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.602, 6^th floor, Maple Block, in Tower E, in the Greens Phase No.1 with all essential service 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 installments of Rs.7,37,914 along with all future interest, charge, penalties until possession;
3. To pay compensation for delay from at the rate of 18% per  annum from the respective dates of payment of the sale consideration;
4. To pay a sum of Rs.3,00,000/- for mental agony and torture and harassment for deficiency of service within15 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 reimburse the principal amount of Rs.17,45,845/- 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 and interest amounting to Rs.7,37,914/- along with interest at the rate of 18% 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 within 15 days from the date of notice.
9. 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.602 with OPs entered into sale agreement and construction agreement dt.30.08.2013 for total consideration of Rs.21,53,201/- and paid Rs.3,00,000/- by means of cheque dt.25.08.2013.

The complainant got sanctioned loan amount of Rs.17,21,250/- from ICICI Bank which disbursed Rs.14,45,845/- to the OPs. The OPs have received in all Rs.17,21,250/-. The apartment was booked under Pre-EMI scheme. The OPs have paid sum of Rs,1,91,662/- towards Pre-EMI interest installment for  the period January-2015 to  September 2015. There after OPs fails to pay Pre-EMI interest and complainant has paid Rs.9,25,576/- towards Pre-EMI installments upto August 2021. There by OPs are liable to repay Rs.7,37,914/- toward Pre-EMI interest installment. 

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  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.30.08.2013 and receipt of Rs.3,00,000/- from the complainant  and Rs.14,45,845/- disbursed by 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 11 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 have 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-Ex.P2 is not in dispute. It is also admitted that the complainant and OPs have entered into an agreement  of sale on 30.08.2013 as per Ex.P3 and construction agreement as per Ex.P4. Ex.P5 bunch of receipts proves payment of the amount to the OPs. Ex.P6 is the loan statement account maintained by ICICI Bank indicates the schedule of repayment of loan. Ex.P7 is the bunch of email correspondences between the complainant and OPs. By issuing Ex.P8 legal notice dt.06.09.2021, the complainant called upon the OPs either to complete the project, deliver the same with documents and refund the amount including Pre-EMI installments. Ex.P9 is the postal receipts. Ex.P10 is the postal track consignment about service of notice on OP-1. Ex.P11 is the report of RERA.

10. The complainant has paid only Rs.17,45,845/- against the agreed sale consideration of Rs.21,53,029/-. The complainant neither pleaded or proved his ready and willingness to pay the balance amount of Rs.4,00,000/-. Ex.P8 legal notice dt.06.09.2021 is also silent with regard to  ready and willingness of the complainant to pay balance amount of Rs.4,00,000/-. Under such circumstances, the complainant is not entitled to the relief of directions against the OPs to complete the project, deliver the possession with all required documents. 

11. Even though the OPs relies 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 obsolve in payment of claim amount. OPs failed to produce evidence about delay in completion of the project. This act of the OPs is deficiency of service. OPs are liable to refund Rs.17,45,845/-  and reimburse Pre-EMI installment of Rs.7,37,914/-. 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 as compensation.  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. 17,45,845/-, Rs.7,37,914/-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. 17,45,845/-  and pre-EMI amount of Rs.7,37,914/- 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. 17,45,845/-   and Rs.7,37,914/-.
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: