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

DATED 30^th DAY OF MARCH 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This joint complaint has been filed by husband and wife under Section 35 of C.P.Act, 2019 (herein under referred as an Act) for the following reliefs against the OP:-

(a) Direct the OP to return the amount of Rs.4,00,000/- along with interest at 14% from 25.08.2019 to till the date of realization.

(b) Direct the OP to pay the cost of this proceedings/expenses of the litigation.

(c) Grant any other relief.

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

The complainants having visited the office of OP have paid Rs.1,00,000/- on 25.08.2019 and Rs.3,00,000/- dated 03.09.2019 towards advance to purchase the flat in wing No.46. But, OP failed to give parking lot in wing No.46 and in spite of E-mail dated 22.09.2019, the OP failed to furnish BBMP approved plan.  But, OP issued a reply to verify portal.

3. Once again on 28.09.2019, the complainants had sent E-mail about non-cooperation of the OP. Despite repeated requests, the OP failed to furnish required information.  Therefore, the complainants by issuing E-mail dated 08.11.2019 cancelled the booking and called upon the OP to refund the amount.

4. It is further case of the complainants that despite repeated E-mails dated 18.11.2019, 03.07.2020 and legal notice dated 14.08.2020, the OP failed to refund Rs.4,00,000/-.  The non-refund of amount without any excuse amounts to deficiency of service.  Therefore, OP is liable to pay interest at 14% p.a. from date of payment till realization.  Hence, this complaint.

5. After receipt of notice, the OP appears and files version.  The OP contends that the complaint is false, frivolous, vexatious and not maintainable for want of proper and necessary parties.  M/s Sobha Ltd. is a necessary party and complaint filed against Mr.Ravi P.N.C. Menon is not maintainable.  The complainants have deliberately filed a complaint against Mr.Ravi P.N.C. Menon knowing that there is no privity of contract between complainants and Ravi P.N.C. Menon.  There are no allegations in the complaint against Mr.Ravi P.N.C. Menon.  The complainants are not the consumers and present complaint against OP is not maintainable.

6. The complainants after seeing the website of M/s Sobha Ltd., agreed to purchase Unit B2-46054 of Wing No.46 at Sobha Dream Acres Tropical Greens measuring 1205.47 sq.ft. after obtaining discount of Rs.208/- per sq.ft. i.e. Rs.2,50,738/-.

7. The Wing No.46 of project registered under RERA.  The complainants are not right to unilaterally cancelled the booking.  The complainants have not entered into agreement of sale within stipulated time of 30 days.  The complainants have not furnished NOC to get the refund of booking amount.  The complainants try to mislead this Commission raising the issue of not proper parking.  The OP having registered under the provision of RERA Act and obtained necessary occupancy certificate.  Therefore, complainants cannot be unilaterally cancelled the booking and ask for refund.  In fact, the complainants had approached adjudication authority under RERA Act and in view of order dated 28.05.2020 adjudication authority which attained the finality, the present complaint is not tenable. There is no deficiency of service on the part of the OP.  Therefore, OP is not liable to pay any interest.

8. The complainants have filed partial booking amount of Rs.4,00,000/- and this payment is treated as earnest money. The OP requests to dismiss the complaint.

9. The complainant No.2 has filed his affidavit evidence and complainants rely on 16 documents.  The affidavit evidence of authorized signatory of OP has been filed and OP relies on 8 documents.  Heard the arguments of both the sides and we perused the written arguments of advocate for OP with citations.

10.    The following points arise for our consideration:-

1. Whether the complainants prove deficiency of service on the part of OP?
2. Whether the complainants are entitled to relief mentioned in the complaint?
3. What order?

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

       Point No.1:  Partly in the affirmative.

      Point No.2:- Partly in the affirmative.

      Point No.3: As per final orders

REASONS

12. Point Nos.1 and 2:  Both the parties have relied on affidavit evidence and documentary evidence in support of their respective contentions.  Before considering the controversy between the parties, it is relevant to refer their admitted facts.  Initially, the complaint came to be filed against Chairman, Sri Ravi PNC Menon Sobha Ltd who has filed the version stating that there is no privity of contract between complainants and Sri PNC Menon.  The OP has also taken the contention that Sobha Ltd., is a proper and necessary party.  Accordingly, the complainant got deleted name of Sri PNC Menon and impleaded Sobha Ltd., registered and Corporate office represented by its Chairman.  In view of this amendment, the first contention of the OP about dismissal of complaint for non-adding of proper and necessary parties.
13. The Op has also raised objections in the written arguments that the complainant No.2 is not authorized by complainant No.1 to file this complaint.  Therefore, this complaint is not maintainable.
14. Admittedly, the complainant Nos.1 and 2 are wife and husband who have signed the complaint.  It is true that the affidavit evidence of complainant No.2 is filed without power of attorney of complainant No.1 in favour of complainant No.2.  OP has produced the booking form under Ex.R.2, wherein names of both the complainants are shown.  It is relevant to note that the complainant No.2 alone signed the booking form.  Under such circumstances, the complainant No.2 being a beneficiary of the proposed flat can maintain the complaint.  Therefore, there is no substance in the contention of the OP that the complaint without power of attorney of complainant No.1 in favour of complainant No.2 is not maintainable, words no water.  Accordingly, this contention is also rejected.
15. The payment of Rs.4,00,000/- is admitted by the OP.  The complainants have produced two receipts dated 03.09.2019 about payment of Rs.1,00,000/- and Rs.3,00,000/-.  These two receipts disclose the name of both the complainants.  It can be easily held that the complainants have paid in all Rs.4,00,000/- to the OP in respect of Unit B2-46054 in Sobha Ltd., Tropical Greens Wing in 43,44,45 and 46.  This unit is in Wing No.46.  The intimation letter issued by the OP dated 31.08.2019 indicates that booking of the unit will be intimated and release of booking amount (10% of the basic sale value + GST). It is pertinent to note that at any point of time, the agreement of sell is executed between the complainants and OP.  It is also interested to note that neither the complainants nor OP have discloses what is the total consideration of sale payable by the complainants to the OP, even though, complainant No.2 and authorized signatory of OP have filed affidavit evidence But, for the reasons best known to them they have not disclosed what is the total consideration payable or actual consideration after discount.  In the absence of such pleading and silence of affidavit evidence, we carefully perused the Ex.R.2 booking form.  The last page of this booking form meant for office use only indicates that basic value i.e. current price 5700 per sq.ft. and after deduction offer price was Rs.5,492/- per sq.ft.  If these rates are taken into consideration, admittedly, the flat agreed to be sold to the complainant measures 1205.417 sq.ft. and these rates are applied to the measurement of the flat, the total value would Rs.68,71,171/- and offer price would Rs.66,20441/-.  This price is taken into consideration, in order to appreciate the clause 8 and 9 of Ex.R.2 booking form. The conditions No.8 and 9 of this booking form read thus:-

8. If the applicant cancels the unit after booking the unit and signing the booking form prior to executing the (ATS), then the partial/full booking amount will be refunded after deducting 1% of the agreement value of the unit as cancellation charges and administrative cost, within 60 days after the re-sale of the unit.

9. On payment of upto 10% of the cost of unit, the applicant must execute the agreement to sell (ATS0 for the unit booked.  If the application fall to execute the agreement within a period of 30 days from the date of the receipt of the agreement by any of the applicant(s) then BL will serve a notice to the applicant(s) for rectifying the default and if not rectified within 30 days of receipt of such notice, the allotment letter for the unit will be treated as cancelled and the amount paid by the applicants will be refunded, after deducting 1% of the agreement value of the unit as cancellation charges and administrative cost within 60 days after the re-sale of the unit.

16. According to condition No.8, in case the complainants cancel the unit after booking the unit and signing the booking form prior to executing the agreement of sell.  The OP is entitled to deduct 1% of the agreement value of the unit and refund the balance.  Similarly, the condition No.9 also indicates that in case of cancellation of booking, the OP is entitled to deduct 1% of agreement value.
17. As indicated above, the agreement value was Rs.66,20,441/-.  At any point of time, the OP never exercised its right to retain 1% of 66,20,441/- i.e. Rs.66,204/-.  It means the parties to the agreement i.e. complainants and OP were not series about compliance of terms and conditions.
18. It is also relevant to note that as could be seen from Ex.R.5 and Ex.R.6, the OP prepared account payee cheque in favour of complainant No.1 for Rs.3,90,560/- on 01.02.2021 and 01.07.2021 after deducting Rs.9,440/- towards booking charges for credit card swiping forfeited as indicated in Ex.R.7.  The terms and conditions attached to Ex.R.2 do not empower the OP to deduct booking charges for credit card swiping forfeited.  Admittedly, the payment of Rs.4,00,000/- was made on 03.09.2019.  The OP has shown Rs.9,440/- towards booking charges for credit card swiping forfeited on 29.08.2020 and OP tried to make payment only on 01.07.2021.  The OP has not explained its conduct about non-tendering of the amount even after deducting the balance immediately after filing the complaint and appearance.  The OP has not made any attempt to deposit Rs.3,90,560/- in this office.  This conduct of the OP clearly indicates that OP was not serious to refund the earnest money.  IN the absence of contractual obligation, the OP was not right to deduct any amount towards banking charges.
19. The counsel for the OP also produced the order of authorized authority i.e. RERA.  It is true that the complainant had approached the authorized authority under RERA Act for their grievance.  The complaint came to be withdrawn vide order dated 28.05.2020 stating that the name of the OP i.e. Devendra Dundlodia (Sobha Limited Sales) was wrongly mentioned and permission was obtained for filing fresh complaint.  It means the complaint of OP at CMP/UR/200205/0005329 was not decided on merits on 28.05.2020 in favour of the present OP i.e. Sobha Ltd.,  Therefore, this order does not help the OP to support the plea of resjudicata.
20. It is also relevant to note Section 100 of C.P.Act, 2019 comes to the help of complainant that complainants can invoke the provision of C.P.Act, 2019 or provision of RERA Act. There is no prohibition of filing complaint before this Commission even though the separate mechanism is provided under the RERA Act.  Therefore, withdrawal of complaint before Karnataka Real Estate Regulatory Authority, Bengaluru vide order dated 28.05.2020 does not help the OP to out this complaint on principal of resjudicata
21. Rest of the documents produced by the complainant and OP are not in dispute.  Before filing this complaint, the complainant by issuing legal notice called upon the OP to refund Rs.4,00,000/- with interest and compensation.
22. The advocate for the OP vehemently argues that the complainants failed to prove the plead of deficiency of service on the part of OP and complainants are not entitled to any of the reliefs.  He also argues that the complainants have failed to prove the material documents and based their claim under wrong assumption.
23. It is true that the complainants have not made any whisper about the order of authorized authority under RERA Act dated 28.05.2020.  But, later on the complainants have produced the copy of this order with memo and OP has also produced this order.  The non-reference of the order either in the complaint or in the affidavit evidence, does not go to route of the case set up by the complainants.  On this ground alone, complaint cannot thrown out for non-disclosure of order of RARA.  The complainants have not gained anything by suppressing the order of authorized authority under RERA Act. In view of production of the order of authorized authority under RERA Act, the contention about suppression of material documents is fall to the ground.
24. The counsel for the OP places the following three decisions in support of his arguments:-

(1)2021 SCC online SC 879 in the matter between SGS India Ltd., Vs. Dolphin International Ltd.,

2. Order of Hon’ble State Consumer Disputes Redressal Commission, Andrapradesh in the matter between Srinivas Vs. Mantri Developers Pvt. Ltd.,
3. Lastly, the decision of Hon’ble Supreme Court of India in the mater between Bhaskar Laxman Jadhav and others Vs. Karamveer Kakasaheb Wagh Education Society and others in Special Leave to Appeal No.30469/2009 dated 11.12.2012.

25. We carefully perused the facts and ratio involved in all the decisions.  In the first decision, the sample collected at the time of dispatch of consignment were not produced before the District Forum.  Under such circumstances, an adverse inference was drawn against the OP.  Even though, the complainants in this case neither referred not produced the order of authority under RERA Act about withdrawal of complaint at the time of filing this complaint.  But, both parties have brought the order of authorized authority under RERA Act before this Commission.  In view of production of this order and after consideration of this order as indicated in the preceding paragraph, 1^st decision is not applicable to the present case on hand. Moreover, complainant has produced best evidence for getting refund of advance amount of Rs.4,00,000/-.  complainant
26. In the 2^nd decision, the OPs were willing to refund Rs.2,26,491 against Rs.3,26,491/-.  But, attempt made by the OP to refund Rs.3,90,560/- by means of cheque on 01.07.2021 after deducting bank charges of Rs.9,440/- is only after thought and it is not supported by any terms and conditions of booking form.  Therefore, 2^nd decision is also not applicable to the present case on hand.
27. In the last decision, the petitioners have not clearly disclose the facts and circumstances which order dated 02.05.2003 was passed or that it has attained finality.  Once again, we have to refer the order of the authority under RERA Act dated 28.05.2020.  It is true that the present complainant No.2 had filed a complaint against Devendra Dundlodia for certain reliefs.  But, complainant No.2 got withdrawn the said complaint stating that the complaint was filed against wrong person.  The order of the authority under RERA Act was not on the merits.  Therefore, withdrawal of complaint before RERA filed against wrong person does not help the OP to get the benefit of 3^rd decision.  Therefore, this contention of the OP that suppressing of order of RERA falls the ground. 
28. The OP having received Rs.4,00,000/- and even after receipt of cancellation of booking under E-mail failed to refund the entire amount.  The non-refund of entire advance amount of Rs.4,00,000/- amounts to deficiency of service on the part of OP.  Therefore, the complainants are entitled to refund Rs.4,00,000/- from the OP.
29. The complainants claims 14% interest p.a. from 25.08.2019 till the date of realization and cost of this litigation.  There is no privity of contract with regard to payment of interest at 14% p.a. But, the Hon’ble National Commission and Hon’ble Supreme Court of India time and again recently awarded interest at 9% p.a. from the date of payment till realization.  The amount of Rs.4,00,000/- was lying with the OP since 03.09. vide two receipts and OP has enjoyed the benefit of this payment.  Under such circumstances, it is proper to award 9% interest p.a. from 03.09.2019 on Rs.4,00,000/- till realization. 
30. The complainants have availed service of an advocate and even though complainants have not paid any court fee as consideration paid was less than Rs.5,00,000/-. Therefore, it is proper to award cost of litigation Rs.10,000/-.
31. Pont No.3:- In view of the discussion referred above and after assessing the entire records, we are of the opinion that the OP is liable to refund Rs.4,00,000/- to the complainants with interest at 9% p.a. from 03.09.2019 till realization and also liable to pay cost of Rs.10,000/- to the complainants. It is necessary to impose time limit on the OP to comply this order. We proceed to pass the following

O R D E R

1. The complaint is allowed in part.
2. The OP shall refund Rs.4,00,000/- with interest at 9% p.a. from 03.09.2019 till realization with cost of litigation Rs.10,000/- to the complainants.
3. The OP shall comply this order within 45 days from this date.   
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 30^th March, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OP which are as follows:-