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 complete the project and hand over the flat no.301, 3^rd floor, Oak Block, in tower A, in Greens Phase-2 With all essential services and facilities, within 15 days along with the occupancy certificate, Fire Department clearance, E-Khata certificate along with formation of Association of Allottees and transfer and convey the Deed of Declaration of common assets etc.,
2. To pay compensation for delay on self contribution on Rs.19,86,541/- from date of payment or date of possession as agreement or from 26.05.2014.
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 costs of Rs.50,000/-.

OR ALTERNATEVELY: in case not completion of the project and handing over the possession, the complainant seeks to exit from the project and seeks to:-

5. To reimburse the principal amount of Rs.19,86,541/- along with interest at the rate of 18% p.a. from the respective date of payment till payment.
6. 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.
7. 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.301 with OPs entered into sale agreement and construction agreement dt.20.10.2014 for total consideration of Rs.34,08,912/- and the  complainant paid Rs.19,86,541/- in six installments.

The complainant had booked the apartment under Pre-EMI scheme. 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  and damages  by addressing by issuing legal notice dt.06.09.2021. 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 execution of  agreement  of sale and construction agreement dt.20.10.2014 and receipt of Rs.19,86,541/- from the complainant.

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 10 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 the 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 in part.

      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, as per exhibit P2. It is also admitted that the complainant and OPs have entered into an agreement  of sale on 20.10.2014 as per exhibit P3 and construction agreement as per exhibit P4. OPs  also issued receipts under exhibit P5. The total sale consideration  of the apartment bearing no.301 is  Rs.34,08,912/-  and payment of only Rs.19,84,541/- are not in dispute. In entire complaint and affidavit evidence the complainant has not pleaded that he is ready to pay balance sale consideration. There is no pleading and evidence about ready and willingness of the complainant for payment of balance amount. Therefore, the complainant is not entitled to relief of direction against OPs to complete the project and deliver the possession with all essential services and facilities with documents.

10. As per clause-VI of construction agreement Exhibit P4, OPs agreed to complete the construction  on or before September 2015 and buffer period of 06 months i.e. on or before March 2016, but OPs failed to do so.  Even though OPs have received major amount of Rs.19,86,541/-. 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.

11. Even though the OPs relay  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 absolve  from payment of claim amount. OPs failed to produce evidence about delay in completion of the project and OPs have not placed any evidence. The present stage of the project.  This act of the OPs amounts  deficiency of service. OPs are liable to refund Rs.19,86,541/-.  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.19,86,541/-   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.19,86,541/- 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.19,86,541/-.
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: