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

DATED 6^TH DAY OF OCTOBER 2022

ORDER

SRI.H.JANARDHAN, MEMBER

1. This complaint has been filed under section 35 of C.P.Act, 2019 seeking relief against the OP for refund of Rs.18,21,532/- along with future interest, to pay compensation of Rs.50,000/-  for non-performance of the agreement and to pay the damages of Rs.50,000/- and such other reliefs. 

2.  The facts of the complaint in brief are as follows:-

The complainant being induced by the brochures, photographs and colorfulpictures of the apartment formed by the OP agreed to enter into sale agreement for project and the schedule property named as “Shriram Suvilas Garden of Joy”. The complainant booked by paying as advance sum of Rs.50,000/- on 29.01.2019 same was confirmed by the OP on 02.02.2019. The complainant also further paid booking amount of Rs.5,04,176/- and 15.02.2019 to the OP and same was acknowledged by letter dt.08.04.2019 of unit no.010201 at Shriram Suvilas Garden of Joy, Bengaluru. When the complainant has paidinitial amount for the unit no.010201, the complainant entered into registered sale agreement with OP dt.14.06.2019 for a purchase of a super build structure flat at unit no. 010201 on the 2^nd floor of the schedule property for a total consideration of Rs.49,44,000/- and also the OP assured the complainant that the project will be completedon or before 15.04.2021 as per clause-12 of the agreement of sale. Thereafter, OP further demanded amount from the complainant, the complainant being convinced by the OP for paying additional amount of Rs.4,15,000/- on 09.07.2019 and also complainant made last payment on 08.01.2020 for a sum of Rs.2,00,000/-.In all the complainant has made payment of Rs.12,04,176/- for the booking of the flat under the agreement. Though the complainant has paid Rs.12,04,176/- towards construction of the flat, but the OP has not completed the project nor finished the flat on or before 15.04.2021 as agreed in the agreement of sale. Though the complainant has made several correspondences with the OP and sought for the refund of the amount on the ground that apartment was unfinished and evidently structure and pillars have been constructed quite contrary to the clause-12 of the agreement. The complainant visited the spot on 11.03.2022 and on 25.04.2022 and the schedule propertyeven now is unfinished and not fit for occupation. The complainant submits the OP had no intentionto develop the apartment intime and being aggrieved by the said act of the OP, the complainant had issued legal notice on 25.03.2022 and Legal notice was served on 28.03.2022 and the complainant also issued legal notice dt.25.04.2019 to the changed address of the OP, which was served on OP on 06.04.2019. The notice at the address mentioned in agreement of sale at clause 34.3 was returned unserved due change of address of OP. Despite legal notice served, OP has not refunded the amount to the complainant and the complainant alleges deficiency of service on the part of OP and filed this complaint.

3. After service of the notice, OP failed appeared and hence OP is placed exparte.

4. The complainant filed affidavit evidence and got marked Ex.P1 to P13.

5. The complainant has filed written argument. Perused the records.

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

1. Whether there is deficiency in service on the part of the OPs?
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 in part.

      Point No.2:- Affirmative in part.

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

REASONS

8.  Point No.1 & 2: It is seen by the pleadings of the complainant  that the dream of having flat with OP has approached the OP towards purchase of the flat for unit bearing no.010201 and the complainant being convinced by the officers of the OP made payment of Rs.12,04,176/- as per Ex.P3 agreement of sale. The complainant has to make payment as per the schedule mentioned and the complainant has made payment of Rs.12,04,176/- to the OP on different dates, which has been admitted by the OP issuing receipts for the same. Thereafter, the complainant had entered into agreement of sale with the OP as per Ex.P3 and the complainant was assured that the project would be completed on or before 15.04.2021. Though the complainant has made payment to the OP, but till today OP has not made any progress to the satisfaction of the complainant. The complainant has also produced photographs as per  Ex.P12, which shows about unfinished flats and is not likely to be seen to be completed in the near future. The complainant has also produced statement of account i.e.Ex.P13 for having made payment to the OP. After making payment to the OP, the complainant followed up with the OP for seeking completion of the project, but OP did not show any intention to complete the project with one or the other pretext made the complainant to run from pillar to post. Though the complainant visited the spot on11.02.2022 and 24.02.2022 to the schedule property, but even then the project of the OP was unfinished  and the flat  was unfit for    occupation. By seeing said progress made by  the OP, the complainant finally decided that the OP has no intention to develop the apartment  nor had intention to complete the project intime as per clause of the agreement of sale and also came to know that he has violated the terms and conditions of the agreement of sale dt.14.06.2019. When the agreement is  between the parties, both the parties to the agreement bound by the terms and conditions of the agreement, but the OP has not acted  and  violated the terms of the agreement. Complainant finally decided to quit from the project and sought for refund of the amount from the OP. But the OP has not refunded the amount which is nothing but deficiency of service on the OP. Finally the complainant got issued legal notice to the OP, which was served on the OP, but not shown any interest to refund the amount nor made payment nor shows interest  to complete the said project, which is nothing but deficiency of service on the part of the OP. Further, OP is liable to pay interest at 9% p.a. which is held by the decision of Hon’ble Supreme Court of India in (II) 2007 CPJ 3 SC in the matter between Shankar Pande V/s Union of India & others.  The complainant had also availed service of an advocate to file the complaint. Hence, the complainant is entitled to an amount of Rs.5,000/- towards cost of litigation. It is proper to fix the time bound for the compliance of the said order. Hence, we grant 60 days time to OP to comply the said order, if OP fails to comply the above  said order within 60 days, then the OP shall have to pay interest at 12% p.a. on Rs.12,04,176/- after expiry of 60 days.  Hence,   we answer the point no.1 &2 accordingly.

9.  Point no.3:- For the for going reasons,  Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. OP is  directed to refund Rs.12,04,176/- with interest at 9% p.a. from the date of respective payments till realization, pay Rs.5,000/- towards the cost of litigation within 60 days from this date.
3. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at Rs.12,04,176/- at  12% p.a. after expiry of 60 days till realization.

4.  Furnish the copy of this order to both the parties and return extra pleadings with documents to the complainant.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 06^th  day of October, 2022)

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

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