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

DATED 23^RD DAY 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.610, Oak Block, in Tower B, in Greens Phase II Phase 2A and Phase 2B 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.4,91,716/- as on June 2021 along with interest at the rate of 18% from the respective date of payment by complainants to State Bank of India;
3. To pay compensation on self contribution on Rs.8,85,618/- from date of payment or date of possession as agreement or from September 2015.
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

6. To refund a sum of Rs.19,41,659/- 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.4,91,716/- 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 17.01.2015 for total consideration of Rs.34,06,589/- complainants have paid Rs.8,85,610/- and got sanctioned loan of Rs.27,25,000/- from State Bank of India which disbursed Rs.10,56,041/- to the OPs.  The OP having received in all Rs.19,41,659/- against the consideration of Rs.34,06,589/- failed to execute the registered sale deed in respect of flat No.610.  The OPs have also failed to refund the paid amount with interest and PRE-EMI interest installment of Rs.4,91,716/- as on June 2021.  The OPs have reimbursed pre-EMI interest installment of Rs.10,232/- against Rs.5,01,948/- paid by the complainants 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 admit the execution of agreement of sale and construction of sale for valuable consideration of Rs.34,06,589/- in respect of flat bearing No.610 and receipt of Rs.8,85,610/- from the complainant and receipt of Rs.10,56,041/- by State Bank of India on behalf of the complainant under pre-EMI scheme. 

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.1 has filed affidavit evidence and relies on 12 documents.  The affidavit evidence of the authorized person of OP1 has been filed and 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 OPs?
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 complainant and submitted booking form for allotment of flat No.610 Execution of Ex.P3 sale agreement and Ex.P4 construction agreement between the OPs and complainants are not in dispute.

10.   The OPs admit receipt of in all Rs.19,41,659/- from the complainants and disbursed amount of Rs.10,56,041/- on behalf of the complainant by State Bank of India.    Whereas Ex.P4 construction agreement clearly indicates that the complainants paid in all Rs.6,81,318/- to the OPs.  The OPs do not dispute the contents of construction agreement.  This construction agreement itself indicates that the complainants have made payment of Rs.6,81,318/-.  Ex.P5 the bunch of payment receipts at page No.49 to 54 clearly indicate that on different dates, complainants made payment and OPs having received the amount mentioned in the complaint passed on these receipts.  Ex.P4 and receipts under Ex.P5 clearly demonstrate that the complainants made payment in all Rs.19,41,659/-.

11.   It is pertinent to note that State Bank of India sanctioned loan of Rs.27,25,000/-  under Ex.P6 to the complainants. Ex.P7 is the loan account. Ex.P8 is the bunch of emails by issuing Ex.P9 legal notice dated 06.09.2021 the complainants called upon OPs to complete the project, handover flat No.610 with all the required documents and pay pre-EMI interest installment and compensation. Ex.P10 is the postal receipt. Ex.P11 is the postal track consignment.  ExP12 is the complaint by Raghunathan Chakravarthy and 100 others against the OP1 and 2 before RERA authority.

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 on 02.08.2022 with letter of State Bank of India dated 24.02.2022 that complainants repaid entire loan amount on 24.02.2022.  The housing loan interest certificate indicate payment of payment of interest and principal amount.  

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.4,91,716/- and contributes amount of Rs.19,41,659/- and Rs.3,00,000/- towards mental agony and torture.  Alternatively complainants seek to direct the OPs to refund the sum of Rs.19,41,659/- with interest at 18% p.a., reimburse pre EMI interest of Rs.4,91,716/- 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.19,41,659/- are liable to refund the same, reimburse Rs.4,91,716/- 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.19,41,659/-, pay Rs.4,91,716/- 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.19,41,659/- and R.4,91,716/- 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.19,41,659/- and Rs.4,91,716/- 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*