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

DATED 31^ST DAY OF JULY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to repay a sum of Rs.27,50,000/- along with interest at 24% per annum to the complainant.
2. Direct the OP to pay a sum of Rs.10,00,000/- to the complainant as compensation towards mental agony and harassment caused due to deficiency of service by the OP.
3. Pass such other orders as this Hon’ble Forum may deem fit.

2. The case set up by the complainant in brief is as under:-

OP1 is a registered partnership firm and the OP2 is the Managing partner of the firm. The Ops claiming to be the owners of certain immoveable properties bearing No.27/6, 27/7, 7/8, 27/9, 27/10, 27/11 27/12 and 27/13 situated at Billakempanahalli Village, Bidadi Hobli, Ramanagar Taluk and district.  The Ops have offered the complainant to sell the residential flats which they will be building over the aforesaid lands by getting the sanction plan from BMICAPA.  The Ops have also offered the complainant that they have formulated a scheme for putting of residential apartments complex consisting of residential flats known as Bhoomika Sampurna.

3. The complainant attracted by the offer and scheme of the Ops had entered into an agreement of sale on 28.03.2013 wherein the Ops have agreed to sell the apartments four number of 2 BHK and two numbers of 3BHK flats with apartments bearing No.701, 702, 703 and 704 situated in the 7^th floor and 601 and 602 on the 6^th floor in the B Block of the residential complex known as Bhoomika Sampurna, to be constructed over the aforesaid lands and they are the schedule properties.
4. The Ops have agreed to sell the schedule property for a total consideration of Rs.20,08,650/- and received the entire amount from the complainant under the sale agreement dated 28.03.2013.  The complainant has paid the amount by way of RTGS on 28.03.2013 and the receipt of the amount was duly acknowledged by the OP in the sale agreement.
5. After execution of the sale agreement on 28.03.2013 the OP have also entered into construction agreement, agreeing to put up the construction of the residential apartment as shown in the schedule property on or before 31.07.2015 with grace period of six months and cost of the construction was agreed to be Rs.1,40,54,811/-. Out of which the complainant has paid a sum of Rs.7,41,350/- by way of RTGS on 28.03.2013.  The complainant has totally paid a sum of Rs.27,50,000/- under the aforesaid agreement of sale and construction agreement dated 28.03,2013.
6. As per the agreement the Ops were bound and obligated to deliver the flats to the complainant on or before 31.07.2015 with a grace period of six months. Unfortunately the Ops failed to discharge their obligation under the sale and construction agreement in handing over the schedule property to the complainant after construction of the building.  The Ops have rendered themselves as a chronic defaulter.
7. The complainant has been personally visiting to the office of the OP and enquiring about the completion of the construction except the assurances and promises there has been no fruitful result from the side of the Ops.  The Ops have been postponing the matter alleging that the project has been stalled because of certain unexpected and unforeseen reasons. The Ops have not disclosed the exact reason as to why the project has been stalled.
8. The complainant has waited almost for seven years and he is not ready to wait further for an indefinite period. He has lost all the hopes and trust and confidence on the Ops and requested the Ops to refund the amount, but the Ops are avoiding the repayment of the amount on one or the other pretext. The complainant also issued a legal notice on 30.03.2020 and inspite of receipt of the said notice the Ops neither replied nor complied with the demands of the complainant. Hence the complainant has filed this complaint on the Ops for having committed deficiency of service.
9. In response to the notice, OP appears and filed their version. It is the case of the OP that the complaint is not maintainable and liable to be dismissed. The transaction appears to be money lending transaction. The complainant instead of filing a suit for recovery of money has filed this complaint in order to avoid payment of court fee. The real transaction between the parties is only loan transaction and not any agreement of sale and construction agreement.  The complainant is doing money lending business without having any licence under the money lenders act.  He has adopted the method of taking the agreements of sale and construction agreement in the absence of any plan or licence to build and the building bye-laws read together would indicate clearly that the transaction is loan transaction. Hence the complaint is not maintainable.
10. There is no cause of action and the complaint is barred by time. The complainant needs to approach the civil court for such relief. There is no clause for the balance amount payable by the complainant to the OP in both the agreements.  The complainant has forcibly taken the signature of this OP and created the document to grab the sympathy of this court.
11. It is the case of the Ops that they have not received any payment under the sale agreement and the construction agreement dated 28.03.2013. The flats booked by the complainant were supposed to be completed and handed over to the complainant on or before 31.07.2015 with a grace period of six months i.e., on or before 31.01.2016. 
12. The project was delayed because of not getting the plan sanction in time and also due to recession in the economy as a whole and real estate in particular.  These Ops have planned for a high raise building in the schedule property and were forced to take NOCs and sanctions from 13 different government departments and authorities which took more than 19 months to getting final sanction from the concerned plan sanctioning authority BMICAPA. Because of delay and the financial crunch these Ops have decided to exit from the project and started negotiating with other builders and one of such negotiations was successfully made with builder Sri.Raghavendra, Proprietor, M/s Prime Estates.
13. It is also the case of the OP that the complainant was aware of the fact that the negotiations were going on with Sri.Raghavendra for taking over the project by them.  Being aware of the same the complainant entered into MOU dated 18.07.2017 with Sri.Raghavendra to take back the same amount shown in the agreements between the complainant and this OP dated 28.03.2013. After opting to cancel his booking and take back his amount paid under the sale and construction agreement the complainant entered into MOU with Sri.Raghavendra of Prime Estates and has already taken Rs.5,00,000/- on 19.07.2017. By virtue of the complainant having entered into MOU with Sri.V.Raghavendra, this Ops obligation to the complainant under the agreement dated 28.03.2013 come to an end and the complainant has lost all his rights and claims under these agreements.  The complainant is in possession of the original MOU dated 18.07.2017 and has filed this complaint by suppressing true facts. The complainant has lost all his rights under the said agreement and he cannot claim any refund or return of the alleged claim amount.
14. It is further case of the OP that the complainant has also filed another case, against V.Raghavendra claiming the very same amount of Rs.27,50,000/- shown in the agreements by making false allegations.  All these facts i.e., entering into agreement with this OP and entering into MOU with Raghavendra and receiving Rs.5,00,000/- as advance amount, proves clearly the illegal intention of the complainant in filing multiple cases and claims for the same amount of Rs.27,50,000/-.  The complainant is not a consumer and the complaint is not maintainable.  The Ops have denied all other allegations made in the complaint and prays for dismissal of the complaint.
15. The complainant has filed his affidavit evidence and relies on 05 documents.  Affidavit evidence of official of OP has been filed and OP relies on 01 document.
16. No oral argument is advanced on behalf of both the parties.  Perused the written arguments filed by the OP.
17. The following points arise for our consideration as are:-

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

18. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

19. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, evidence and documents by the parties.

20. The complainant agreed to purchase the schedule property entered into sale agreement dated 28.03.2013 and construction agreement on the same day. The Ops have agreed to construct the residential apartment on or before 31.07.2015 with a grace period of six months and they have agreed to sell the schedule property for a total sale consideration of Rs.20.08.650/- and received the entire amount on the date of agreement of sale on 28.03.2013 itself by way of RTGS, which is duly acknowledged by the OP in the sale agreement.

21. The complainant further agreed and entered into construction agreement agreeing to pay Rs.1,40,54,811/- and out of that he has paid Rs.7,41,350/-.  The complainant has totally paid Rs.27,50,000/- towards the schedule property.  As per the agreement document No.A1 and A2, the Ops have agreed to complete the construction on or before 31.07.2015 with a grace period of six months. After paying the amount the complainant has waited for almost seven years. Even after lapse of seven years, the OP failed to commence the project.

22. Under these circumstances, the complainant has decided to cancel the agreement and requested the Ops to refund the amount by issuing a legal notice on 30.03.2020 as per document No.A3, the said notice was duly served on the Ops as document No.A4 and A5. Inspite of service of notice, the OP neither replied nor complied with the demands made by the complainant.

23. In support of his contention the complainant has produced A1 to A5 as referred above. On the other hand, the contention taken by the OP is that the complainant is a money lender and doing money lending without having any licence.  The transaction took place between the OP and complainant is only relating to the loan and not related to any real estate business and hence the complaint is not maintainable.

24. The Ops have clearly admitted about the execution of A1 and A2 but denied that the complainant has transferred the amount of Rs.27,50,000/- through RTGS and it is further case of the OP that the said amount never transferred or paid to their bank account.

25. OP further admitted that they have to complete and hand over the flats on or before 31.07.2015 with a grace period of six months i.e., on 31.01.2016. The project was delayed because of not getting the plan sanction and also due to recession in the economy as a whole and real estate in particular. These Ops have planned for high raise building in the schedule property and were forced to take NOCs and sanctions from 13 different government department and authorities which took more than 19 months to get final sanction from the concerned plan sanctioning authority BMICAPA. Because of the delay and the financial crunch they have decided to exit from the project and started negotiate with other builders and one of such negotiation successfully made with builder Sri.Raghavendra, Prop. M/s Prime Estate.  The complainant is aware of this fact. Being aware of the same the complainant entered into MOU on 18.07.2017 with Sri.Raghavendra to take back the amount in the agreements dated 28.03.2013 by cancelling the booking.  Complainant has already received Rs.5,00,000/- from Sri.Raghavendra on 19.07.2017. In view of the complainant having entered into MOU with Sri.Raghavendra the obligation of this OP to the complainant under the agreements dated 28.03.2013 came to an end and the complainant has lost all his rights.  Inspite of that the complainant after entering into MOU with Sri.Raghavendra and by taking Rs.5,00,000/- from him towards the advance amount has filed this case with illegal intention. The complainant has also filed multiple cases for recovery of Rs.27,50,000/- from these Ops.

26. In addition to this the complaint is barred by limitation. The complainant has filed this complaint after lapse of 1714 days i.e., 4 years 7 months and 12 days. It is the specific contention taken by the Ops that the complainant neither paid any amount under the agreements and this OP have not received any amount from the complainant.

27. Even though the Ops have taken several contentions have not at all produced any documents except the copy of the MOU Ex.R1. the Ex.R1 is a Memorandum of Understanding alleged to be entered into between one Raghavendra and complainant as per Ex.R1 the complainant has received Rs.5,00,000/- and further agreed to cancel the sale and construction agreement dated 28.03.2013 after received the balance amount of rs.32,50,000/- from the said Sri.Raghavendra on behalf of the Ops.

28. The Ops have not produced any documents before this Commission to show that due to their financial problem they have sold their project and it is taken over by Sri.Raghavendra.  Except the unregistered MOU Ex.R1 there is no documents placed to show that the said project was taken over by Sri.V.Raghavendra, Prop. M/s Prime Estates.

29. The Ops have further failed to establish that they have not received any amount on 28.03.2013 paid by the complainant through RTGS. If the Ops have not received any amount from the complainant, they would not have executed the Ex.A1 and A2 and they would not have acknowledged the receipt of the amount in Ex.A1 and A2.

30. The Ex.A1 and A2 executed by the OP in favour of the complainant is not yet cancelled and admittedly the Ops have not at all paid or refunded any amount i.e., Rs.27,50,000/- received by them through RTGS on 28.03.2013. Admittedly the complainant has waited for more than seven years.  When the Ops have failed to complete the project and hand over the schedule property the complainant was forced to take the decision to cancel the agreements and requested the Ops for refund of the amount.  The Ops have neither refunded the amount nor completed the construction of the schedule property. The Ops cannot keep the amount for years without refunding or without completing the project and without handing over the schedule property to the complainant. The complainant cannot wait for years to take the possession of the schedule property in which the Ops have not at all commenced the project even after seven years. Under these circumstances the Ops have committed deficiency of service. Hence the complainant is entitled for the relief claimed in the complaint. Therefore, we answer point No.1 in affirmative and point No.2 partly in affirmative.

31. Point No.3:- In view the discussion referred above the complaint is liable to be allowed in part and Ops are liable to pay Rs.27,50000/- with interest at 10% p.a., from the date of respective payments till realization along with compensation of Rs.5,00,000/- with litigation expenses of Rs.10,000/- to the complainant and we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The Ops are directed to pay Rs.27,50,000/- with interest at 10% p.a., from the date of respective payment till realization.
3. Ops are further directed to pay Rs.5,00,000/- towards compensation with litigation cost of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.27,50,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 31^ST day of JULY, 2023)

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

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