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

Direct the OPs to refund the complete consideration amount of Rs.18,40,542/- received by the OP1 along with interest as per the agreement calculated from December 2018  till the date of actual payment.

2. Direct the OPs to pay a sum of Rs.3,28,012/- already paid towards the pre-EMI interest on the loan amount availed by the complainant.
3. Direct the OP to pay such amount being paid by the complainant to her banker towards the pre EMIs from the date of filing this complaint and the interest toward the EMI commencing after expiry of the pre-EMI period, till the date of realization of the entire amount due from the OPs.
4. Direct the OPs to pay damages of Rs.5,00,000/- due to the mental agony and pain inflicted upon her and due to the inconvenience caused;
5. Direct the OPs to pay Rs.50,000/- towards cost of the complaint.
6. And 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 25.10.2017 for total consideration of Rs.20,00,376/- with the OPs.  The complainant has paid Rs.3,00,000/- and Rs.15,40,542/- in five installments to the OPs.  Even though OPs complete the project by December 2018 but OPs neither completed the project nor refunded the amount.  The complainant has availed loan from ICICI Bank and remitted Rs.3,55,974/- towards EMI to ICICI Bank.  The OP1 has refunded Rs.27,00,962/- towards pre-EMIs to the complainants. The OPs are liable to refund Rs.3,28,012/- towards pre-EMI.  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 dated 25.10.2017 for valuable consideration of Rs.20,00,376/- in respect of flat bearing No.609 and payment of Rs.3,00,000/- as advance. But they deny that they agreed to refund received amount with compensation.

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 No.2 has filed affidavit evidence and relies on 13 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 Rs.5,000/- and Rs.2,95,000/- has passed the payment receipts.  Ex.P3 agreement of sale between complainant and OPs dated 25.10.2017 indicates that they have entered into an agreement for sale of flat bearing No.609 for consideration amount of Rs.20,00,376/- and OP1 has received Rs.3,00,000/- under this agreement. The clause No.7 speaks about possession of the apartment.  The OPs agreed to complete the project by December 2018 except happening of vis majeure, but OPs neither pleaded nor proved about such majeures.   Even though clause No.9 speaks about defaults and consequences but it is not the case of the OPs despite demands, the complainant failed to make payments for three consecutive demands. In fact the complainant proves the payment of further amount, availment of loan vide document Ex.P4 to P7.  The complainant not only availed loan from ICICI Bank but sum of Rs.14,40,542/- came to be disbursed to the complainant on different dates.  Despite email correspondence under Ex.P11 the OP failed to comply the request, in fact on 09.12.2019 the OPs issued a final notice for cancellation of booking and asked the complainant to contact CRM team to process the refund. Similarly on 24.12.2019 the OPs has issued a letter of cancellation of booking.  Ex.P11 indicates that on 29.04.2021 the complainant made a request to refund the amount with interest within 7 days but OP neither refunded the amount nor called upon the complainant to make the balance payment. 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.

10.   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.3,28,012/- and contributed amount of Rs.18,40,542/- and Rs.3,00,000/- towards mental agony and torture.  Alternatively complainants seek to direct the OPs to refund the sum of Rs.18,40,542/- with interest at 18% p.a., reimburse pre EMI interest of Rs.3,28,012/- with interest at 18%, compensation of Rs.3,00,000/- 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.18,40,542/- are liable to refund the same, reimburse Rs.3,28,012/- 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)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.

16.   POINT NO.3: In view of the discussion referred above, OPs are liable to refund Rs.18,40,542/-, pay Rs.3,28,012/- 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.18,40,542/- and pre-EMI amount of Rs.3,28,012/- with interest at 9% p.a., from the date of respective 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 day till realization on Rs.18,40,542/- and Rs.3,28,012/-.
5. 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*