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

DATED 22^ND DAY OF FEBRUARY 2023

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 OPs to refund the complete consideration amount of Rs.24,88,594/- received by the Op1 along with agreed penalty of Rs.53,82/- per sq. mtr., per month calculated from September 2015 till the date of actual payment.
2. Direct the OPs to pay a sum of Rs.5,00,000/- for mental agony and pain inflected upon him and due to the inconvenience caused.
3. Direct the OPs to pay Rs.50,000/- as cost of legal expenditure incurred in prosecuting this complaint and pass such other order.

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

The case of the complainant is that the OP is running the real estate business in the name and style M/s Sanchaya Land and Estate Pvt Ltd., and marketing the business.

3.       It is further case of the complainant OP is the absolute owner of all the piece and parcel of immoveable property bearing Sy.No.33, 35/3, 35/4, 36/2 and 174 of Karpur Village, Kasaba Hobli, and Sy.No.224, 184/5, 188/1, 188/2 and 189 of Bidaragere Village, Kasaba Hobli, together measuring 17 acres 29.08 guntas and both are situated at Anekal Taluk, Bangalore Rural District, Bangalore, whereby it propose to construct the residential apartment building under the name The Greens in the said project.

4.       The OP has formulated a scheme to construct residential apartment under the name The Greens consisting of several blocks with basements, ground and upper floors, common compound, entrances, lobbies, stair case, lifts and passages with rights in the common areas of the residential complex referred as apartment.

5.       The complainant contacted the OP for the purchase of the schedule apartment.  The OP introduced the new project which was yet to be constructed.  Believing the words of the OP the complainants agreed to purchase the schedule apartment and after scrutinization of the documents and after the OP parties representation the complainants were agreed to purchase flat bearing No.408, 4^th floor of Oak Block in C Tower, the Greens in Phase 2A & 2B, having super built up area of 88.25 sq. mtrs/950 sq. ft., and undivided right title and interest in land with open car parking area.  The complainant believing the OPs representations and assurances were agreed to purchase the apartment for a sale consideration of Rs.26,86,255/- and for all the terms and conditions and the OP has executed the sale agreement and construction agreement on 25.11.2014 and the complainants have paid advance sale consideration amount of Rs.5,37,251/- on various dates.  The OP had assured that he will hand over the possession of schedule apartment by September 2015 with six months grace period. But the OP has failed to keep up the promise.

6.       It is further grievance of the complainant that the OP has failed to complete the project and failed to hand over the schedule apartment even after completion of September 2015.  The complainant pursuant to the demand made by OP1 have paid substantial amount towards sale consideration to OP1 on various dates amounting to Rs.24,88,594/-

7.       It is further grievance of the complainant that even though they have paid the substantial sale consideration of Rs.24,88,594/- as demanded by the OP itself the OP has failed to perform their part of the contract even after lapse of two years.  After lapse of seven years the project is not completed and not ready for delivery. The OP had stopped construction activities after receipt of the last payment made by the complainant and hence the complainant has realized that the OPs are not willing to complete the project and he is carrying out a fraudulent act and they are enriching themselves at the cost of the complainant. There is a prolonged delay in construction with poor construction quality and even today the apartment does not have any basic service facilities.  There is lack of transparency and the OPs keep changing the contact persons.  Recently the complainant came to know that the OP parties are defaulters and does not honor the payment of any money inspite of order been passed against them in various cases as seen from public display records from the RERA website. Since the Ops are involved in large scale financial mismanagement and irregularities and does not show any interest to complete the project. Hence the complainant decided to cancel the agreement and to take the refund of the amount along with interest and compensation.

8.       The complainant has also sent several emails to the Ops. Inspite of the email correspondences the OP neither complied the demands nor refund the advance amount. Hence they filed this complaint. 

9.       In response to the notice, Ops have not appeared before this Commission.  Hence Ops placed exparte.

10.     The complainant has filed his affidavit evidence and relies on Ex.P1 to P20 documents. 

11.     Heard the arguments of the complainant and also perused the Written arguments filed by the complainant.

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

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

13.   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

14.    Point No.1 AND 2: Perused the complaint, documents, and evidence of the complainant and arguments and citation submitted by the complainant.

15.     The complainant has filed this complaint for the relief to direct the OP to refund the advance amount of Rs.24,88,598/- with agreed penalty of Rs.53.82/- and Rs.5,00,000/- for the inconvenience and mental agony caused to the complainant and litigation expenses of Rs.50,000/- and other expenses from the OP.

16.     It is undisputed fact that the OP is engaged in the real estate business and marketing the business. The OP is the absolute owner of the schedule property. The OP has formulated a scheme to construct a residential apartment under the name ‘The Greens’ apartment.

17.     The complainant has contacted the OP for purchase of the schedule apartment. The complainant has booked the apartment as per Ex.P1 on 08.11.2014.  The OP have issued allotment letter for allotment of apartment No.408, Block Oak C in the project The Greens, Phase II, Bidanagere Bangalore as per Ex.P2.  Ex.P3 is the estimation report issued by the OP. The complainant has entered into construction agreement and sale agreement with the OP on 25.11.2014 as per Ex.P5 and P4.  The complainant has paid totally a sum of Rs.24,88,594/- at the time of execution of Ex.P4 and 5 and subsequent to the agreement as and when demanded by the OP, believing that the OP will hand over possession of the schedule apartment atleast by the end of September 2015 but they have failed to hand over the schedule apartment even in 2021. 

18.     Inspite of service of the notice, the OP remained absent and placed exparte. The evidence of complainant and the documents remained unchallenged and there is no reason to disbelieve the same.

19.     The complainant have booked the apartment in 2014 which was way before the onset of pandemic covid 19 cannot be taken as excuse to delay in handing over possession of property which was supposed to be given in the year September 2015.  The OP has crossed the stipulated time and he has failed to prove that any of the reasons taken by them have occurred during the stipulated time.

20.     The complainant has also relied on the decisions of State Commission Disputes Redressal Commission, U.T., Chandigarh, Usha Yadav –vs- Manohar Infrastructures and others, it is clearly held in this decision a failure of the developer to comply with contractual obligations to provide the apartment to the purchaser within a contractually stipulated period amounts to be deficiency.  There is a fault, short coming or inadequacy in nature and manner of performance, which has been undertaken to be performed in pursuance of the contract in relation to the service. 

21.     The complainants have also relied on the case cited in Pioneer Urban Land –vs- Govindan Raghavan on 2^nd April 2019 in this case it is clearly held when the appellant builder failed to fulfill his contractual obligation of obtaining the occupancy certificate and offering possession of flat to the respondent/purchaser within the time stipulated in the agreement or within a reasonable time thereafter, the respondent flat purchaser could not be compelled to take possession of the flat even though it was offered almost two years after the grace period under the agreement expired.  During this period the respondent flat purchaser had to service a loan that he had obtained for purchase of the flat by paying interest at 10% to the bank.  Under these circumstances the flat purchasers is entitled to the relief for refund of the entire amount deposited by him with interest. 

22.     The complainant has also relied on the decision of National Consumer Disputes Redressal held in Mili Jain & two others –vs- Wave City Centre Pvt. Ltd., on 29^th October 2021

23.     It is also clearly held in the above decision that the complainant is entitled for the refund of the amount with interest and if he failed to pay the amount then the complainant is also entitled for additional interest. If the OP failed to deliver possession and pay the compensation the complainants shall be entitled to seek execution of the order under the C.P. Act.   

24.     The complainant has also relied on the decision of Hon’ble Supreme Court of India in Civil Appeal No.6044/2019.

25.     It is clearly held by the Hon’ble Supreme Court that the complainants are entitle for interest from the date of deposit of the amount.

26.     It is clear from the documents produced by the complainant that the complainants have entered into the sale agreement with the OP on 25.11.2014 and as per the agreement the OP has to complete the construction and hand over the possession of the apartment within September 2015. The OP has failed to complete the construction and deliver the possession of the apartment even after lapse of seven years at the time of filing of the complaint and even after filing of the complaint the OP is not ready to hand over the possession of the building. 

27.     The complainants who are the purchasers cannot wait for an indefinite period to take delivery of possession of the apartment after investing huge amount by raising loan from the banks.  When the OP has failed to deliver the possession of building even after lapse of seven years, the complainants are entitle for refund of the amount with interest and also the damages and litigation expenses.   Hence the complainants have clearly established the deficiency of service and negligence and unfair trade practice on the part of the OP. Therefore the complaint is liable to be allowed in part. Hence we answer point No.1 in the affirmative and Point No.2 partly in affirmative.

28.     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 refund the advance amount of Rs.24,88,594/- along with agreed penalty of Rs.53.82/- per sq. meter per annum from the date of deposit till actual payment.
3. The complainant is also entitled for the compensation of Rs.5,00,000/- and litigation expenses of Rs.10,000/-.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 10% p.a. after expiry of 60 days on Rs.24,88,594/- 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 22^nd day of February 2023)

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

Documents produced by the representative of opposite party;

NIL