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

DATED 10^TH DAY OF JANUARY 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 pay Rs.7,98,405/- with interest at 18% p.a., from the date of filing this complaint till realization
2. Direct the OP to pay Rs.75,000/- as compensation towards mental tension.
3. To award cost of this proceedings.

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

The complainants were in search of a suitable apartment for their living and after coming to know about the development of the project by the OP namely Pariwar Pragathi at Kammanahalli, booked the schedule apartment No.C310, 3^rd Floor, Block C, having 121 sq. feet of built up area with one car parking on 05.08.2019.

3. It is further case of the complainant that they have initially paid a sum of Rs.2,00,000/- and thereafter entered into agreement of sale on 19.12.2019 agreeing to pay total sale consideration amount of Rs.60,00,000/-. Further the complainants states that on execution of the Sale agreement they have paid a sum of Rs.10,00,000/- and they have approached the SBI for housing loan. The SBI sanctioned a loan of Rs.40,00,000/- and the Tripartite Agreement was entered between SBI with the complainants and OP. The bank has disbursed a sum of Rs.16,00,000/- out of the sanction amount on 30.07.2020 and the complainants have paid a total amount of Rs.28,00,000/- to the OP.  
4. It is further case of the complainants that as per the agreement of sale the OP was supposed to complete the project including obtaining Occupancy certificate on or before December 2020, but the OP failed to complete the project in time and execute the Sale Deed and hand over the possession of the apartment. There was no progress in the construction of the apartment work mentioning. Despite the same the OP pressurize the complainant to pay further sum of Rs.29,00,000/-.
5. It is further case of the complainants that they came to know that a civil dispute in OS No.707/2020 was pending before the court at Bangalore, relating to this layout land.  Immediately the complainants have contacted the OP and requested him to give the details of the pending case. The OP gave them the copy of the plaint of the said proceedings and the complainant came to know that it was a claim on title.  The complainants have also requested the OP to get the dispute settled at the earliest. Despite dispute pending before the Court the OP has pressurized the complainant to pay the balance amount of Rs.29,00,000/-. There was no progress in the construction. The OP has also approached the RERA for extension of time for completion of the project and the RERA also granted permission and extended the time till December 2021 for completion of the construction. The OP had not taken any effective steps in completion of the project till December 2020 and the OP was only interested in money.  Finally the OP without taking into consideration delay in completion of the project pending suit claim against them unilaterally cancelled the booking of the apartment and also cancelled the agreement of sale and agreed to return the amount given by the complainants on 23.02.2021.
6. It is further grievance of the complainants that, the complainants have accepted the termination and accepted the refund of Rs.28,00,000/- paid by them. Despite several requests the OP did not refund the amount with interest at 18% p.a., and on 01.09.2021 they have remitted only Rs.15,55,268/- after a delay of seven months.  After clearing of the loan at SBI the complainant was able to collect the sale agreement receipts and they submitted the same to OP on 23.09.2021 and the OP issued a post dated cheque on 27.09.2021 for Rs.12,44,732/- and the same was dishonored due to insufficient funds, but however the OP refunded Rs.28,00,000/- to the complainant with delay without paying any interest.
7. As the OP did not give interest on refund of Rs.28,00,000/- the complainant issued legal notice on 08.01.2022 calling upon this OP to pay the interest @ 18% p.a., as the OP did not pay the same the complainant filed this complaint.
8. In response to the notice, OP appears and files version stating that the complaint is not maintainable and the complainants are not consumers as per the C.P.Act
9. The complainants have already received the advance amount and after termination of the agreement of sale and hence they are not consumers under the Act.
10. The OP have admitted about the booking of the flat by the complainants and also the advance amount of Rs.28,00,000/- paid by them.
11. It is further case of the OP that after execution of the agreement the complainants have approached the SBI for housing loan and got sanctioned a sum of Rs.40,00,000/- and entered into Tripartite Agreement on 13.07.2020.  As per the agreement of sale the complainants had agreed to pay the amount as per tables A and B mentioned in clause 5. As per clause 12 the OP shall deliver possession of apartment to the complainants purchasers only if they have paid all the amount paid by them as per the agreement to the OP the builder only if they have duly observed and performed all obligations and stipulations contained in the agreement.  In the event of any breach of any terms of the agreement it shall be deemed to have been breached and the agreement which stands automatically cancelled without any further notice to the complainant and in which event the OP shall refund the amount paid therein without any interest.
12. As per the agreement on 10.07.2020 the OPs have requested the complainants to pay a sum of Rs.16,00,000/- towards sale consideration and the complainant got SBI to pay the said amount on 30.07.2020. As on 09.12.2020 the OP had already completed the flooring of the apartment of the complainants and as per the agreement the complainants had to make the payment of 95% of the total sale consideration. The OP then requested the complainant to pay a sum of Rs.29,00,000/- through a letter and also an email on 10.12.2020.
13. The complainants failed to make the payment or reply to the same and thereafter belatedly they gave a reply on 11.01.2021 stating that there is a suit filed by some third party against the property in OS No.707/2020 and if the said case is settled they will pay the rest of the sale consideration amount which is as per contrary to the agreed terms under the agreement. As the complainants failed to make any payment as agreed under the agreement this OP sent a letter dated 16.02.2021 calling upon the complainants to make the payment of the said outstanding amount of Rs.29,00,000/- within eight days failing which as per the agreement for the default clause the sale agreement would be cancelled and terminated. As per the agreement even though no notice was required to be sent to the OP bonafidely sent notice requesting the complainants to pay the said amount, to which the complainants have replied vide their letter dated 18.02.2021 alleging that the project was suppose to be completed by December 2020 and the same has not been completing and since the suit filed by the third party is not settled. The complainants will not pay the amount as per the agreement.
14. When the complainants failed to pay the outstanding amount and they were in default of the agreement to sale this OP was constrained to terminate/cancel the agreement of sale vide their notice dated 23.02.2021 and called upon the complainants to receive the refund of the advance amount of Rs.28,00,000/- paid by them. The complainants accepted the termination of the agreement but demanded the refund to be made along with interest. The cancellation of the agreement of sale was made on account of default or breach of the agreement on account of nonpayment, therefore the claim for interest is per-se unjustifiable. Moreover the complainants have agreed under the agreement of sale at clause 12 but in the event of agreement is cancelled on account of default caused by the complainant, the OP shall refund the amounts paid without any interest. Therefore the complainants are estopped from contending that they are liable to pay any interest on such refund. The complainants in furtherance of the cancellation of agreement have also taken receipts dated 23.09.2021 from this OP for having handed over all the documents pertaining to the apartment received and the complainants have also made an endorsement for having received the said documents on account of cancellation of agreement of sale in full and final settlement.  
15. The complainants filed this false and vexatious complaint after receipt of the refund advance amount in full and final settlement without there being any cause of action alleging deficiency in service is not at all maintainable and liable to be dismissed. Hence OP prayed for dismissal of the complaint.
16. The complainant has filed his affidavit evidence and relies on 30 documents.  Affidavit evidence of official of OP has been filed and OP relies on 05 documents.
17. Heard the arguments of advocate for the both parties. Perused the written arguments and documents filed by both the parties.
18. 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?

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

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

20. 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 both the parties, written arguments and documents.
21. It is undisputed fact that OP have launched a residential apartment project Pariwar Pragathi on the property bearing Sy.No.90/1 and 91/2 measuring 4 acres 24 guntas at Kammanahalli Village, Bangalore South Taluk.  The complainants have approached the OP to purchase the apartment in the said project being constructed in the above land and booked the apartment by paying Rs.2,00,000/- as per Ex.P1 and P2 to the OP. The Sale Agreement was executed between the OP and the complainants as per Ex.P5.  The complainants agreed to purchase flat No.C310 at Block C third floor in the apartment complex for a total consideration of Rs.60,00,000/-.
22. It is further undisputed fact that the complainant has further paid an amount of Rs.10,00,000/- at the time of entering into agreement as per Ex.P3.  The complainants have further approached SBI for housing loan and the SBI sanctioned a loan amount of Rs.40,00,000/- a Tripartite Agreement was entered between the complainants, OP and the bank as per Ex.P8.  The complainant has again paid Rs.16,00,000/- through sanctioned loan amount as per Ex.P4.  The complainant has totally paid Rs.28,00,000/- to the OP.
23. It is also undisputed fact that a notice was issued to the complainants demanding them to pay the remaining amount of Rs.29,00,000/- as per the agreement Ex.P5.  The complainants refuse to pay the amount of Rs.29,00,000/- as per Ex.P10 by the letter issued to the OP.  After that the OP has got extended the time for completion of the project till December 2021 from the Hon’ble RERA Court.  After that the OP on 23.02.2021 issued the letter terminating the Agreement of Sale stating that they will refund the advance amount of Rs.28,00,000/- to the complainant as per Ex.P13.  The complainant has also accepted the termination of the agreement. The OP has refunded the total amount of Rs.28,00,000/- in favour of the complainant.
24. The only dispute arose between the complainant and OP is that the complainant is claiming an interest amount of 18% on the advance amount of Rs.28,00,000/- amounting to Rs.7,98,405/-.
25. The main grievance of the complainant is that there is a delay in completion of the project. As per the agreement Ex.P5 the builder has to deliver the possession of the apartment in the month December 2020 and with an extension period of six months time.  Under these circumstances, the OP is bound to complete the project in all respect including obtaining of Occupancy Certificate and execution of the sale deed during December 2020. But there was no progress in the construction and further the OP has obtained an extension of time to complete the project by another nine months from 01.01.2021 to 30.09.2021 from Hon’ble RERA court as per Ex.P27.
26. Thereafter, the complainants coming to know about the pendency of OS No.707/2020 which relates to the types of the properties involved in the project.  The complainants have also requested the OP to settle the dispute as early as possible and to complete the project. Instead of completing the project the OP has demanded the payment of balance amount of Rs.29,00,000/- with the complainants. When the OP has neither completed the project and there is a civil dispute pending and on these grounds the complainants have refused to pay the balance amount alleging that they will pay the amount only after disposal of OS No.707/2020.  The OP has also clearly admitted that there was an injunction order granted by the Civil court in the above suit as per Ex.R4 and R5 and he was not supposed to carry out any development work in the land due to the court order and the prevailing covid 19 situation at that point the OP could not construct the building during 2020.  The OPs refused to pay the amount for the aforesaid reasons as there was no progress in the project and the apartment was not ready.  Immediately the OP has terminated the agreement and agreed to return the advance amount of Rs.28,00,000/- without any interest.
27. On the other hand the main contention taken by the OP is that the complainants have refuse to pay the balance amount even though 95% of the work was completed in the apartment. As per clause 11 of the Ex.P5 the complainants have agreed to receive the advance amount without any interest when the agreement was terminated on the part of the failure to pay the entire amount to the OP. The OP has further denied that the apartment was not completed.  The complainants have made their false allegations only to avoid payments due as per the sale agreement Ex.P5 in clause 5 of the agreement.  This OP has also taken permission from the RERA authorities for completion of the work till 30.09.2021 as per Ex.P27.  
28. The OP has further denied that the complainants have no knowledge about the pendency of OS No.707/2020 and further the complainants never visited the project to see the stage of the construction.  The interim order granted by the Hon’ble Civil Court in OS No.707/2020 was vacated and the same was informed to all the purchasers as per the letter dated 10.10.2020 marked as Ex.R4.  The OP has taken the specific contention that there is breach of terms of the sale agreement by the complainants and hence this OP is not liable to pay any interest to the complainants as per clause 12 of the Ex.P5.  As per clause 4 of Ex.P8 the Tripartite Agreement, it is agreed that in the event the builder/OP cancels the booking for any default committed by the complainants or for another reason it is cancelled the OP shall pay the entire amount received from the complainant to the SBI.  When the OP cancels the booking or agreement due to the default or for any reason with the complainants the OP is obligated to pay the entire amount received from the complainants to the SBI and not to refund any amount to the complainants.  The SBI have a permanent lien over the money paid by the complainants to the OP. The OP cannot refund the advance amount to the complainants without NOC from the SBI and the original documents, such as Sale Agreement, Sale receipts etc., since the obligation was caste upon the OP to pay the advance amount paid by the complainants to SBI and as the complainants wanted to receive the refund of advance amount themselves they have to obtain the NOC and get the original documents released from the bank to enable the OP to refund the advance amount to the complainants. In view of these processes there is a delay on the part of this OP for refund of the advance amount in favour of the complainants. There is no delay on the part of this OP in refunding the amount. The OP further denied that there is a deficiency of service and unfair trade practice on their part in returning the advance amount without paying an interest @ 18% p.a., the complainants are also not entitle to any interest on the advance amount for the aforesaid reasons.
29. On these back ground both the counsel have relied on the decisions of the Hon’ble apex court and also NCDRC and also the decision of the Hon’ble High Court of Karnataka.
30. It is clear from the decisions referred by the complainants that the builder by not delivering legal physical possession of the apartment within the prescribed period are guilty of indulging into unfair trade practice. In such cases the builders should be dealt with heavy hands by imposing punitive damages.
31. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to deficiency.  The contractual terms of the agreement exfacie one sided unfair and unreasonable. The incorporation of such one sided clauses in an agreement constitutes an unfair trade practice. Since it adopts unfair methods or practices for the purpose of selling the flat by the builder.  The burden would lie on the developer to explain the steps taken to comply with the contractual obligation.  
32. If there has been delay in handing over of possession beyond contractually stipulated time period held jurisdiction of consumer forum to award just and reasonable compensation.
33. It is also clearly held by the Hon’ble Supreme Court that the interest shall be payable in case of delay in handing over possession of the apartments from the dates of such deposits.
34. The OP has taken the specific contention that the citations relied on the by the complainants is not applicable to the facts and circumstances in this case.
35. When the complainants have clearly established that there was a delay in the project and the project was not at all completed and the time was also further extended by the RERA. Admittedly the complainants have borrowed loan from the SBI and they have paid interest for the loan amount. The OP without completing the project has simply terminated the agreement and cancel the agreement by offering only the advance amount of Rs.28,00,000/- to the complainants.  The complainants have to be compensated for the delay and also the cancellation of the agreement unilaterally by the OP.  If the complainants have invested the amount in any other project they would have got the flats ready for their occupation and they would have occupied the flats and thereby they are benefited from not paying any rent to the rented houses occupied by them. Under all these circumstances, the relief claimed by the complainants are reasonable even though the rate of interest claimed by the complainants are very high they are entitled for the interest at the rate of 14% p.a., from the date of deposit of the amount till realization with compensation and litigation expenses. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
36. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to pay the interest at the rate of 14% p.a., on Rs.28,00,000/- from the date of respective deposit till realization.
3. OP is further directed to pay compensation of Rs.50,000/- with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 16% p.a. after expiry of 60 days on Rs.28,00,000/- till final payment.
5. 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 10^TH day of JANUARY 2024)

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

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