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

DATED 23^rd DAY OF SEPTEMBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  complaint has been  filed  under section 35 of C.P.Act, 2019 (herein after referred as “ACT”)  for the following reliefs.

1. To reimburse the principal amount of Rs15,45,776/- along with interest at the rate of 18% p.a. from the respective date of payment till payment.
2. To reimburse the unpaid  Pre-EMI amount and interest amounting to Rs.6,24,128/- along with interest at the rate of 18% from the respective date of payment.
3. To pay a sum of Rs.3,00,000/-  for mental agony and torture and harassment for deficiency of service within 15 days from the date of notice.
4. To order to pay cost of Rs.50,000/-  and such other reliefs.

2.The case of the complainant in brief is as under:

The complainant having booked a apartment bearing no.205 with OPs entered into sale agreement and construction agreement for total consideration of Rs.19,08,363/-. The OPs have issued allotment letter  dt.11.04.2013. The complainant paid Rs.3,00,000/- to the OPs i.e. Rs.50,000/- by means of cheque dt.31.03.2013 and Rs.2,50,000/- through cheque dt.15.04.2013.

The complainant had booked the apartment under Pre-EMI scheme and he got loan sanctioned for Rs.17,00,000/- from ICICI Bank and ICICI Bank disbursed loan  amount Rs.12,45,776/-  in favour OPs. The complainant paid in all Rs.15,45,776/- and also paid Rs.7,01,430/- towards Pre-EMI installment, but the complainant also paid further  EMI of Rs.1,47,828/- and Rs.1,14,537/- in all Rs.8,15,967/-. The OPs have reimbursed sum of Rs.1,91,839/- towards Pre-EMI interest and OP files to reimburse pre-EMI interest  to the tune of Rs.6,24,128/-.

The OPs neither completed the project nor delivered possession of the apartment  as agreed under construction agreement. Therefore, the complainant called upon the OPs either to complete the project or refund an amount  including Pre-EMI and damages  by addressing by issuing legal notice dt.08.09.2021. The OPs failed to pay the said amount. Hence, this complaint.

3. In response to the  notice, OP-2 failed to  appear   before this commission  and OP-2 is placed exparte. OP-1,3 & 4 only appeared though their counsel and filed version. OP-1, 3 & 4 admitted the agreement  of sale  and construction agreement dt.20.04.2013 and receipt of Rs.3,00,000/- from the complainant  and Rs.12,45,776/- disbursed by ICICI Bank.

4.  It is further case of the OPs that in all 780-800  interested purchasers  failed to make payment. The completion of project is delayed for non payment of these purchasers and shortage of materials. There is no deficiency of service and negligence on the part of OPs. They request to dismiss the complaint.

5. The complainant  has filed his affidavit evidence and relies  on 17 documents. Affidavit evidence of the authorized signatory of OP-1,3,4 has been filed  and these OPs have relied on Exhibits R1 to R3.

6.          Heard the arguments. We  perused records.

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

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

8. Our answer to the above points are as under:

       Point No.1 :-Affirmative.

      Point No.2 :-Affirmative in part

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

REASONS

9. Point No.1&2:. Even though  parties are reiterated their respective contentions in their affidavit  evidence. But documentary evidence produced by the both parties is not in dispute. The submission of the booking form, allotment letter as per exhibit P2 & P3 are not in dispute. It is also admitted that the complainant and OPs have entered into an agreement  of sale on 20.04.2013 as per exhibit P4 and construction agreement as per exhibit P5. OP1 has issued intimation letter as per exhibit P6 and also issued receipts under exhibit P7. The Total sale consideration  of the apartment bearing no.205 to the tune of Rs.19,08,363/- is not in dispute. The direct payment of Rs.3,00,000/- by the complainant and disbursement of Rs.12,45,776/- by ICICI Bank in favour of the OPs  is also not in dispute.  

10. As per clause-5 of construction agreement Exhibit P5, OPs agreed to complete the construction  on or before December 2014 and buffer period of 06 months i.e. on or before 30.06.2015, but OPs failed to do so.  Even though OPs have received major amount of Rs.15,45,776/-. Neither they made necessary efforts to complete the project  nor called upon the complainant to pay the balance amount for execution of the sale deed and  failed to deliver the possession. This act of the OPs amounts to deficiency of service. It is admitted  fact as per exhibit P8 & P9, the complainant got sanctioned loan amount of Rs.12,75,807/-. It is also admitted that ICICI Bank disbursed amount of Rs.12,45,776/- to the OPs. It is also relevant to note that ICICI Bank had charged interest on the loan amount. The agreement with regard to Pre-EMI interest is also not in dispute. The case set up by the  complainant about payment and OPs reimbursed Rs.1,91,839/- against Pre-EMI  paid amount of Rs.8,57,967/-. According to the complainant, the  OPs failed to reimbursement of Pre-EMI interest to the tune of Rs.6,24,128/-.  This contention of the complainant  has not been denied by the OPs.

11. Even though the OPs relies on exhibit R1 to R3 more ever pending of Review  Petition of Government of Karnataka,   when the stay was granted by the Hon’ble High Court of Karnataka with regard to  order passed by RERA authorities do not help to OPs to obsolve in payment of claim amount. OPs failed to produce evidence about delay in completion of the project. This act of the OPs is deficiency of service. OPs are liable to refund Rs.15,45,776/-  and reimburse Pre-EMI installment of Rs.6,24,128/-. The complainant claims interest at 18% P.A. on this amount and compensation of Rs.3,00,000/-. The complainant is not entitled to interest as well as compensation. Even though the complainant claims interest at 18% p.a., but as per decision of Hon’ble Supreme court of India reported in (II)(2022)CPR(1) in the matter between Experian Developers Pvt.Ltd., V/s Sushma Ashok Shiroor, the complainant is entitled to interest at the rate of 9% P.A. from the date of payment till realization.  Hence, we answer point no.1 & 2 in affirmative in part.

12. Point no.3: In view of the discussions referred above, the complaint requires to be allowed in part. The OPs are liable to refund Rs.15,45,776/-, Rs.6,24,128/- Pre-EMI  installment  with interest at 9% P.A. from the date of respective payments till realization and payment of Rs.25,000/- towards  cost of litigation. Interest is awarded in the form of compensation. Therefore, the complainant is not entitled to compensation under separate head. Accordingly, we proceed to pass the following

O R D E R

1. The complaint is allowed in part.
2. The OPs shall refund Rs.15,45,776/- and pre-EMI amount of Rs.6,24,128/- with interest at 9% p.a.  from the date of  payment  till realization.
3. The OPs shall pay Rs.25,000/- towards cost of litigation.
4. The OPs shall comply this order within 60 days from this date, failing which OPs shall pay interest at 12% p.a. after expiry of 60 days till realization on Rs.15,45,776/- and Rs.6,24,128/-.
5. Furnish the copy of this order to both the parties and return extra pleadings with documents to the parties.  

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 23rd  day of July, 2022)

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

Documents produced by the representative of opposite parties-1,3,4: