BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 27^th DECEMBER 2022

PRESENT

HON’BLE Mr. JUSTICE HULUVADI G. RAMESH: PRESIDENT

Mr KRISHNAMURTHY B. SANGANNANAVAR: JUDICIAL MEMBER

Mrs DIVYASHREE M: LADY MEMBER

Consumer Complaint No.17/2020

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BY Mrs. M.DIVYASHREE : LADY MEMBER

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//ORDER//

1. This is a complaint filed under Section 17 of Consumer Protection Act, 1986 against the OP alleging the deficiency in service and prays for orders:
   1. To direct OP to refund the entire sum of Rs.28,77,000/- along with an interest thereon at 18% p.a. from the date that the payment was due.
   2. To direct the OP to pay a sum of Rs.10,00,000/- towards untold agony, inconvenience, hardship, cost of litigation suffered by the Complainant and such other relief as the Commission deems fit.

2. On admission of this complaint, notice of compliant is ordered on the OP, however could not be possible to serve the notice in an ordinary manner, as such served with paper publication, yet OP remained absent and the Commission held, service by way of paper publication is sufficient, accordingly OP is set exparte.  In such circumstances, complainants submitted their affidavit evidence and documents from Annexure-1 to Annexure-10, thereby closed evidence.  The Commission examined complaint averments, Annexure-1 to Annexure-10 and heard learned counsel for complainants.

3. It is the case of the complainant that, OP is a registered company under the Companies Act, claims to be one of the reputed builders in Bengaluru who delivers high quality Apartments and Villas for affordable prices.  The company has registered a steady growth in its construction activities primarily focused on residential projects in South Bangalore and in Chennai as a reliable promoter with quality construction.  The original land owners converted a major portion of land bearing Sy.No.129/1, measuring 02 acres 07 guntas and 04 guntas of Kharab, situated at Rayasandra Village, Sarjapura Hobli, Anekal Taluk, Bangalore Urban District, herein after mentioned as Schedule Property-A. The OP has entered into a Joint Development Agreement dated 07.06.2013, with the original land owners, for the development of the said property and to construct apartment building on the said property.  To find support complainants got marked the Copy of Joint Development Agreement as Annexure-2.

4. We perused the said Joint Development Agreement. Under the said Joint Development Agreement the OP (mentioned as Developer in the Joint Development Agreement), had to deliver 40% of the constructed area in the apartment building with proportionate parking space and common area with undivided share in the property to the original owner.  The remaining 60% of the constructed area in the apartment building with proportionate parking space and common area with undivided share in the property was to remain with the OP.

5. The original owners have also executed a General Power of Attorney in favour of the OP, for construction of apartment building over Schedule property-A and sale of the 60% of the constructed area in the apartment building with proportionate parking space and common area with undivided share in the property.  Then since, a lot of discrepancies arose in the said GPA as well as the Joint Development Agreement, the original owners and the OP entered into a Rectification Deed dated 19.08.2013.  To find support this copy is produced by the complainant as Annexure-3.

6. It is stated that the complainants being husband and wife entered into Sale Agreement dated 13.02.2014 with the original owners and the OP, to purchase a flat in the Schedule-A property.  The complainants have also entered into the Construction agreement dated 13.02.2014 with the OP. The sale agreement dated 13.02.2014 and the Construction Agreement dated 13.02.2014 are produced by the complainant as Annexure-4 and Annexure-5 respectively.  
7. It is specifically alleged by the complainants that, under the Construction Agreement dated 13.02.2014, the OP had agreed to complete the construction of the said flat and handover possession of the flat within two years and two months grace period from the date of the said Construction Agreement.  Complainants have paid a sum of Rs.25,000/- on 01.04.2013 and Rs.75,000/- on 02.05.2013, towards booking of the said flat, to the OP vide cash payment.  With regard to payments made, the complainants have relied upon the Annexure-6 series A&B. Complainants have further made a payment of Rs.1,00,000/-, towards down payment of the said flat, vide cash payment to the OP.  To substantiate this above said payment, complainants have produced the receipts of payments marked as Annexure-7.  Complainants further submitted in affidavit evidence that, they have obtained a loan of Rs.26,25,000/-, from State Bank of India, RACPC, Malleshwaram Branch, and have released Rs.23,50,000/- to the OP.

8. The Annexure-8 series, the loan sanctioned by the bank and the bank account statement established proper evidence by the complainant. Furthermore, the complainants submitted that the OP had promised to pay any additional interest on the loan if there is delay in completion of the residential flats.  On account of this, complainants have approved the second half of the loan which was disbursed to the OP. Complainants have paid Rs.3,27,000/- towards interest of the said loan being released and the bank account statement reflecting the said interest is marked as Annexure-9.  Thus in our view these documents from Annexure No.1 to 10 coupled with affidavit evidence, contents of complaint conjointly established that OP had entered into these agreements with complainant in respect of flat, construction agreement and also received payment of Rs.25,50,000/- from the complainant.                                                                                                                                                                                                                                                                                                                                                                                                 

9. As per the agreement for construction at condition no.2 it is mentioned that the developer assured to complete the project within 24 months and with 02 months grace period from the date of this agreement but OP has failed to handover the possession of the said schedule property within the time of 02 years and 02 months grace period, i.e., the possession of the said flat had to be handed over to the complainants on 13.04.2016, which the OP has failed to comply.  The complainants has filed Annexure-10 status of construction of the under developed residential flats.

10. It is submitted that complainants even after the promised date, made several calls to the OP and requested the OP to comply with the promises and handover the property to complainants.  However, the OP on one pretext or the other has postponed the date of the delivery and provided false assurances that the possession would be handed over by September, 2017.  Complainants agreed to the assurance made by the OP and expected the possession by September, 2017.  However, no efforts have been put from the OP to complete the said flat and handover the possession. Complainant states that even on the date of raising complaint and even now OP failed to keep up their promise agreed under this agreement.  It is to be noted herein that they have promised to compensate to the complainants to pay additional interest on the loan if there is any delay in completion of the residential flat.  It is found from enquiry, provided the complainants have paid all the amounts payable for the purchase of the flat, but OP have failed to complete the project.  In such circumstances, considering affidavit evidence coupled with documents, since OP have failed to rebut these materials on record, are to be held receiving Rs.25,50,000/- have rendered deficiency in service being service provider, and the complainants being consumers rightly raised consumer complaint under Section 17 of Consumer Protection Act, 1986 seeking reliefs.

11. Accordingly, Commission proceed to allow the complaint in part and direct OP to pay Rs.25,50,000/- along with interest @ 12% p.a. from the date of receipts till realization and do pay Rs.1,00,000/- as compensation for mental and physical agony and Rs.25,000/- towards litigation cost within 60 days from the date of order.

12. Furnish Free Copy of the Order to the parties. 

  Lady Member                                  Judicial Member                              President

*GGH*