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.404,4^th floor, Amber Block, in the Tower D, in the Greens with all essential services and facilities, within15 days along with  Occupancy certificate, Fire Department clearance, E-Katha 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 from September 2015 at the rate of 18% per annum from the respective dates of payment of the sale consideration.
3. To pay the Pre-EMI pending amount of Rs.7,40,505/- as on August 2021 along with interest at the rate of 18% per annum under repayment;,
4. 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,
5. To order to pay costs of Rs.50,000/-.

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

6. To refund of sum of Rs.20,34,165/- along with interest at the rate of 18% p.a. from the respective date of payment till payment.
7. To reimburse the unpaid  Pre-EMI  amount of Rs.7,40,505/- as on august and interest along with all future interest  at the rate of 18% per annum until repayment.
8. To pay a sum 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.404 with OPs entered into sale agreement and construction agreement for total  sale consideration of Rs.21,18,069/- on 25.03.2013 and paid in all Rs.20,34,165/- in 14 installments.   

The complainant had booked the apartment under Pre-EMI scheme and he got loan sanctioned from ICICI bank to the tune of Rs.17,12,386/-. The complainant made of Rs.4,23,614/- by way of self contribution and Rs.16,10,551/- . loan proceeds was disbursed in favour of the complainant. The OPs paid only Rs.7,40,505/- and failed to pay Pre-EMI interest amount. The complainant has paid Rs.8,45,999/- as on August 2021 and OPs are liable to reimburse Rs.7,40,505/-.

The OPs neither completed the project on or before December 2014 with an extension of 06 months  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.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 agreement  of sale  and construction agreement dt.25.03.2013 and receipt of Rs.20,34,165/- from the complainant  and  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 12 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. Allotment letter Ex. P2 is  not in dispute. It is also admitted that the complainant and OPs have entered into sale agreement and construction agreement on 25.03.2013 as per Ex. P3 and P4. Ex.P5 bunch of receipts for having received Rs.20,34,165/-. The Total sale consideration  of the apartment bearing no.404 to the tune of Rs.21,18,069/- is not in dispute.

The complainant neither pleaded or proved his ready and willingness to pay balance consideration of Rs.86,000/-. Therefore, the complainant is not entitled to reliefs of possession with documents. The OPs have committed delay in completion of the project. Therefore, complainant is entitled to refund of Rs.20,34,165/- and Pre-EMI pending amount Rs.7,40,505/. Even though complainant claims interest 18% p.a., but the complainant is entitled to interest at 9% p.a. on these amount from the date of payment till realization in view of the decision The direct payment of Rs.4,23,614/-. In view  of 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. Hence, we answer point no.1 & 2 in affirmative in part.

10. 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.20,34,165/-, Rs.7,40,505/- 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.20,34,165/- and pre-EMI amount of Rs.7,40,505/- 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.20,34,165/- and Rs.7,40,505/-.
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: