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

DATED 23^RDDAY OF SEPTEMBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

        The complainant has filed this complaint under Section 35 of C.P. Act, 2019 seeking for a direction to the OP for the following reliefs;

1. To complete the project and hand over the flat No.603, Pine Block, in Tower B, in Greens Phase I with all essential services and facilities, within 15 days along with the 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 reimburse all the pending PRE_EMI interest installment of Rs.2,32,066/- along with interest at the rate of 18% from the respective date of payment;
3. To pay compensation for delay on self contribution on Rs.19,09,630/- from date of payment or date of possession as agreement or from 26.05.2014.
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 complainants seeks to exit from the project and seeks to:-
6. To refund a sum of Rs.19,09,630/- along with interest at the rate of 18% per annum from the respective date of payment until payment
7. To reimburse all the pending PE-EMI interest installment amount to Rs.7,17,452/- and interest thereon at the rate of 18% amounting from the respective date of payment
8. To pay a sum of Rs.3,00,000/- for mental agony and torture and harassment for deficiency of service.
9. To order to pay costs of Rs.50,000/- and pass such other order.

2.     The case of the complainants in brief is as under;

The complainants having entered into agreement of sale and construction agreement dated 11.06.2013 for total consideration of Rs.19,09,630/- with the OPs on the basis of allotment letter dated 05.06.2013, complainants have paid Rs.3,81,926/- and got sanctioned loan from LIC housing finance limited which disbursed Rs.15,57,436/- to the OP.  The OP having received in all Rs.19,39,354/- against the sale consideration of Rs.19,09,630/- failed to execute the registered sale deed in respect of flat No.603.  The OPs have also failed to refund the paid amount with interest and PRE-EMI interest despite legal notice dated 06.09.2021.  Hence this complaint.

3.     In response to the notice, OP1, 3 and 4 only appeared and filed version.  OP2 failed to appear before this Commission despite receipt of notice and OP2 has been placed exparte.

4.     OP1, 3 and 4 admits the execution of agreement of sale and construction of sale for valuable consideration of Rs.19,09,630/- in respect of flat bearing No.603 and receipt of Rs.1,00,000/-.  They also admit disbursement of Rs.15,57,426/- by LICHFL to the OP. but denies payment of Rs.3,81,926/-.

5.     These OPs have already made an efforts to complete the project, but 780-800 intending purchasers failed to make payment.  Hence there is delay in completion of project.  They request to dismiss the complaint.

6.     The complainant No.2 has filed affidavit evidence and relies on 14 documents.  The affidavit evidence of the authorized person of OP1 has been filed and relied on 3 documents are marked. Heard the arguments and perused the records.

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

1. Whether the complainant proves deficiency of service on the part of the OP?
2. Whether the complainant is entitled to reliefs 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 AND 2:  At the first instance we would like to refer the admitted facts.  It is admitted and proved from Ex.P2 that OP issued allotment letter dated 05.06.2013 in respect of apartment bearing No.603, Pine Block, in Tower B,  Execution of Ex.P3 sale agreement and Ex.P4 construction agreement between the OPs and complainants is not in dispute.

10.   The OPs admit receipt of Rs.1,00,000/- from the complainants and disbursement of Rs.15,57,426/- on behalf of the complainant by LICHFL.  But OPs disputes the payment of Rs.3,81,926/-.  Whereas Ex.P4 construction agreement clearly indicates that the complainant paid Rs.1,00,000/- to the OPs through cheque dated 11.05.2013, Rs.1,14,558/- through cheque and Rs.1,00,000/- through cheque on 19.09.2013.  The OPs did not dispute the contents of construction agreement.  This construction agreement itself indicates that the complainants have made payment of Rs.3,14,558/-.  Ex.P5 the bunch of payment receipts at page No.47 to 55 clearly indicate that on different dates, complainants made payment and OP having received the amount mentioned in the complaint passed on these receipts.  Ex.P4 and receipts under Ex.P6 clearly demonstrate that the complainants paid in all Rs.19,39,354/-.

11.   It is pertinent to note that LIC HFL sanctioned loan of Rs.16,80,000/-  under Ex.P7 to the complainants. Ex.P8 indicates that there was a tripartite agreement between the complainants, OP1 and LIFHFL.  Ex.P9 contends six receipts which clearly indicates that the complainants paid amount towards the principal and interest between 01.02.2016 to 11.07.2018.  It clearly indicates that the complainant has paid interest on principal amount to the LICHFL.  Ex.P10 is the bunch of email correspondence between the complainants and OPs.  Despite receipt of Ex.P11 legal notice, the OPs neither executed the sale deed in respect of apartment bearing No.603 nor refunded the amount.  Ex.P12 is the postal receipt and ex.P13 postal track consignment indicate service of notice on the OPs.  Ex.P14 is the report of RERA.

12.   There is no material to disbelieve the evidence of complainants and documents of the complainants.

13.   The authorized person of OP1 contends that the delay was caused due to non payment of amount by the intending purchasers labour problem and effect of covid 19.  But these are not acceptable defences of developers like OPs.  Ex.R2 and R3 indicate that review petition o the state of Karnataka is pending before the High Court of Karnataka and Ex.R3 indicates that the OP1 has obtained stay order against the order of RERA.  But these two documents do not help the OPs to dismiss the complaint.

14.   The complainants have filed a memo with letter of LICHFL dated 27.07.2018 showing that the complainants have paid principal amount with interest.  Certificate dated 22.03.2021 indicates the payment of principal amount of Rs.39,102 and interest of Rs.1,60,327, but vouchers produced under Ex.P9 clearly demonstrate the say of complainants is correct.

15.   The complainants seek a direction against the OPs to hand over the apartment with occupancy certificate and other documents, reimburse pre EMI installments of Rs.2,32,000/- and contributes amount of Rs.19,09,630/- and damages of Rs.3,00,000/-.  Alternatively complainants seek to direct the OPs to refund the sum of Rs.19,09,630/- with interest at 18% p.a., reimburse pre EMI interest of Rs.7,17,452/- with interest at 18%, compensation of Rs.3,00,000/- and cost of this litigation of Rs.50,000/-.  The complainant is not right seeking relief of compensation.  This commission has no power to direct the OP to deliver the possession of the flat, but complainants are entitled to alternative relief to the extent indicated below.  The OPs having received Rs.19,09,630/- is liable to refund the same, reimburse Rs.7,17,452/- pre EMI interest.  Complainants claim interest at 18% on this amount with compensation of Rs.3,00,000/-.  The complainants are entitled to only 9% interest on the date of payment till realization.  In view of decision of Hon’ble Supreme Court of India, in 2022(2)CPC(1) in the matter between Experian Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor the complainant is entitled to interest at 9% p.a. from the date of respective payments till realization.  We can award at interest as compensation.  The complainants are not entitled to compensation under separate head.  The complainants have availed services of advocate.  Therefore cost of litigation is quantified at Rs.25,000/-. Accordingly we answer point NO.1 and 2.

16.   POINT NO.3: In view of the discussion referred above, OPs are liable to refund Rs.19,39,354/-, pay Rs.7,17,452/- towards PRE-EMI interest with interest at 9% p.a., from the date of respective payments till realization. OPs are also liable to pay Rs.25,000/- as cost of litigation.  The complainants are not entitled to any compensation in addition to the interest. In the result, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OPs shall refund Rs.19,09,630/- and R.7,17,452/- with interest at 9% p.a., from the date of respective payment till realization and to pay Rs.25,000/- towards cost of litigation.
3. The OPs shall comply this order within 60 days from this date, failing which the Ops shall pay interest at 12% p.a., on Rs.19,09,630/- and Rs.7,17,452/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties.

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

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

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

HAV*