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. Direct the OPs to develop and complete the project and register the sale deed pertaining to the apartment in the name of the complainant and to deliver the vacant physical possession of the apartment along with the agreed amenities/facilities as promised by the OP1 in its brochure and the agreement, within a stipulated time period.

or

2. Direct the OPs to refund the complete consideration amount of Rs.20,23,058/- received by the OP1 along with agreed penalty of Rs.53.82 per sq. mtr per month calculated from December, 2016 till the date of actual payment.
3. Direct the OPs to pay damages of R.5,00,000/- due to the mental agony and pain inflicted upon the complainant and due to the inconvenience caused.
4. Direct the OPs to pay Rs.50,000/- towards cost of the complaint.
5. Any other relief.

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

The complainants having entered into agreement of sale and construction agreement dated 19.12.2014 for total consideration of Rs.22,08,736/-.  But subsequently the OPs offered to sell flat No.708 for discounted price of Rs.20,23,058/-.  The OP1 agreed to complete the project on or before December 2016 with grace period of six months and in case of failure to complete the project agreed to pay Rs.53.82 per sq. meter per month as penalty. Rs.2,00,000/- paid by means of a cheque on 28.06.2014 and complainant has paid further payment of Rs.2,41,747/-.  The complainants paid in all Rs.20,23,058/-.  The OPs neither completed the project nor came forward to execute the registered sale deed with possession. 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.22,08,736/- on 19.12.2014 in respect of flat bearing No.708 and receipt of Rs.4,41,747/-.  The OPs also admit receipt of consideration amount of Rs.20,23,058/-.

5.     These OPs have already made efforts to complete the project but 780-800 intending purchasers failed to make payment.  In view of pendency of writ petition No.16497/2019 and Review petition No.01/2021 the project was not completed.  The OPs have also filed writ petition at No.5937/2021. The failure on the part of the OPs is for the bonafide reasons. Therefore, they request to dismiss the complaint.

6.     The complainant has filed affidavit evidence and relies on 12 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 ExP1 and P2 indicate that OP1 having received in all Rs.2,00,000/- and Rs.2,41,747/- has passed the payment receipts.  Ex.P3 agreement of sale between complainant and OPs dated 19.12.2014 indicates that they have entered into an agreement for sale and Ex.P4 is the construction agreement dated 19.12.2014 for flat bearing No.708 for consideration amount of Rs.22,08,736/-.  Even though complainants state that subsequently the sale consideration was reduced to Rs.20,23,058/- and OPs admit receipt of this amount, but there is no endorsement either in agreement to sell or construction agreement that price was reduced to Rs.20,23,058/-.  This say is proved from Ex.P7 letter of OPs that OP1 agreed to sell the flat No.708 having accepted Rs.20,23,058/- towards full and final payment.  The payment of further consideration under Ex.P5 bunch of receipts is also proved.  The OP had issued a demand notes at different dates as per Ex.P6.  Ex.P7 is the letter of OP No.1 to the husband of complainant admitting receipt of Rs.20,23,058/- is full and final payment.  This letter is suffice to say that the OPs agreed to sell flat No.708 for reduced consideration amount of Rs.20,23,058/-.  Ex.P8 is the death certificate of husband of complainant.  Ex.P9 is the bunch of emails addressed to the complainant from Indya Estates.  Ex.P10 is the reply of complainant. Ex.P11 is the letter of complainant stating that full amount was paid about five years back.  
10. The first prayer is for execution of registered sale deed with delivery of possession and documents. But this commission has no jurisdiction to grant such relief i.e., Execution of registered sale deed.  Under such circumstances, we have to consider alternative claim of the complainant.
11. Mere pendency of Review Petition and order on writ petition vide Ex.R1 and R2 do not help the OPs to avoid repayment with interest.
12. The complainants seek a direction against the OPs to hand over the apartment with occupancy certificate and other documents.  Rs.5,00,000/- towards mental agony and torture.  Alternatively complainant seeks to direct the OPs to refund the sum of Rs.20,23,058/- with interest at 18% p.a., compensation of Rs.5,00,000/- and cost of this litigation of Rs.50,000/-.  The complainant has not paid the agreed entire consideration and he has not shown any inclination about ready and willingness to pay the balance amount.  Therefore, complainant is not entitled to relief of completion of project and execution of registered sale deed with possession and documents. 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.20,23,058/- are liable to refund the same.  Complainants claim interest at 18% on this amount with compensation of Rs.5,00,000/-.  The complainant is 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)CPR(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.
13. POINT NO.3: In view of the discussion referred above, OPs are liable to refund Rs.20,23,058/-, 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.20,23,058/- 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.20,23,058/- after expiry of 60 days till realization on Rs.20,23,058/-.
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*