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

DATED 17^TH 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. Declare that the OPs have indulged in unfair trade practices and provided deficient services to the complainant.
2. Direct the OPs to jointly and severally pay the complainant a sum of Rs.5,00,000/- as refund of the amounts paid by the complainant under the sale agreement dated 23.12.2018, along with interest at 18% p.a., from the date of receipt of the said amount till realization/full payment
3. Direct the OPs to jointly and severally pay the complainant a sum of Rs.4,50,000/- as compensation and damages
4. Direct the OPs to jointly and severally pay costs of the present complaint to the complainant.
5. 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 complainant having entered into an agreement of sale dated 23.12.2018 in respect of apartment bearing No.503, paid Rs.4,50,000/- and Rs.50,000/- as advance amount. But OPs informed the complainant on June 2019 the project was delayed indefinitely.  Therefore complainant called upon the OPs by issuing emails payment of Rs.9,50,000/- by terminating agreement of sale.

3.         In response to the notice initially OP failed to appear and both the OPs were placed exparte on 11.11.2020.  On 20.04.2021 OP1 appeared through its counsel and filed IA to set aside the order dated 11.11.2020 placing the OP1 exparte. IA1 came to be allowed along with this IA OP1 has not filed version, but OP2 has filed version 16.12.2020.

4.         OP2 contends that OP1 being the developer, entered into an agreement with OP1 under Joint development Agreement dated 31.12.2010.  It was the responsibility of OP1 to complete the project.  OP2 being the owner executed GPA in favour of OP2. The alleged los if any to the complainant is only due to the failure of OP1.  There is no deficiency of service on the part of OP2 and complaint against OP2 is not maintainable either in law or on facts.  Therefore OP2 requested to dismiss the complaint.

5.         The complainant files affidavit evidence and relies on 6 documents.  OP1 has filed affidavit evidence of its Joint Managing Director without version.  Special power of attorney holder of OP2 has filed affidavit evidence and relies on four documents. Heard the arguments of both sides including part heard arguments of OP1 and perused the records.

6.         The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OPs?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

7. 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

8.  Point No.1 AND 2:    The complainant has reiterated the facts stated in the complaint in her affidavit evidence.  Even though OPs appeared through their counsel but agreement of sale dated 25.12.2018 is not dispute.  According to agreement of sale OP1 as a developer and OP2 as a owner through her GPA holder and complainant have entered into agreement of sale in respect of apartment bearing No.503.  As per this document agreed sale consideration was Rs.32,06,190/- and cost of consideration was Rs.83,08,798/- i.e., total consideration payable was Rs.1,15,14,988/-.  It is admitted proved that complainant made only payment of Rs.5,00,000/- against the agreed consideration.  When the consideration paid is only Rs.5,00,000/-, this commission has pecuniary jurisdiction to entertain the complaint.

9.  The complainant had sent emails dated 11^th September 2019 to 28^th August 2020 requesting the OPs to refund her advance payment, but OPs remained silent even without refunding Rs.5,00,000/-.

10.         The non refund of amount of Rs.5,00,000/- amounts to deficiency of service on the part of the OPs.

11.         The OP2 relied on five documents.  Document No.1 is the registered Joint Development Agreement dated 31.12.2020 between the OP1 and OP2.  Document No.2 is the GPA executed by the complainant in favour of T.V.Balasubramanyam representative of OP1.  On the basis of this power of attorney OP1 as representative of OP2 and as a developer entered into agreement of sale with complainant on 26.12.2018.

12.         Document No.3 produced by the OP2 is an agreement between OP1 and 2 dated 11.08.2016.  Under which, OP1 agreed to pay an amount of Rs.3 crores to the owner/OP2 and paid Rs.1,94,00,000/-.  It means OP2 received major amount from OP1 under the agreement.  Document NO.4 is the legal notice got issued by OP2 on 09.03.2020 calling the OP2 to pay the amount to the prospective purchasers and otherwise OP2 would take appropriate legal action against OP1.  But OP2 being the owner of the property and having entered into agreement of sale with the complainant through her power of attorney OP1 also failed to refund the amount.  But OP2 conveniently claims that OP1 alone is liable for alleged loss is due to the failure of OP1.  It is not the case of the OP2 that she got cancelled the power of attorney executed in favour of OP1 and got cancelled Joint Development agreement with OP1.  Under such circumstances, both the OPs are liable to refund Rs.5,00,000/- to the complainant.

13.         The complainant not only claims refund of Rs.5,00,000/- from the OPs, she also claims interest at 18% p.a., and Rs.4,50,000/- as compensation.  There is no privity of contract between the complainant and OPs with regard to payment of interest at 18% p.a., on advance paid amount.  In view of 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, it is proper to award interest at 9% p.a., on advance paid amount from the date of payment till realization.  When we are awarding interest at 9% p.a., the complainant is not entitle to any amount of compensation more particularly Rs.4,50,000/.-Accordingly we answer point NO.1 and 2.

14.         POINT NO.3: Having regard to the discussion made in Point No.1 and 2, complaint requires to be allowed in part.  Both the OPs are liable to refund Rs.5,00,000/- with interest at 9% p.a., from the date of payment till realization and also liable to pay litigation cost of Rs.5,000/-. It is proper to impose time limit on OPs for payment of this amount. In case OPs failed to comply this order, it is proper to impose interest at 12% p.a., on Rs.5,00,000/- after expiry of 60 days from the date of payment till realization. In the result, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. Both the OPs shall refund Rs.5,00,000/- with interest at 9% p.a., from the date of respective payment till realization and Rs.5,000/- towards cost of the litigation.
3. The OPs shall comply this order within 60 days from the date of this order failing which the OP shall pay interest at 12% 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 17^TH 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*