CC No.1024.2015

Filed on 01.06.2015

Disposed on 17.06.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 17^th DAY OF JUNE 2017

CONSUMER COMPLAINT NO.1024/2015                                                                                                                                                                                                                                                   

PRESENT:

    Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

            PRESIDENT

                 Smt.L.MAMATHA, B.A., (Law), LL.B.

                          MEMBER

                                            V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 01.06.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay compensation of Rs.2,00,000/- and other reliefs. 

2. The brief facts of the complaint can be stated as under:-

In the Complaint, the Complainant alleges that relying on the representation of the Opposite Party, the Complainant had agreed to invest in a residential project “Shriram Summitt” proposed to be developed by the Opposite Party at Sy.Nos.80/1, 80/2, 80/3, 80/4, 84/6, 84/7, 85/2, 87/2 and 89/1 and 2 of Veerasandra Village and Sy.Nos.121/1, 121/2 and 121/3 of Hebbagodi Village of Attibele Hobli, Anekal Taluk, Bangalore.  As per the ‘Cost Break-up for Ground Floor Apartment’, the Opposite Party offered to sell an unit flat with Super Built–Up Area measuring 1,190 Sq.ft @ Rs.3,400/- per Sq.ft.  In response thereof, the Complainant having accepted the said offer has paid a sum of Rs.2,00,000/- towards the ‘Booking Amount’ for a 2 BHK Flat having 1,190- Sq.ft., of Super Built-Up Area.  After having acknowledged receipt of the requisite ‘Booking Amount’, the Opposite Party have issued the “Provisional Allotment Letter Ref.No.SPL/PAL/Smt/13/496 dt.30.10.2013”, thereby formally confirming the Complainant’s reservation of the identified Flat under the scheme “Pre-launch Offer’ in the Project.  The Opposite Party represented that the Allotment Letter will be issued upon receipt of certain approvals from the Statutory Authorities.  At the time of booking the Flat, the Opposite Party’s marketing personnel Ms.Shruti represented that the Statutory Approvals were expected during the month of November, 2013 and thereafter, the Project was to be launched in the month of December, 2013.  Thereafter vide e-mail communication dt.10.12.2013, the Opposite Party communicated the “completion of various formalities and clearances from statutory bodies required for sanction of plan from BDA”, and also confirmed the Opposite Party’s plan to launch the Project during the 2^nd week of January 2014.  However, the Project was not launched in the second week of January 2014 and furthermore, the Complainant was not informed of the delay in the launch or the reasons thereto.  The next communication received by the Complainant was only on 06.02.2014, informing the Complainant that the Project has “obtained all the approvals” and the same was being scheduled for launch.  The Complainant was requested to visit the Project Site to understand the changes made to the ‘Project Layout’ as per the Approved Plan.  As per the above said E-mail when the Complainant’s brother met the Opposite Party representative, Ms.Shruti from the Marketing Team, it was communicated that the Super Built-Up Area of the identified Flat was being reduced from 1,190 Sq.Ft to 1,175 Sq.Ft and was provided with a revised “Tentative Cost Break-up”.  Upon discussions and, based on the Opposite Party’s representation in respect of the regulatory authority’s suggested changes to the Floor Area measurements, the Complainant acknowledged the proposed changes that eventually resulted in a decrease of the Super Built-Up Area of the identified Flat from the initial 1,190 Sq.Ft., to 1,175 Sq.Ft.   The Project was officially launched on 14.02.2014.  Subsequent to the launch, the Complainant received no further communication from the Opposite Party relating to the commencement of the construction activities until 25.06.2014, when the Complainant received an e-mail from one Ms.Manjula informing the Complainant that the ‘Allotment Letter’ will soon be dispatched and that the construction will commence from July, 2014.  At that time, the Complainant was also requested to make payment of 20% towards execution of Agreement on or before 30^th June, 2014,  there has been an inordinate delay in the commencement of the construction activities despite the Project having been launched on 14.02.2014 without the Opposite Party and/or Opposite Party representatives making any efforts to communicate the delay or the reasons for the delay thereof to the Complainant.  The Complainant referring to e-mail communications dt.10.12.2013 and 13.02.2014, respectively addressed by one Mr.Ravindra and Ms.Susheela, reiterates that, despite receipt of all requisite Statutory Approvals and the formal Project kick-off, for reasons better known to the Opposite Party, the Opposite Party deliberately failed to:                     (a) commence construction of building complex in the Project; (b) provide any timelines for the Project completion to the prospective purchasers; (c) justify the delays cause, the Opposite Party and its representative have acted in an unreasonable and arbitrary manner by demanding the Complainant to make payments within an extremely short time-frame of five days from the date of the e-mail communication, dt.25.06.2014 that too, without any advance communications or, sharing the Allotment Letter, or the format of the Agreements and the Title Documents relating to the Project.  Upon receipt of the said e-mail communication, dt.25.06.2014, the Complainant acted promptly and shared an e-mail from ICIC Bank’s representative confirming that the “10:80:10 Scheme” was applicable to the Project.  Pursuant to the said Scheme, the Complainant was required to make 10% payment instead of the 20% payment demanded by the Opposite Party.  Acting in furtherance thereto, the Complainant vide e-mail communication, dt.27.06.2014 volunteered to request for a “Demand Note for payment of the pre-agreed 10% amount” along with the “Detailed Break-Up of the total cost of the identified Flat”.  Though the Opposite Party representative Ms.Manjula reverted with the details of the 10% amount on the same day, the Complainant submits that no Detailed Cost Break-Up was shared and, the Complainant had to subsequently send further reminders on 27.06.2014 and 30.06.2014, before it was finally shared by the Opposite Party on 30.06.2014 clearly details the payment schedule, it was silent on the Project Schedule and its Completion Timelines.  Upon comparison between the Cost Break Up Nos.1, 2 and 3, and thereby noticing substantial costs differences, the Complainant requested the Opposite Party Ms.Manjula for a call to seek clarifications before proceeding to make payments.   Finally, the Complainant met with Ms.Manjula on 05.07.2014 at the Project Site Office to seek clarifications regarding Non-issuance of a valid Allotment Letter prior to making any demand for payment of the agreed 10% initial amount;  Substantiation for inclusion of the additional cost of Rs.25,000/- towards the claimed “Solar” connection; Substantiation for inclusion of an additional cost of Rs.10,000/-towards the claimed “STP” facility; For purposes of clarity, line items (ii) and (iii) above were not part of the Cost Break-Up Nos.1 & 2; Substantiation for the increase in Maintenance Charges from Rs.3.00/- per Sq.Ft and Variation in the “Construction Charges” used for the calculation of VAT and Service Tax in each of the Cost Break-Ups despite no variation being notified in the Tax rates by the tax regulatory Authorities.  This very instance of vague computation raises concerns over the care and due diligence exercised by the Opposite Party in its calculation of the total cost of the identified Flat in particular and, the conduct of business in ethical manner in general.  Ms.Manjula’s responses to the Complainant evasive, vague and ambiguous during the meeting, but Ms.Manjula also responded in an extremely rude, unprofessional and arrogant manner, these acts by the Opposite Party and /or its representative squarely amounts to ‘Deficiency in Service’ as enunciated under the provisions of the Consumer Protection Act.   She did not escalate Ms.Manjula’s rude, unprofessional and arrogant behaviors at that point in time as Ms.Manjula tendered an oral apology for her “tone” to the Complainant’s brother, who had accompanied the Complainant to the said meeting.  On the other hand, when Ms.Manjula’s responses failed to convince the Complainant, the said representative tried to evade/defer the matter by asking the Complainant to reach out to the Marketing Team for any further clarifications.  Subsequent to which, one Ms.Shruti from the Opposite Party’s Marketing Team joined the discussions, but Ms.Shruti also failed to provide any clear or convincing responses; Only stereotype response the Complainant received from the Opposite Party representatives to her queries are to the effect that the said changes were as “per Company’s norms”, when the Opposite Party representatives informed the Complainant that the copies of the legal documents /title documents would be provided only upon receipt of 20% payment.  The Opposite Party representative Ms.Manjula continued to provide evasive and ambiguous responses as is clearly evidenced by the e-mail communications exchanged between the Opposite Party and the Complainant from 08.07.2014 un till 21.07.2014.  When she reasserted that she was unhappy with the explanations offered by the Opposite Party’s representatives, Ms.Manjula and Ms.Shruti, and sought for a way forward to handle this matter, the only resolution offered by either of the Opposite Party’s representatives were “to cancel” the booking without volunteering to offer any other recourses.  From the evasive, ambiguous and unclear responses provided by the Opposite Party, hat instead of passing on the resulting cost benefits arising on account of decrease in the super built-up area of the Flat from the initial 1,190 Sq.Ft., to 1,175 Sq.Ft., to the Complainant/prospective purchaser, the Opposite Party has arbitrarily and without any justification offset a large portion of the cost benefit in the Cost Break-Up No.3 to meet the Opposite Party’s ulterior motives and with malafide intentions of making illegal gain at the cost of the prospective purchaser by inclusion towards additional costs being a sum of Rs.25,000/- and Rs.10,000/- towards the so-claimed Solar and STP, respectively despite these being legally mandated requirements even at the time of sharing the Cost Break-Up Nos.1 & 2 and increasing the Maintenance Charges from Rs.3.00 to Rs.3.50 and totaling to an amount of Rs.7,050/-.   The unethical inclusions and arbitrary escalations in the cost/act of making illegal gain at the cost of the customer/Complainant’s innocence are nothing but a ‘broad day-light robbery’ and, the same were unwarranted from a longstanding corporate like the Opposite Party, especially in light of the fact that the Opposite Party stands to gain by recovering similar amounts from the rest of the units or flats in the said Project is enormous.  The Opposite Party’s whimsical/dogmatic reasoning for the escalation in certain costs and/or inclusion of various other arbitrary cost/charges/levies etc., are nothing but the Opposite Party’s “bare assertion fallacy” or “ipse-dixit”.  Furthermore, in order to meet the Opposite Party’s unlawful motives, the Opposite Party has acted in an unfair and unreasonable manner.  The Complainant was issued a Demand Note for payment on 27.06.2014, even prior to the issuance of an Allotment Letter, which was provided by the Opposite Party only after multiple requests and reminders by the Complainant; As per Clause-IV of the Allotment Letter, “the allotment requires to be necessarily followed by execution of the Agreements, by making the required payment, within 15 days of the Agreements being made available to the Complainant.  Despite, the Agreement not being made available to the Complainant, an e-mail communication dt.24.07.2014 was sent by the Opposite Party invoking the termination provisions thereby cancelling the allotment as per Clause IV of the Allotment Letter.  The draft of the Agreements were made available to the Complainant only after the above e-mail was sent to the Complainant.  The Opposite Party has engaged in ‘unfair trade practices’ by abusing its dominant position and unequal bargaining power to assert and insist on arbitrary, one-sided, unreasonable and unfair terms and conditions in its Allotment Letter and/or Agreements.  Reasonable changes proposed by the Complainant to the Allotment Letter and Agreements were rejected outright without any explanation stating that they “cannot be edited”.  This is evidenced by the Opposite Party e-mail responses dt.07.08.2014 and 26.08.2014.  The e-mail sent by Ms.Aanchal stated that the Complainant’s allotment has been “Rejected” as no modification in the standard Allotment Letter was acceptable to the Opposite Party.  The act of cancellation of the allotment for reasonable changes proposed or included by the Complainant not only indicates the high-handedness with which the Opposite Party handles its customers, but also clearly evidences the abuse of its dominant position and unequal bargaining powers by the Opposite Party to the detriment of its Customers/and to compel the Customers to unwillingly accept the unreasonable, arbitrary and unfair terms.   The aforesaid arbitrary acts of the Opposite Party has been despite the Complainant’s efforts in good faith to resolve the matter, the same is evident from the fact that, in accordance with the requirements of Clause IV of the afore-referenced Allotment Letter when the Complainant tried to make payments to the Opposite Party on 05.08.2014, the Opposite Party again acting arbitrarily refused to accept any payments for reasons owing to the mark-up made by the Complainant in the Allotment Letter.  Subsequent to the Opposite Party’s refusal to accept the payments, the Complainant couriered a cheque bearing No.757682, dt.August 5, 2014, drawn on ICIC Bank, Bangalore Branch for an amount of RS.2,76,212/- towards the 10% payment and e-stamping charges which was received by one Ms.Roopa at the Opposite Party’s corporate office.  Despite the Complainant’s anguish over the Opposite Party’s arbitrary decisions for whimsical escalation of the cost of the identified Flat and, for deliberately failing to substantiate such escalations to shield the well-crafted unlawful actions to meet its ulterior motives, apart from out-rightly refusing to entertain/address the Complainant and/or notified grievances, the Opposite Party has directly infringed the Complainant’s lawful right.  Without any other alternatives, the Complainant issued Legal Notice on 12.09.2014, thereby seeking to know the fate of the Courier sent and, calling upon the Opposite Party’s response to the same within 15 days.  The Complainant has no response to the said Legal Notice till date.  Subsequent to the receipt of the Legal Notice, the Opposite Party’s representative, one Ms.Anchal, Legal Manager requested for a meeting with the Complainant which was scheduled on September 20, 2014 at the Opposite Party’s corporate office, during which Ms.Anchal tried to convince the complaint to cancel the allotment owing to the “bad” relationship between the Complainant and the customer care department of the Opposite Party.  During the course of the said meeting, she made it clear to Ms.Anchal that she had no intentions whatsoever to cancel the allotment and if, the Opposite Party was not willing to negotiate some of unilateral and onerous terms and conditions in the Allotment Letter and Agreements, she would have no other recourse apart from approaching a court of law for relief.  During the entire meeting, the only option offered by Ms.Anchal to resolve the outstanding issues between the Complainant and the Opposite Party was to ask the Complainant to voluntarily withdraw/cancel the booking as the Opposite Party was willing to entertain any changes or modifications to the terms and conditions of the Opposite Party’s format of allotment letter and agreements despite the Complainant reiterating that the changes requested by the Complainant were fair and reasonable.  At the end of the meeting, Ms.Anchal agreed to revert to the Complainant after she has had a chance to consult with the Opposite Party’s management team. Subsequent to the meeting, the Complainant states that she was shocked to receive a letter, dt.September 23, 2014 stating that the provisional allotment has been cancelled for default in making payment of the advance sale consideration in accordance with the terms of Clause IV of the Allotment Letter and stating that he Opposite Party will be deducting a sum of Rs.25,000/-from the Booking Amount towards administration charges in accordance with the Clause-IV of the Allotment Letter. On the other hand, the Termination Letter clearly stated that the Opposite Party “has not accepted and/or encashed the cheque dt.August 05.2014” drawn by the Complainant in favour of the Opposite Party “as the Provisional Allotment of the Apartment stood cancelled”.   Upon receipt of the Termination Letter, the Complainant issued a response on October 5, 2014 stated by the Opposite Party for termination of the Provisional Allotment was baseless.  The Complainant was required to make the required payment “within 15 days of the Agreements being made available” to the Complainant. The drafts of the Agreements were shared with the Complainant on July 24, 2014 and immediately thereafter, and well within the said timeframe of 15 days, the Complainant’s brother visited one site office on August 5, 2014 and submitted a cheque bearing No.757682, dt.August 5, 2014 for a sum of RS.2,76,212/- towards 10% payment and e-stamping charges to Ms.Manjula, who refused to accept the cheque.  The e-mail communication sent by the Opposite Party on August 7, 2014 “rejecting” the Complainant’s allotment on the ground that no client modification in the standard allotment letter was acceptable and further that no reference to the payments were also made during the Complainant’s meeting with Ms.Anchal held on September 20, 2014, thereby accentuating the inconsistencies and contradictions in the reasons offered by the Opposite Party for cancellation of the allotment in the e-mail communication, dt.07.08.2014.  Due to series of willful defaults, inactions of the Opposite Party, he Complainant is put to untold hardship, mental agony and financial losses and the said act on the part of the Opposite Party squarely amounts to “deficiency in service” and the Opposite Party on the guise of providing flats and quick possession instigate the Complainant to purchase flat by paying huge amount and later divulge themselves by not providing the committed services and thus, the said act amounts to unfair trade practice.  Thus, the Opposite Party are liable to be declared to have indulged in unfair trade practice.  Hence this complaint.

3. In response to the notice, the Opposite Party put his appearance through his counsel.  The Opposite Party filed his version, in the version pleaded that the complaint is false, frivolous and baseless and hence not maintainable either in law or on facts.  The claim of the Complainant is for specific performance of a non-existing contract and hence is not maintainable in law.  The Opposite Party has never entered into any sale agreement as alleged in the complaint.  The claim of the Complainant involve finding of complicated facts relating to the existence of any contractual or legal rights and obligations of the parties concerned and hence this Hon’ble Forum is not proper Forum for adjudication of such a claim.  The complaint averments do not disclose any deficiency of service or material dispute to attract the provisions of Consumer Protection Act, 1986 as the Complainant has neither purchased any goods nor availed any services wherein any deficiency could be contemplated.  The undisputed facts and controversy between the Complainant and the Opposite Party does not make the Complainant “Consumer” as defined U/s. 2(1)(b) of the Consumer Protection Act.  During the course of its business entered into a Joint Development Agreement (JDA) with the owners of landed property bearing Sy.Nos.80/1, 80/2,80/3,80/4, 84/6, 84/7, 85/2, 87/2 and 89/1 and 2 of Veerasandra Village and Sy.Nos.121/1, 121/2, 121/3, 121/5, 121/6, 121/7, 121/8, 121/9 and 121/10 of Hebbagodi Village of Attibele Hobli, Anekal Taluk, Bangalore namely “Shriram Summitt” for development of lands abutting to each other.  In pursuance of the said JDA, the Opposite Party has got formed a scheme of developing the said complex to be known as “Shriram Summitt” consisting of independently transferable and heritable dwelling units.  As per the said scheme, opportunities were provided to interested persons for acquiring the dwelling units thereof.  Accordingly, persons interested to acquire apartments under the said scheme were required to enter into sale-agreement coupled with construction agreement with the Opposite Party in relation to the apartment intended to be acquired by them.  The said Scheme was widely published by the Opposite Party enabling the interested persons for booking the specific apartment thereof to be acquired.  After the publication of the scheme as stated above, on 30.09.2013, by paying Rs.2,00,000/-, the Complainant has booked the apartment to be constructed as per the scheme on getting necessary approvals amongst others from Competitive Authorities.  The said booking of the complaint came to be acknowledged by the Opposite Party through its Provisional Allotment Letter dt.30.10.2013 subject to the conditions mentioned therein.  Progress of the above said scheme was communicated to all the persons who got reserved eh respective apartments to be acquired including the Complainant from time to time as and when required and similarly on 24.06.2014 the Opposite Party has issued the Allotment Notice dt.21.06.2014 to the Complainant.  The Complainant insisted for changes in the termination clause of the said Allotment Notice which was not accepted by the Opposite Party and accordingly the Complainant virtually ad willfully neglected to accept the Allotment Notice.  Apart from that in the guise of seeking changes in the termination clause of the said Allotment Notice as well as seeking changes in the payment schedule the Complainant was trying to take undue advantages of her own wrongs which constrained the Opposite Party to issue the demand notice dt.01.07.2014 to the Complainant.  As the Complainant neglected to comply with the said demand notice dt.01.07.2014, the Complainant was requested on 26.08.2014 to collect her cheque by holding that the allotment of apartment is rejected.  Subsequently, on 23.09.2014 the Opposite Party has also issued the termination of allotment notice dt.21.06.2014 which was sent to the Complainant through registered Post.  In view of the facts and circumstances stated above the Complainant is not entitled to claim any of the reliefs sought for in her complaint made before this Hon’ble Forum.   The development Scheme were communicated to the persons who are interested to acquire the apartments therein including the Complainant.  Thereby, the customers of the Opposite Party are informed about the clearances/No objection certificates obtained from various statutory Authorities such as Airport Authority of India, Department of Fire and Emergency Services, Pollution Control Board, BESCOM, BWSSB, BSNL etc.  Prior to obtaining Development plan and building license from Bangalore Development Authority.  After receipt of the aforesaid NOC’s from the statutory authorities and upon finalizing the plan and upon completing all the formalities the BDA was pleased to issue Development Plan on 26.02.2014 followed by sanction of Building plan on 17.06.2014 with respect to the Said project. It is clearly stated in the said E-mail communications that the project shall be launched only upon the receipt of building plan approved from BDA which was ultimately obtained on 17.06.2014.  Even as per the mutual consent of both the parties in adherence to the building plan approved by the Statutory Authority Apartment bearing No.16.01.02 measuring 1175 Sq.ft of Super Built Up Area was treated to be allotted in favour of the Complainant.  At the time of filing and signing the application form on 05.10.2013 itself the super built-up area made available to the apartment to be allotted to the Complainant is clearly got specified.  The project of the scheme was officially launched by the Opposite Party on 14.02.2014 and the construction activates thereof were commenced immediately after receiving the approval of building construction plan by the competent authority, which was obtained on 17.06.2014, it was informed and intended to enter into sale and construction agreements wherein all other aspects including time of project completion, handing over of documents and timelines for delivery and handing over of possession of apartment.  The Opposite Party is not a party to the correspondence by and between the Complainant and the ICICI Bank amongst other and the same is not binding on the Opposite Party. Cost Break-Up No.3 was made available to the Complainant and as per the same the Complainant was supposed to make 20% payment for execution of Agreements which is self-explanatory in this regard.  The Opposite Party never agreed to receive 10% amount as alleged by the Complainant changing the payment schedule.  The hard copy of the draft agreement was made available to the brother of the Complainant.  As the Complainant was seeking changes in letter of allotment notice and payment schedule which were not admitted by the Opposite Party and thereby the Complainant herself forced the Opposite Party for rejecting the allotment in its ordinary course of business.  The Complainant is not entitled to compel the Opposite Party to admit the proposals of her by seeking modification in the terms and conditions of allotment letter as well as payment schedule formulated by the Opposite Party in relation to the above said scheme.   The Complainant tried to compel the Opposite Party to accept the edited portion of the Letter of Allotment issued to her and thereby forced the working personnel of the Opposite Party to accept the payment of 10% instead of 20% supposed to be paid and hence it was rejected.  During the course of the said meeting the personnel of the Opposite Party tried to convince the Complainant that the proposal of the Complainant seeking deletion of the Clause-IV in the above referred Letter of Allotment Notice cannot be admitted by the Opposite Party as well as rescheduling of payment as sought for by her.  The personnel of the Opposite Party have made clear that if the Complainant was willing to accept the terms and conditions of the Letter of Allotment issued to her, then the Opposite Party will offer for allotting an alternative apartment to the Complainant which was declined by her.   Thus, the Opposite Party has requested the Complainant to collect her cheque dt.05.08.2014.  As per the Opposite Party the Complainant was supposed to pay an amount of Rs.7,46,936/-, which was indicated in the Demand Notice dt.01.07.2014.  However, the Complainant failed to make payment of the same and hence the Opposite Party having no other way was constrained to issue the Termination of Allotment Notice dt.23.09.2014.  When the Complainant herself is not willing to accept the Letter of Allotment Notice issued by the Opposite Party as well as not willing to accept the payment schedule formulated by the Opposite Party in pursuance of the above said scheme the Complainant is not entitled to make untenable allegation against the Opposite Party.  The Complainant is not entitled to any of the reliefs claimed by her.  Hence, prays to dismiss the complaint.     
4. The Complainant, Ms.Giji Cherian has been filed her affidavit by way of evidence and closed her side.  On behalf of the Opposite Party, the affidavit of Sri.V.Mallikarjunaiah has been filed.  Heard the arguments of both parties.

5.      The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Party ?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):- Negative

                POINT (2):- As per the final Order

REASONS

7. POINT NO.1:- By looking into the averments of the complaint and also the version of the Opposite Party, it is not in dispute that on 30.09.2013 the Complainant by paying a sum of Rs.2,00,000/- booked a flat with Opposite Party “Shriram Summitt” Project at Sy.Nos.80/1, 80/2, 80/3, 80/4, 84/6, 84/7, 85/2, 87/2 and 89/1 and 2 of Veerasandra Village and Sy.Nos.121/1, 121/2 and 121/3 of Hebbagodi Village of Attibele Hobli, Anekal Taluk, Bangalore. 

8. Further it is the case of the Complainant that as per the ‘Cost Break-up for Ground Floor Apartment’, the Opposite Party offered to sell an unit flat with super built –up area measuring 1,190 Sq.ft @ Rs.3,400/- per Sq.ft.  The Complainant accepted the said offer, the Opposite Party  after acknowledging the receipt of the ‘Booking Amount’ issued the “Provisional Allotment Letter Ref.No.SPL/PAL/Smt/13/496 dt.30.10.2013”.  At the time of booking the Flat, the Opposite Party’s marketing personnel Ms.Shruti represented that the Statutory Approvals were expected during the month of November, 2013 and the Project was to be launched in the month of December, 2013. To substantiate this fact, the Complainant in his sworn testimony, reiterated the same and produced the acknowledgement issued by the Opposite Party, it is dt.30.09.2013, as per this acknowledgement, the Opposite Party had received an advance amount of Rs.2,00,000/- from the Complainant, in respect of initial booking advance for the purpose of booking a flat in Block No.8004, Ground Floor and also produced the Provisional Allotment Letter it is dt.30.10.2013.  This Provisional Allotment Letter issued by the Opposite Party addressed in the name of the Complainant, by looking into this document, 2 BHK Apartment was reserved in the Shriram Summitt Project  situated at Electronic City and the price of the cost is Rs.3,400/- per Sq.Ft, Covered car Park for Rs.3,00,000/- and also produced the cost Break-up.  As per this document, the total cost of the 2 BHK Apartment Super Built-up Area 1190 total cost is Rs.53,18,417/- which includes services tax, vat and others.  This evidence of the Complainant has not been denied or disputed by the Opposite Party, thereby, it is proper to accept the contention of the Complainant that the Complainant on 30^th September 2013 by paying a sum of Rs.2,00,000/- booked a flat in Shriram Summitt Project at Electronic City measuring 1190  Sq.Ft., of Super Built-up Area at the rate of Rs.3,400/- Sq.Ft. 

9. It is further case of the Complainant that on 10.12.2013 through e-mail the Opposite Party communicated the “completion of various formalities and clearances from statutory bodies required for sanction of plan from BDA”, and also confirmed the Opposite Party’s plan to launch the Project during the 2^nd week of January 2014.  However, the Project was not launched in the second week of January 2014, the Complainant was not informed of the delay in the launch or even to substantiate this fact also the Complainant in her sworn testimony, reiterated the same and produced the e-mail dt.10.12.2013.  By looking into this mail, the said e-mail was communicated by the Opposite Party to the Complainant and informing the Complainant.  The Opposite Party got clearance from statutory bodies and also sanction of plan from BDA”, has been obtained and the same is expected by the 3^rd week of December and also the plan to launch the Shriram Summitt Project in the 2^nd Week of January, on receipt of the sanctioned plan and it is coming the evidence of the Complainant on 02.06.2014 the Opposite Party by sending mail to the Complainant informed about all the approvals were obtained and she did not launch the project.  Even there is no contra evidence to discard the evidence of the Complainant, therefore, it is proper to accept the contention of the Complainant.   
10. It is further case of the Complainant, on  06.02.2014 receiving e-mail Communication that the Project has been “obtained all the approvals” and the same was being scheduled for launch.  The Complainant was requested to visit the Project Site to understand the changes made to the ‘Project Layout’ as per the Approved Plan.  When the Complainant’s brother met the Opposite Party representative, Ms.Shruti from the Marketing Team, it was communicated that the Super Built-Up Area of the identified Flat was being reduced from 1,190 Sq.Ft to 1,175 Sq.Ft and was provided with a revised “Tentative Cost Break-up”.  Upon discussions and, based on the Opposite Party’s representation in respect of the regulatory authority’s suggested changes to the Floor Area measurements, the Complainant acknowledged the proposed changes that eventually resulted in a decrease of the Super Built-Up Area.  To substantiate this fact, the Complainant in her sworn testimony, reiterated the same and produced e-mail Communication dt.06.02.2014 by sending this e-mail, the Opposite Party informed the Complainant they have obtained all the approvals and schedule for launching the project and requested to visit the site and also produced the Tentative Cost Breakup-2.  By looking into this document, Saleable Area is mentioned as 1175 as against 1190 at the rate of 3400 Sq.Ft and cost of the apartment is Rs.39,95,000/-whereas in the cost breakup No.1, the Apartment Cost mentioned is Rs.40,46,000/- and Car Park covered is Rs.3,00,000/- as mentioned in the Break-Up No.1 also and total cost of the building is Rs.53,20,316/- as against Rs.53,18,417/- there is a marginal various in the cost and this is due to changes made in the sanction plan, for that reason, the Opposite Party have reduced the Super Built Up Area 1192 to 1175 even considering this also it is very negligible area as mentioned in the Cost Break Up No.1.  Therefore, it is not proper to accept that there is a deficiency in service on the part of the Opposite Party or Opposite Party adopting unfair trade practice. 
11. It is further case of the Complainant, the Opposite Party through e-mail dt.10.12.2013 and 13.02.2014 informed the Complainant, they would commence construction of building complex in the project on 14.02.2014 but Opposite Party fails to commence the Construction of the Project and also fails to provide time limit of completion Project and there is delay.  The Opposite Party’s representative have acted in an unreasonable and arbitrary manner by demanding the Complainant to make payments within an extremely short time-frame of five days from the date of the e-mail communication, dt.25.06.2014 that too, without any advance communications or, sharing the Allotment Letter.  In order to establish this fact, the Complainant in her sworn testimony, reiterated the same and produced the said e-mail Communication dt.25.06.2014 by sending this e-mail to the Complainant, the Opposite Party informed the Complainant, the Project will commence from July 2014 onwards and requested the Complainant to make the payment of 20% towards execution of agreement on or before 30^th of June 2014 and also e-mail Communication dt.13.02.2014 by sending this mail the Opposite Party informed the Complainant that Project will be launched on 14.02.2014.  Nodoubt, the Opposite Party by informing the Complainant Project will be launched on 14.02.2014 but in that communication they have not informed about the timeline of completion of project that itself is not the ground to believing the contention of the complainant that there is un-trade practice adopted by the Opposite Party or any deficiency of service.  On the other hand, even as the evidence placed by the Complainant herself i.e., payment schedule it is very clear that before execution of agreement the Complainant ought to have pay 20% of the cost i.e, Rs.8,58,925/-, thereby even though the Opposite party have demanded for payment of 20% of the cost of the apartment but the Complainant have not placed any evidence to show that she has paid 20% of the cost of the apartment.  Except payment of booking advance of Rs.2,00,000/-.  Furthermore, this is further clear even as per the evidence produced by the Complainant herself that the Opposite Party representative demanded the Complainant to pay the balance amount of Rs.2,71,141/- by sending mail dt.27.06.2014.  Therefore, it is not proper to accept the contention of the Complainant and also it is not proper to accept the contention of the Complainant that the ICICI  Bank’s representative confirmed that the “10:80:10 Scheme” was applicable to the Project.  Pursuant to the said Scheme, the Complainant was required to make 10% payment instead of the 20%.  This contention of the Complainant cannot be acceptable since even as per the evidence placed by the Complainant i.e., payment schedule it is very clear before execution of the agreement 20% of the cost of the project shall be payable by the Complainant but not 10% it may be agreement between ICICI Bank and the Complainant, but it is not binding on the Opposite Party. Thereby, it is not proper to accept the contention of the Complainant. 
12. In the complaint, the Complainant also alleges that Ms.Manjula’s not properly responding the queries evasive, and ambiguous answer during the meeting and also Ms.Manjula responded in an extremely rude, unprofessional and arrogant manner, this acts by the Opposite Party and its representative squarely amounts to ‘Deficiency in Service’.  To substantiate this, except the interested version of the Complainant, the Complainant has not placed any evidence in the event of arrogant behaviour and rude behaviors by Ms.Manjula, representative of Opposite Party Employee.  This act of Ms.Manjula can be rude brought to the notice of the High Authorities i.e, the Managing Director of the Project and others, instead of doing so the Complainant have not made any such complaint to the competent authorities, thereby it is not proper to accept the contention of the Complainant.

13. It is also alleged in the complaint, the Opposite Parties whimsical escalation in certain costs inclusion of various other arbitrary charges are nothing but the Opposite Party’s “bare assertion fallacy” or “ipse-dixit”.  In order to meet the Opposite Party’s unlawful motives, the Opposite Party have acted in an unfair and unreasonable manner.  The Complainant was issued a Demand Note for payment on 27.06.2014, even prior to the issuance of an Allotment Letter, which was provided by the Opposite Party only after multiple requests and reminders by the Complainant; As per Clause-IV of the Allotment Letter, “the allotment requires to be necessarily followed by execution of the Agreements, by making the required payment, within 15 days of the Agreements being made available to the Complainant.  Despite, the Agreement not being made available to the Complainant, an e-mail communication dt.24.07.2014 was sent by the Opposite Party invoking the termination provisions thereby cancelling the allotment as per Clause IV of the Allotment Letter.  In support of this, the Complainant in his sworn testimony, reiterated the same and produced the e-mail dt.24.07.2014, the Opposite Party by sending this mail to the Complainant clearly informed that as per their demand note due date to make the payment was 10^th of July and they have not received any payment till date then they are forced to adhere to the clause No.IV in the Allotment Letter.  But the Complainant except producing this e-mail has not placed any evidence to show that she has paid 20% of the amount as per the schedule payment.  On the other hand, except payment of Rs.2,00,000/- advance booking amount, the Complainant has not paid any amount, even though the Opposite Party are requested and demanded to make 20% of the cost of the building.  For that reason only the Opposite Party are not come forward to execute the agreement and it is the duty of the Complainant to pay 20% of the cost of the apartment before execution of the agreement, but it is not so for that reason the Opposite Party have righty send the mail they were going to adhere to the Clause No.IV of the Allotment Letter, thereby it is not proper to accept the contention taken by the Complainant.  For that reason, only the Opposite Party by sending mail dt.07.08.2014 informed the Complainant that the Agreement cannot be edited.  Since the Complainant has not adhere to the payment schedule and in spite of demanding in payment of 20% of the project the Complainant failed to pay the same only due to that reason the Opposite Party are not edited the Agreement infavour of the Complainant, thereby the Opposite Party arbitrarily, unreasonably and unfairly fails to edited the Agreement as contented by the Complainant.  Since the Complainant fails to adhere for the payment schedule in spite of demand and request made by the Opposite Party.  As per Clause-IV of the Allotment Letter, the Opposite Party have rightly terminated the allotment letter by issuing terminate letter on 23.09.2014 and cancel the allotment.  Thereby the cancellation of booking of the apartment by the Complainant is in accordance with procedure after adopting due procedure, thereby it does not amounts to unfair trade practice adopted by the Opposite Party or there is no any deficiency of service on the part of the Opposite Party. 
14. Further, even though in the 1^st Cost Breakup apartment super built up area is mentioned as 1190 but after sanctioning approved plan and as per the application submitted by the Complainant on 05.10.2013 it is clear that the Super Built-Up Area including correct area is 1175 at the total cost of Rs.42,95,000/- this application is submitted by the Complainant herself and based her signature, thereby, it is not proper to accept the contention of the Complainant that the Opposite Party have reduced the Super Built-Up Area from 1192 to 1175 arbitrarily.  Even this is also clear, as looking into the Allotment Notice dt.21.06.2014 in this letter, it clearly mentioned that the Super Built-Up Area is 1175 at the cost of Rs.42,95,000/- and as per the payment schedule attached to this Allotment Letter it is crystal clear that as per Execution of the Agreement 20% of the cost of the Apartment i.e., Rs.8,59,000/- shall be paid by the Complainant.  But the Complainant fails to adhere to this payment schedule in Clause-IV of the Allotment Letter it is clearly mentioned that the Allotment Letter requires to be necessarily valid followed by execution of the Agreement, by making the required payment, within 15 days of the Agreement being made available to you,  In spite of this, the Complainant has not paid 20% of the cost of the Apartment, for that reason they rightly cancel the booking, thereby there is no unfair trade practice adopted by the Opposite Party or there is any deficiency of service as alleged by the Complainant.  Hence, this point is held in the Negative.   

15. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed.  No costs.

Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 17^th day of June 2017)

         MEMBER                                            PRESIDENT
 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Ms.Giji Cherian, The Complainant has filed her affidavit.

 List of documents filed by the Complainant:

1. Copy of the Acknowledgement, Provisional Allotment Letter and Cost breaku-1
2. Copy of the E-Mail dt.10.12.2013
3. Copy of the E-Mail dt.06.02.2014
4. Copy of the Cost Breaskup-2,
5. Copy of the E-Mail dt.25.06.2014
6. Copy of the E-Mail dt.13.02.2014
7. Copy of the E-Mail dt.25.06.2014, 27.06.2014, 30.06.2014 and Cost Breakup-3,
8. Copy of the E-Mail dt.08.07.2014 and 21.07.2014
9. Copy of the E-Mail dt.24.07.2014
10. Copy of the E-Mail dt.07.08.2014 and 26.08.2014
11. Copy of the Cheque, cover letter and Courier receipts.
12. Copy of the Legal Notice and Postal Receipts.
13. Copy of the letter dt.23.09.2014.
14. Copy of the Letter dt.29.09.2014 and postal receipts and Acknowledgement. 

Witness examined on behalf of the Opposite Party:

1. Sri.V.Mallikarjunaiah, the Manager of the Opposite Party.

List of documents filed by the Opposite Party:

1. Flat Booking Form (Preferential Prospects League Scheme), dt.30.09.2013, submitted by the Complainant
2. Application, 05.10.2013 submitted by the Complainant and endorsed by the marketing executive of Opposite Party.
3. Allotment Notice, dt.21.06.2014, issued by the Opposite Party against which the Complainant sought for alteration
4. Demand Note for agreement, dt.01.07.2014, issued by the Opposite Party.

     MEMBER                                             PRESIDENT