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

DATED 02^ND DAY OF AUGUST 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1.           This complaint has been filed through Power of attorney holder of the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”)  against the OPs for the following reliefs.

1. Direct the OPs to develop and complete the project and register the sale deed pertaining 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 it brochure and the agreements, within a stipulated time period.

Or

Direct the OPs to refund the complete consideration amount of Rs.22,65,522/- received by the OP1 along with agreed penalty of Rs.53.82/- per sq. mtr. Per month together with interest there calculated from November 2014 till the date of actual payment.

2. Direct the OPs to pay a sum of Rs.4,84,352/- paid towards the interest on the loan amount availed by the complainant as on October 2021.
3. Direct the OPs to pay such amount being paid by the complainant to his banker towards the interest on the loan amount availed by the complainant from the date of filing this complaint 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
5. Direct the OPs to pay Rs.50,000/- towards cost of the complaint.
6. And any other reliefs as this Hon’ble commission deems fit in the interest of justice and equity.

2.The brief facts of the complaint is as follows:

The OP1 has been engaged in construction of multi storied buildings in the name of Sky View.  The complainant with an intention to purchase an apartment had approached the OP in June 2014.  The complainant has paid Rs.26,63,794/- against the sale consideration.  This amount has been paid in five installments.  The OPs have executed an agreement of sale and construction agreement.  But OPs neither completed the project nor ready to refund the amount.  Therefore complainant called upon the OP to develop the project, complete the project or otherwise refund the amount.  But OPs failed to comply the request.  Hence this complaint.

3.         In response to the notice, OPs appeared and filed version. They admitted that the complainant has shown interest to purchase the apartment.  The agreement sale and construction agreement dated 11.11.2014 have been executed for a valuable consideration of Rs.23,66,794/-.  They admitted the payment of amount mentioned in the complaint, but they contended that in view of the order of the Hon’ble High Court of Karnataka in writ petition No.1694/2019 and writ petition No.5937/2021 and delay on the part of the statutory authorities, the project was not completed.  The OPs are ready to complete the construction after securing approvals and deliver the possession.  There is no deficiency of service.  Therefore the OPs request to dismiss the complaint.

4.         The complainant files affidavit evidence and relies on 17 documents.  OPs have filed affidavit evidence of its authorized representative and relies on two documents. Heard the arguments and perused the records.

5.         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?

6. Our answer to the above points are as under:

       Point No.1:- Affirmative in part

      Point No.2:- Affirmative in part.

       Point No.3:- As per the final order.

                                      REASONS

7.  Point No.1 AND 2:    Even though both the parties have reiterated the facts pleaded in the complaint and version in their affidavit evidence and relied on documents.

8.  The payment of in all Rs.26,65,522/- by the complainant to the OPs is not in dispute.  The objection of the OP that even though OP was ready to complete the project but in view of the pendency of litigation in Hon’ble High Court of Karnataka, order of the Hon’ble High Court of Karnataka and for want of approval of statutory authorities, the project was not completed. The OPs also contended that they are ready to complete the project and deliver the possession of the apartment to the complainant immediately after receipt of approval from the statutory authority.  Ex.P1 is the certificate u/s 65B of the Indian Evidence Act.  Ex.P2 is the cost estimation of the apartment.  The total cost of the apartment is Rs.21,51,634/-.  Ex.P3 is the booking form dated 21.06.2014.  Ex.P4 to P6 are the payment receipts.  Ex.P6 is the undisputed sale agreement dated 11.11.2014 between the complainant and OPs showing cost of the land is Rs.7,7,24,591/-.  Whereas Ex.P7 is the construction agreement between the complainant and OPs dated 11.11.2014, wherein OPs agreed to complete the construction project on or before March 2016 and extendable for six months bumper period.  It means OPs agreed to complete the project and deliver the possession by September 2016.  As per clause 7a of this agreement, in case of default interest at the rate of 2% p.a. from the date of default to the date of payment was agreed to be paid.  As per clause 15 of the construction agreement the date stipulated for delivery of schedule B property is subject to variation of force measure of act of god or government order.  The Ops have not placed any evidence that project was not completed due to force measure, acts of god or government order.  

9.  Even though the OPs rely on Ex.R1 and R2, Ex.R1 is the Review petition filed by the government of Karnataka against the order passed in writ petition No.31197/2018 and 27467-27469/2018.  The OPs can’t aken shelter in R1.  Ex.R2 order on write petition No.5937/2021 indicates that the OP1 had filed writ petition challenging the order dated 15.02.2021 passed by the Real Estate Regulatory Authority of Karnataka.  The order of RERA dated 15.02.2021 goes against the OPs.  The OPs have not placed any evidence on what date they approached the Real Estate Regulatory Authority, Karnataka seeking permission.  It is not the case of the OPs that before expiry of September 2016 they had approached the RERA.  Therefore R1 and R2 did not help the OPs to delay in completion of project.

10.         Moreover, the OPs have not placed any evidence about viz., measures and act of god.  The OP have taken untenable contention.  Therefore, OPs contention requires to be rejected.  The complainant proves deficiency of service.

11.         Even though the cannot seeks relief to direct the OPs to develop, complete the project and register the sale deed pertaining to the apartment.  This Commission has no power to grant relief of execution of sale deed.  This reasoning of us, is supposed by the decision of Hon’ble Supreme Court of India, reported in 14(2014)SCC 773 in the matter of Ganeshlal –vs- Shyam.  Further the complainant seeks alternative relief of refund of Rs.22,65,552/-.  It is admitted by the OPs that the complainant has paid Rs.22,65,522/-.  In view of the proof of deficiency of service i.e., non completion of the project, the complainant is entitle to refund of this amount.  

12.         Ex.P8 is the sanction letter issued by ICICI Bank, sanctioning the loan of Rs.22,22,000/-.  Ex.P9 is the letter of OP to ICICI Bank limited.  Ex.P10 to P14 are the statement of accounts issued by OP1 and ICICI bank.  They clearly indicate that the complainant made payment of interest of Rs.4,84,352/- as on October 2021.  Due to delay on the part of the completion of project, the OP is liable to pay this interest portion.  The complainant had acknowledged a booking by sending email at Ex.P15 dated 08.02.2019 after expiry of stipulated time.  Subsequently the complainant issued a final notice of cancellation and another letter as per Ex.P16 and P17 calling OP for refund of earnest money.  Even after receipt of these letter of 2019 and 2021, the OPs failed to refund the amount.  Even though complainant is not entitled the relief of execution of sale deed, but complainant is entitled to refund of Rs.22,65,522/- and payment of Rs.4,84,352/-.  Even though complainant claims damages of Rs.5,00,000/-, but complainant is entitled to interest at 9% p.a., on Rs.22,65,522/- as per the decision of the Hon’ble Supreme Court of India, reported in 2022(2) CPR 1(SC) in Civil Appeal No.6044/2019 in the matter between Experion Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor  with Civil Appeal No.7149/2019 dated 07.04.2022, as possession.

13.         Under such circumstances, the complainant is not entitle to any separate amount under the head of compensation and more particularly of Rs.5,00,000/-.  The complainant claims Rs.50,000/- as litigation cost which is exorbitant.  It is proper to award Rs.15,000/- towards cost of litigation. Accordingly we answer point NO.1 and 2 partly in affirmative.

14.         POINT NO.3: In view of the discussion referred above, complainant is not entitle to relief of execution of registered sale deed.  OPs are liable to refund Rs.22,65,552/- with interest at 9% p.a., from the date of payment mentioned in the complaint till realization, OPs are also liable to pay Rs.4,84,352/- to the complainant towards interest paid by the complainant to her banker and litigation cost of Rs.15,000/-. In the result, we proceed to pass the following

O R D E R

1. The complaint is allowed in part.
2. Request for grant of execution of sale deed and completion of project is rejected.  OPs are directed to refund Rs.22,65,522/- with interest at 9% p.a., from the date of respective payment till realization, pay Rs.4,84,352/- towards interest paid by the complainant to her banker and Rs.15,000/- towards cost of litigation cost of Rs.10,000/- to the complainant.
3. The OP shall comply this order within 60 days from the date of this order failing which the OP shall pay interest at 11% p.a., after expiry of 60 days from this date 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 02^nd day of August, 2022)

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

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

HAV*