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

DATED 22^nd DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed though 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. To make payment of Rs.47,63,790/- this is inclusive of the profit promised and the agreed interest at 16% p.a.,
2. To pay damages of Rs.5,00,000/- notice charges and costs in addition to the above amount in the interest of justice and equity.
3. And to pass such other order/s as deemed fit by this Hon’ble Forum in the circumstances and expediency of the case.

2.The brief facts of the complaint is as follows:

The complainant has entered into an agreement of sale on 24.10.2013 to purchase apartment No.B-0906 measuring 1141 sq. feet, by paying Rs.1,00,000/- and  this agreement of sale was also followed by agreement to build 25.02.2014 for consideration of Rs.39,18,259/- but the OP failed to carry the work.  Accordingly on 26.03.2016 a communication was issued to the complainant that the OP had initiated to sell the flat and agreed to remit the sale proceeds with interest at 16% p.a., by paying first installment of Rs.5,00,000/-.  As per the repayment agreement dated 24.06.2016 the OP has agreed to pay Rs.41,16,923/- with interest at 16% p.a., by OP remitting EMI amount of Rs.3,50,000/- in equated monthly installments.  But OP failed to do so.

3. It is further case of the complainant that agreement of sale dated 04.04.2018 came to be registered between the complainant and OP in respect of apartment No.207 measuring 808 sq feet.  Even though the size of the apartment No.207 was reduced, but OP neither completed the project nor paid the amount. Hence this complaint.
4. Despite service of notice, the OP failed to appear before this commission and OP has been placed exparte.
5. The complainant files affidavit evidence of Power of Attorney holder and relies on Ex.P1 to P11 documents.  Heard the arguments of the advocate for the complainant. We 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 OP?
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:    The allegations made in the complaint are being spoken by the complainant through affidavit evidence of her power of attorney holder and documentary evidence.  Even though OP failed to appear before us, it is the duty of this Commission to consider the case of the complainant on merits.

8. PW1 Pulkit Duggal is the power of attorney holder of the complainant and copy of the power of attorney is produced at Ex.P2.  Ex.P1 is the certificate u/s 65B of the Indian evidence Act.

9. It is proved from Ex.P3 Agreement of sale that complainant and OP as a power of attorney holder of M/s Trimurthy Association entered into agreement of sale on 24^th October 2013 for a consideration amount of Rs.16,78,300/- for having paid Rs.1,00,000/- on the same date in respect of apartment bearing No.B0906.  On 24^th October 2013 the complainant and OP have entered into agreement to build the apartment for consideration amount of Rs.15,97,400/-.  But OP failed to complete the project.  Accordingly the power of attorney holder of the complainant has sent Ex.P5 to the OP remanding the OP for compliance of terms of agreement.  After due persuasion on 24^th June 2016 the OP agreed to pay Rs.41,16,926/- with interest at 16% p.a., on reducing balance.  The calculation sheet about the payment of Rs.41,16,923/- with interest is enclosed.

11.     However both the parties entered into registered agreement of sale on 04.04.2016 in respect of apartment No.207 measuring 808 sq feet.  In view of the reduction of area of the apartment, the agreed consideration was Rs.32,50,000/- and OP agreed to repay the balance of Rs.6,68,258/-.  As per this agreement the actual consideration paid to the developer/OP was Rs.39,18,258/-.  But there is no clause in registered agreement to sale dated 04.04.2018 about payment of interest more particularly at 16% p.a.  By virtue of this agreement both the parties have given go bye to Ex.P6 agreement payment of Rs.41,16,923/- with interest at 16%.

12.     In view of the latest registered agreement of sale the OP was liable to refund Rs.39,18,258/- only.

13.     It is relevant to note that the banker of the OP issued tender-cum-auction sale notice under SARFAESI Act 2002 in respect of Flat No.207, 305, 905, 906 and 103 fixing date of tender cum auction sale 28.10.2020.  The complainant also issued Ex P9 legal notice to the OP and OP issued Ex.P10 reply dated 15.10.2020 asserting that except execution of registered sale deed nothing was pending with the OP.   But after issuing the reply the banker of OP City Union Bank Limited, has issued tender-cum-auction sale notice fixing the date of action as 28.10.2020 in respect of apartment No.906 and 207.  In view of this auction on the part of banker of OP, the OP was not in a position to execute the sale deed.  The OP is not right in saying that except execution of registered sale deed nothing is pending with OP.  How the OP will execute registered sale deed in view of pendency of proceedings under SARFAESI act.  Therefore the auction of the OP amounts to deficiency of service.

14.     Even though the complainant claims refund of Rs.47,63,790/- inclusive of interest at 16% p.a., Rs.5,00,000/- as damages and cost of litigation.  In view of registered agreement of sale dated 04.04.2018 the OP is liable to refund Rs.39,18,258/-.  This total amount paid in nine installments mentioned in para 3(2) of Ex.P7, agreement of sale dated 04.04.2018.  Even though complainant claims interest at 16% p.a., and compensation of Rs.5,00,000/-. In view of the judgement of 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. The complainant is entitled to 9% interest per annum from the date of respective payment till realization.  The cost of litigation requires to be quantified at Rs.20,000/-. Accordingly we answer point NO.1 and 2 partly in affirmative.

15.     POINT NO.3: In view of the discussion referred above, the OP shall refund Rs.39,18,258/- with interest at 9% p.a. from the date of respective payments till realization with cost of Rs.20,000/-.  This interest is awarded in lieu of compensation. Therefore, the complainant is not entitled to damages/compensation separately.  Complainant requires to be allowed in part.  In the result, 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.39,18,258/- with interest at 9% p.a., from the date of respective payment till realization and litigation cost of Rs.20,000/- to the complainant.
3. The OP shall comply this order within 60 days from the date of this order failing which the OP shall pay interest at 12% pa., 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 22^nd day of July, 2022)

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

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