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

DATED 27TH DAY OF DECEMBER 2022

ORDER

SRI.M.SHOBHA, PRESIDENT

1. The  complainant  has filed this complaint against the Opposite parties  for reliefs

1. To direct the OP to refund the booking amount of Rs.5,55,050/-.
2. To direct the OP to pay 24% interest for the deposited amount of Rs.5,55,050/- from the date of deposit to till the date of realization
3. To direct the OP to pay an amount of Rs.1,00,000/- towards harassment and mental agony and hardship.
4. To direct the OP to reimburse costs of this proceedings and payment an amount of Rs.1,00,000/- and such other reliefs.

2.  The case of the complainant is that:

The OP is a well known builder/promoter and owner of converted property with upcoming project Sobha Arena Project. OP has published advertisement in news papers and various websites for sale of the flats. In view of this the complainant has approached the OP to buy a flat on 13^th floor, flat no.P-9131 block no.4, totally measuring 1601.76 sq.ft. After several discussions the OP agreed to sell the apartment for a total sale consideration of Rs.1,11,01,009/- excluding registration charges. The OP has also demanded the complainant to pay an advance of booking amount of 5% of sale amount i.e.Rs.5,55,050/- for the booking and he has also issued intimation letter dt.26.09.2020 confirming the receipt of application for booking.

The complainant has paid Rs.5,55,050/- vide online transfer on 23.09.2020 and 25.09.2020. Soon after the payment of the booking amount the complainant has requested the OP for the property documents to perform the due diligence, but OP fails to share the documents. Instead in order to formalize the contract the OP shared a format of agreement of sale for review and signature.

It is further grievance of the complainant that after verifying the agreement she was surprised that the OP has declared that there are pending litigation on the part of the A schedule property. The details of the litigations were not disclosed while sending the booking form and also at the time of receiving the advance amount and before sending of the agreement for signature. Hence, due to defective title and this unfair trade practice and lack of transparency she lost the faith in the OP and had cancelled the booking on 13.01.2021 and also requested the OP to pay back the deposited booking amount through email dt.13.01.2021. The complainant did not enter into sale agreement with the OP.

It is further grievance of the complainant that immediately she reached out the OP and requested to refund the booking amount, but OP failed to reply to her request. When she was unable to find a solution she wrote an email to chairman of Sobha Ltd., on  12.02.2021 seeking for his intervention for the refund of the booking amount paid by her, but OP failed reply to the said emails and failed to refund the amount. The OP has sent What’sApp SMS on 02.02.2021 stating that they can only refund the amount after selling the flat to new customer. Hence, the complainant has approached this commission for recovery of amount.

It is also the case of the complainant Mrs.Anuradha Roy is none other than her mother, she has obtained NOC from her mother for filing of this complaint. Hence, she prays for allow the complaint.

3. After service of notice, OP has appeared before this commission through their counsel and  filed their version.

The OP has admitted that the complainant with an intention to purchase the apartment has approached them and agreed to purchase 13^th floor in block no.4 of their project and she booked the flat and paid an amount of Rs.5,55,050/-.

It is the specific contention taken by the OP that the complainant agreed to purchase the flat by agreeing to the terms and conditions in the unit application form dt.23.09.2020. The said unit application form was circulated to the complainant on 23.09.2020 and after agreeing to the same she had made the payment on 27.09.2020. Hence, the terms and conditions in the unit application form formed a binding agreement between the parties. The complainant had scrutinized the documents and there after she executed the unit application form. After execution of the unit application form this OP has acted in furtherance of the same and issued allotment letter on 26.09.2020. When this OP has sent draft for agreement to sell for the purpose of execution he was shocked that the booking was unilaterally and without justifiable cause or reasons cancelled by the complainant on 13.01.2021 and it is complete violation of the agreement between the parties.

It is further case of the OP that he is bound to deposit 70% of all the income pertaining to a project in an individual account and the said amounts cannot be removed until the building reaches certain stage of completion. The removal of said amount needs to be certified by appropriate person like architect or chartered accountant. Even the said amount is removed the same has to be used only for construction agreement.

It is further contention taken by the OP that as per clause-8 of the online booking form OP is entitled to deduct 1% of the agreement value of the unit in the event the applicant cancels the unit.

It is further contention taken by the OP that as per clause-8 of the booking form this OP is entitled to deduct Rs.1,04,050/- out of Rs.5,55,050/- paid by the complainant being 1% of the agreement value.  This OP has requested the complaint to provide the required documents after initiating the process of refund and with regard to it he has sent a email dt.30.03.2021. As a special case this OP processed the refund cheque for full amount without any deductions and he has offered the complainant Rs.5,50,000/- through cheque dt.19.04.2021 drawn on Axis Bank. The complainant was not willing to accept the said offer of refund and this OP has also filed memo in this regard before this commission on 21.08.2021.

It is further case of the OP that the complaint is liable to be rejected as it is bad for non-joinder of parties. The intimation letter was sent to the complainant and also Mrs.Anuradha Roy and the complaint is filed by only the complainant even though Mrs. Anuradha Roy is a necessary party in this complaint. This OP is not liable to refund the entire amount and compensation as per section-18 of RERA Act.

It is further case of the OP that the complainant has failed to make out the case for deficiency of service or unfair trade practice and only reason that the complainant is seeking to withdraw from the project is because of the pending litigation which is deemed to be within the knowledge of the complainant before making payment of advance amount. The complainant has deliberately suppressed the execution of unit application form and she has not even referred the terms and conditions referred therein. The real estate project come under the domain of RERA and as per the RERA there can be no cancellation of booking except for the reasons cited in section-18. The complainant is a speculative buyer and not a genuine purchaser who deserves any reliefs. The interest claimed by the complainant is exorbitant. This OP is not liable to pay any compensation or interest as the booking is solely cancelled by the complainant. Hence, the OP has prayed to reject the complaint with exemplary costs. 

4. The complainant in order to prove her complaint filed her affidavit evidence and relied on Ex.A1 to A8. On the other hand  Authorized signatory of OP Sri Rajesh Marate  has filed his affidavit evidence and got marked Ex.R1 to R7.

5. We heard the arguments of the complainant.

6. The following points do arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

7. 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

8. Point Nos.1 and 2:. These two points are interrelated and hence they have  taken up for common discussion.

9. The complainant in order to prove her contention has filed her affidavit evidence and relied on 09 documents A1 to A9. 

10. The OP in order to prove their contention have got examined their authorized person and relied on Ex.R1 to R7.

11. It is undisputed fact the OP is a well known builder and they are the owner of the converted property with upcoming project known as Sobha Arena Project. They have given advertisement in the various news papers and also in various websites for sale of the flats and the complainant willing to purchase flat no.P-9131 in 13^th floor block no.4 totally measuring 1601.76sq.ft. for an amount of Rs.1,11,01,009/- excluding registration charges. As per demand made by the OP, she has paid an amount of Rs.5,55,050/- towards advance sale consideration amount.

12. The complainant in support of her contention has produced the intimation letter Ex.A1 and the Account Statement issued by Kotak Mahindra Bank for having paid Rs.5,55,050/- in favour of the OP on 23.09.2020 and 25.09.2020. The OP has issued confirmation of the payment vide receipts dt.27.09.2020 as Annexure A3 & A4.  The complainant has produced email dt.13.01.2021  stating that the property involved in litigation and she is not interested to buy the property and prays for cancellation of the booking and refund of booking amount Rs.5,55,050/-.  Ex.A6 is the copy of agreement to sell and it clearly discloses that it not yet signed by the complainant. Ex.A7 is the another email sent by the complainant to the chairman of OP on 12.02.2021 demanding refund of the amount. The Ex.A1 to A8 are not at all disputed by the OP.

13. On the other hand the OP has also filed the copy of the Board Resolution as per Ex.R2 and RERA registration  certificate as per Ex.R3 and copy of B-form as per Ex.R4. Unit application form as per Ex.R5 and intimation letter Ex.R6 and email dt.13.01.2021 as per Ex.R7.

14. It is clear from the above allegation made in the complaint and the objections raised by the OP and evidence of both the parties and documents placed on the records that the complainant has booked the flat with an intention to purchase flat offered by OP for Rs.1,11,01,009/- excluding registration charges and as per demand of the OP she has deposited 5% of the sale value i.e.Rs.5,55,050/-. The complainant has not entered into any sale agreement with the OP.

15. The complainant after coming to know that there are several litigations pending before various courts related to “A” schedule property, she lost interest and she has decided to cancel the booking and demanded the OP to refund the amount. She has made so many efforts by sending emails to the OP and their chairman for refund of the amount. When they failed to refund the amount she approached this commission by filing this complaint on 15.03.2021.

16. The main grievance of the OP is that the complainant after knowing about the fact about the litigation has agreed to purchase the flat and booked the flat and paid advance sale consideration amount. After that when the OP have sent the sale agreement for signature. The complainant has unilaterally cancelled the booking and demanded for booking amount.

17.  It is also grievance of the OP that the complainant along with her mother have executed Form-B as per Ex.R3 and Online unit application form as per Ex.R4 and they are bound by terms and conditions in form-B. As per RERA Act the complainant is not entitled for refund of the amount  and the complainant cannot cancel the booking unilaterally and she is not entitled for any refund of the amount. In spite of that this Op have considered the case of the complainant as a special case and they have offered refund of entire amount on 19.04.2021 by way of cheque drawn on the Axis bank, but the complainant refuse to receive the amount. The complainant has claimed a exorbitant interest of 24% p.a. on the advance amount and also compensation which she is not entitled to.

18. On this background both the OP and complainant have relied on decisions of Hon’ble Apex Court.  The complainant has relied on the decision of the Hon’ble NCDRC in Jaswinder Singh V/s Corporation Bank  in Revision petition no.4662/2021 and it is clearly held in this decision Defective Title-Amounts to unfair trade practice and deficiency of service.

19. It is also clear in Imperia Structure Ltd V/s Anil   Patni and another in Civil Appeal no.3581-3590/2020 it is clearly held that Remedies available under the provisions of the C.P.Act are additional remedies and over and above those under any special statutes. Availability of an alternate remedy is no bar to entertaining  complainants under the C.P.Act, RERA does not in any way bar consumer Forums from entertaining any complaint under the C.P.Act.

20. It is clear from the above decision that the defective title amounts to unfair trade practice and deficiency in service.

21. In this complaint the OP has not disclosed about the litigations pending in respect of “A” schedule property at the time of booking of the flat and at the time of payment of advance sale consideration amount by the complainant. Therefore, the conduct of the OP amounts to unfair trade practice.

22. If the complainant was aware of the pending litigation, she would not have booked the flat and she would not have paid the amount. The conduct of the OP in getting the certificate Form-B as Ex.R4 and Unit application as per Ex.R5 and receiving the advance amount amounts to deficiency of service. Hence, the complainant is entitled for the relief claimed in this complaint.

23. It is pertinent to note to here that the complaint is filed on 15.03.2021 and she paid advance amount to OP as per ex. A2 on 23.09.2020 and 25.09.2020. The complainant has requested the OP for refund of the amount by sending number of emails as per annexure A5, A7 and A8. In spite of her demand the OP have not paid the amount and they have offered the amount only after filing of the complaint on 19.04.2021. The OP have also deposited an amount of Rs.5,55,050/- before this commission on 07.12.2022. The complainant filed an application to release the amount without accepting the offer and without agreed to close the complaint. Hence, this commission has not released the amount in deposit in favour of the complainant. Under these circumstances the complainant is not entitled for the interest on the advance amount from 19.04.2021. The complainant is only entitled for interest from the date of filing of the complaint on 15.03.2021 till 19.04.2021.

24. If the OP have offered the amount to the complainant before filing of the complaint the complainant would have accepted the amount and close the matter. When the OP have failed to pay the amount, the complainant was forced to file the complaint before this commission by paying litigation expenses, advocate fee and other charges. Under these circumstances the complainant has suffered mental agony and financial loss for more than two years. Hence the complainant is entitled for compensation amount. Therefore, we answer point no.1 in the affirmative and Point No.2 affirmative in part.  

25. Point no.3:-.  In view of the above discussions, the complaint is liable to be allowed in part and complainant is entitled for Rs.5,55,050/- with interest at the rate of 10% p.a. from 15.03.2021 till 19.04.2021. The complainant is also entitled for compensation of Rs.50,000/- for the financial loss and also mental agony suffered by her. The complainant is also entitled for litigation expenses of Rs.10,000/-. Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund the amount of Rs.5,55,050/- with interest at 10% p.a. on Rs.5,55,050/- from the 15.03.2021 to 19.04.2021 with compensation of Rs.50,000/- along with Rs.10,000/- towards litigation expenses.
3. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 27^th  day of December, 2022)

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

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

*SKA