4. Pass such other suitable order/s deems fit to grant under the circumstances of the case including the orders as to the costs of this compliant, in the interest of justice.

2. Brief facts of this case are as follows:-

Complainant stated in the complaint that OP is developer and promoter having registered office at above mentioned address, engaged in business of land developing, formations of layouts, construction of apartments and selling flats etc., OP being developer has introduced to complainant through advertisement and given vide advertisement that OP is going to construct residential apartment building situated at Rachenhalli, K. R. PuramHobli Bangalore East Taluk complex known as “N. R. Orchid gardenia” (RERA Registration No.U70102KA2007PTCO44575). Complainant instructed to purchase the flat in the said apartment along with 918.20 sq.ftof undivided share, right title interest in the entire land. Accordingly, complainant have shown interest to purchase flat bearing No.02 (ground floor situated at ‘A’ Block) measuring 2660 sq. ft. of super built up Area, OP fixed total consideration in respect of apartment building along with undivided share with car parking of sum of Rs.1,00,00,000/- ( RupeesOne Crore).

3. Complainant further stated that out of the above said sale consideration, complainant has paid sum of Rs.50,00,000/- to OP.She paid sum of Rs.25,00,000/- by way of cash, and another sum of Rs.15,00,000/- and Rs.10,00,000/- by way of cheque dated 09/12/2013 in bearing no: 067969 drawn on ShriRam Co-operative bank limitedBangalore and cheque bearing no: 587824 drawn on ING Vaishya Bank Bangalore respectively. In this regard OP have executed an agreement of sale in favor of the complainant in respect of flat No.02 majoring 2660 sq.ft. of super built up area and OP have informed that the next payment will be collected through a reminder. When the complainant has to pay further amount as per mentioned in the agreement of sale dated 11/12/2013 and also agreed to provide all relevant documents in respect of the entire land to the complainant.

4. Complainant further stated that as per the agreement dated 11/12/2013, next payment has to be paid on or before 20/02/2014 and for making payment.  Complainant kept on visiting to OPs office in order to pay further payment of Rs.50,00,000/-, but OP not taken further payment, instead they have informed that they will send intimation / reminder about the further payment. Believing the version of OP, the complainant returned back. After lapse of so many months, OP fail to inform about the next / further payment and the complainant have trying to contact OP to enquire about the construction work and payment. But complainant allege that whenever approaches OPs office, they have not responded properly. Complainant’s best efforts went in vain. Complainant stated that she was always ready and willing to get registered sale deed in her favor. In this regard she approached OP several times, OP have postponed the same on one or the other reason. Though complainant was ready with the balance amount and also she is willing to get the flat registered as per the terms of the agreement in her favor. She also requested to furnish occupancy certificate issued by BBMP and other necessary documents, title deeds and other relevant Revenue documents by receiving balance sale consideration amount. On the assurance of OPs, complainant approach her banker for the financial aid and paid the process fee and also gave her precious to time to complete the bank formalities. But OP have not come forward to handover relevant documents and complete the sale transaction, failed to perform their duty.

5. Complainant having no other option, filed complaint before honorable Karnataka Real Estate Regulatory Authority same has registered as complaintNo.CMP/UR/211027/0008476 for the relief of direction to execute the registered sale deed. In favor of the complainant the same is dismissed as not maintainable. On 11/04/2023 holding that as the transaction has been taken place much prior to enactment of RERA Act, with liberty to approach appropriateforum to resolve the grievance of the complainant.She stated that she is residing in the rented house by paying monthly rent of Rs.15,000/-, believing OP will be execute the sale deed and handover the possession in agreed period. But OP  have utterly failed to perform their duty, caused mental agony, financial loss to her. After lapse of many years OP fail to execute the sale deed, to furnish occupancy certificate issued by BBMP and other relevant title deeds, other revenue documents by receiving the balance sale consideration amount from complainant. OP caused deficiency of service which is to be compensated by providing direction as referred Supra.

6. OP represented through its counsel filed version along with board resolution copy.In the version OP contends that complainant has suppressed material facts before this honorable commission. Complainant prior to the initiative to this complaint, had filed complaint before the jurisdictional police station and the jurisdictional police have registered NCR pertinent to the complainant’s complaint. Thereafter, complainant initiated proceedings before honorable RERA which is dismissed on the ground that it is not maintainable. Subsequently again initiated 3^rd proceeding before this commissionpertinent to sale agreement dated 11/12/2013. OP also contends after lapse of 10 years from the date of sale agreement dated 11/12/2013 has filed this complaint, is bound to be dismissed.

7. OP admitted that complainant intended to buy a flat and approached OP.Also admitted that OP offered flat bearing No.002 ground floor of A block in the project named, “ N. R. Orchid Gardenia” with super build up area of 2660 sq. ft with one covered car parking space in the basement for Rs.1,00,00,000/-. OP stated that the complainant and OP signedan agreement of sale dated 11/12/2013 with respect to flat bearing No.02. however, this agreement of sale was terminated mutually by both parties. The amount received underan agreement of sale was refunded. This important fact is suppressed by the complainant before this commission. OP again stated that balance sale consideration was to be paid on or before 20/02/2014. However, complainant fails to come forward and take up registration of sale deed in her favor. Thereafter, OP and complainant mutually terminated the agreement of sale dated 11/12/2013. OP had secured occupancy certificate with respect to the project way back in the year 2016 itself. The project was completed the year 2016 and all the apartment were sold to the prospective purchasers in the year 2016 itself. The samehas been suppressed by the complainant in the complaint. Complainant has filed complaint before honorable RERA,have made a specific finding in its order dated 11/05/2023

8. ‘From the materials available on record, it is apparent that the respondent has completed the project in the year 2016 and has obtained occupancy certificate issued by the Competent authority on l15/11/2016 which is part and parcel of the Complainant’s flat No.A -002 which is much before the RERA Act came into force wef 01/05/2017. From this it is clear that the said project has been completed and the respondent has obtained occupancy certificate before the enactment of RERA Act.

9. Hence the complainant is trying to protract the above issue by going to various forums without any cause of action. Hence OP submitted that there is no deficiency of service on their part. Complainant herself suppressed many material facts. Hence, OP prays to dismiss the complaint with exemplary cost.

10. At this stage complainant has adduced her evidence by filing affidavit. In support to the affidavit evidence of the complainant, she has produced 5 documents which are marked as Ex.P1 to Ex.P5. Subsequently authorized from OP companyone Manjunath K.lead  evidence on their behalf. Accordingly authorized representative of OP filed affidavit evidence with 3 supporting documents which are marked as Ex.R1 to Ex.R4 including board resolution copy. Both the counsels filed their written arguments and also submitted their oral arguments. Heard both the counsels and perused the materials on record.

11. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant has proved the deficiency of service on the part of OP?

ii) Whether complainant is entitled for the relief?

iii) What order?

12. Our answers to the above points are as follows:-

                        Point No.1:- Affirmative.

                        Point No.2:- Partly Affirmative.

                        Point No.3:- As per the final order.

REASONS

13. Point No.1 and 2: These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

14. By perusing the pleadings made in the complaint and the version, it is admitted that complainant has shown interest to buy residential apartment situated at Rachenahalli, K. R. PuramHobli Bangalore east taluk in the project name “ N. R. Orchid gardenia”, from OP. it is undisputed that complainant has also shown her interest to purchase flat bearing NO.002 in A block of ground floor measuring 2660 sq. ft. For that she has paid Rs.50,00,000/- to OP in 3 different mode of transaction. One by way of cash, she paid Rs.25,00,000/- to OP, a sum of Rs.15,00,000/- and Rs.10,00,000/-paid by way of cheque dated 09/12/2013to OP. OP and the complainant has entered into an agreement on 11/12/2013 which is at Ex.P1.In the said agreement of salediscloses that payment received by the OP as stated by the complainant in the complaint. Out of 1 crore, complainant has paid Rs.50,00,000/- to the OP in the year 2013 itself. At the same time OP asked complainant to pay balance amount of Rs.50,00,000/- to be paid on or before 20^th February 2014. OP has not shown their project development to the prospective purchases like complainant after several request made by her. She approached K-RERA for the relief to her payment. But the said authority has disposed the matter as the case is not maintainable and given a liberty to approach appropriate forum to resolve her grievance. They also observed that OP has completed the project in the year 2016 and has obtained occupancy certificate issued by competent authority on 15/11/2016 which is part and parcel of the complaint, which is much before the enactment of the RERA Act. On the same ground K-RERA has dismissed the complaint, as not maintainable. The order copy of K-RERA is at Ex.P2.Later complainant has caused legal notice to OP dated 30/08/2023 which is at Ex.P3 calling upon OP to register the sale deed, to furnish occupancy certificate issued by BBMP in respect of scheduled property. The legal notice is duly served on OP which is at Ex.P5 but not responded to the legal notice of complainant. OP has produced statement of accounts, pertains to “N. R. Orchid Gardenia Apartment” having the account at the state bank of India in account bearing No.64124526470 which is Ex.R3.Through the statement of account,it is proved that complainant has paid Rs.10,00,000/- through cheque bearing No.067969 which is honored on 23/12/2013 and another cheque bearing No.587824 for Rs.10,00,000/- is honored on 11/12/2013. It shows complainant has paid Rs.20,00,000/- in total by way of cheque. But sale agreement discloses OP has receivedRs.25,00,000/-(Rs.15,00,000 &
Rs.10,00,000/-)  by way of cheque  in cheque bearing No.067969 and 587824. There is discrepancy in the statement made by OP though they have received Rs.15,00,000/- in the cheque bearing NO.067969. The account statement discloses in the said cheque Rs.10,00,000/- credited to the OPs account. In our considered view sale agreement is a material document to rely upon. Hence, OP has received Rs.15,00,000/- through cheque bearing No.067969.  There is no dispute with regard to the receipt of Rs.25,00,000/- received by way of cash. Hence in our considered view the sale agreement discloses Rs.50,00,000/- is collected from the complainant and the balance of Rs.50,00,000/- is to be paid within 20/02/2014. Hence the payment of Rs.50,00,000/- is undisputed here.

15. In the affidavit and written argument of OP. OP has taken contention that he has refunded the entire Rs.50,00,000/- to the complainant after the sale agreement was terminated mutually by both parties. With regard to prove the amount has been refunded by producing statement of account by OP in Ex.R3. OP refunded Rs.10,00,000/- through cheque bearing No.246461 which is entered dated 06/04/2017. The same has been refunded in the name of complainant only. Hence it is proved. The another payment made by OP through cheque bearing No.246438 for sum of Rs.20,00,062/-entered dated 09/12/2016 and another sum of Rs.15,00,064/-paid through cheque bearing No.246454 entered dated 01/02/2017 in the name of A Krishnaraju. Here as per submission of OPat the time of arguments, OP has refunded the amount to the complainant through cheque in favor of the A. Krishnaraju for sum of Rs.35,00,000/- in TOTO. At the same time, complainant agreed that she knows A Krishnaraju is a relative of her, is noway related to her payment. OP submitted that Rs.35,00,000/- is refunded to A Krishnaraju who has paid at the time booking of property on behalf of complainant. Therefore OP refunded Rs.35,00,000/- to the A. Krishnaraju’s account.Complainant denied the same.

16. Here we can observe that complainant has received Rs.10,00,000/- in the year 2017 itself towards refund of money from OP but complainant has not disclosed the same in the complaint and she could claim the balance amount which is due from OP but the complainant has claimed entire amount of 50,00,000/-, though she has received from OP Rs.10,00,000/- as per the statement produced in Ex.R3. It shows she has not clear in her complaint about her claim and also she suppressed important material facts before this commission. With regard to the submission of OP counsel that Krishnaraju has paid a partial amount on behalf of the complainant, is refunded to account of Krishnaraju , is not at all acceptable point. If at all Krishnaraju has paid on behalf of a complainant, property was in the name of complainant, OP has to refund the amount to complainants account only. the person who has paid the amount is immaterial here. OP fails to produce any letter with regard to the payment made to Krishnaraju and also with regard to  the termination of sale agreement. Therefore payment of Rs.35,00,000/- to Krishnaraju is unjustifiable by OP.Though the OP has produced statement of account demonstrating the name of Krishnaraju, in our considered view OP has not produced cogent evidence to prove the payment has made against complainant’s sale agreement termination. Believing Rs.10,00,000/- refunded  to the complainant that OP has produced supporting documentary evidence that they have refunded Rs.10,00,000/- back to complainant. More so complainant is suppressed the fact of amount received from OP and also cancellation of sale agreement long back. The occupancy certificate also produced before RERA, complainant has claimed the same in the consumer complaint by suppressing the facts. Hence the deficiency of service on the part of the OP in refunding balance amount to the complainant. Therefore OP is liable to refund Rs.40,00,000/- to the complainant, despite she claimed for Rs.50,00,000/- with interest of 18% which is unfair and unjust. Complainant is claiming Rs.50,000/- for the sufferings, humiliation and pain caused due to the deficiency of service by OP, which seems to be exorbitant and also complainant has also committed mistake by suppressing  the facts. Hence she is not liable for any compensation. She is entitled to get interest of at the rate of 10% per annum on Rs.40,00,000/- from the date of payment i.e, 09/12/2013. Therefore on the above reasons we answer point 1 & 2 accordingly

17. Point No.3: In view of the discussion referred above, we proceed to pass the following:-

:ORDER:

1. Complaint filed by the complainant under section 35 of the Consumer Protection Act 2019, is allowed in part.
2. OP is directed to refund Rs.40,00,000/- to the complainant with interest at the rate of 10% per annum from 09/12/2013, within 30 days from the date of order. Failing which OP is directed to pay interest at the rate of 12% per annum from the date of order till realization.
3. 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 07^THday of NOVEMBER 2024)

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

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