Date of filing:  05.07.2021

                                                      Date of Disposal: 29.03.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 29^th DAY OF MARCH, 2023

CONSUMER COMPLAINT NO. 311/2021

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Aged About 38 years,

S/o. late N.M.Girishappa,

(customer ID No.200021527)

Door No.40/12, 1^st Cross,

Vittal Nagar, Chamarajapet,

Rep by Sri.Rameshchandra, Advocate

1) Tata Value Homes Limited,

(Formerly known as Smart Value

Homes Limited)

No.25, Ground Floor, A-Wing,

Corniche AL Lathef,

Cunningham Road,

Rep. by Managing Director.

(Represented by Sri. Sanjay Nair, Advocate)

2) Smart Value Homes (Peenya

Project) Private Limited,

Trade World, ‘B’ Wing,

Senapathi Bapat Marg, Lower Parel (W)

Mumbai-400013, Rep. by Director.

(Represented by Sri. Sanjay Nair, Advocate)

//JUDGEMENT//

BY SRI. SHIVARAMA K, PRESIDENT

01.    The complainant has filed this complaint under Section-35 of Consumer Protection Act, 2019 seeking for a direction to the opposite parties to pay a sum of Rs.65,30,264/- with interest at the rate of 21% per annum from the date of petition and such other relief as this Commission deems fit in the circumstances of the case. 

02.    It is not in dispute that, opposite party No.1 had purchased property in Sy. No.2/3, 2/4, 3/2, 3/3 and 472 total measuring 1112307 Sq. Ft. through a registered sale deed dated: 14.02.2011.  Further it is not in dispute that, opposite party No.2 is the developer.  Further it is not in dispute that, opposite party No.1 & 2 had entered in to an agreement for sale dated: 26.05.2014 agreeing to sell a flat to be constructed in No.11141, No.2, New Haven 14^th Floor developed on the property in favour of the complainant.  Further it is not in dispute that, construction agreement came to be executed on 26.05.2014 in between opposite party No.1 & 2 and the complainant.  Further it is not in dispute that, a tripartite agreement was executed in between opposite party No.2 State Bank Of India and the complainant.  Further it is not in dispute that, opposite party No.2 had issued a cancellation letter dated: 22.12.2017 cancelling the above said apartment allotted in favour of the complainant.  Further it is not in dispute that, opposite party No.1 had issued an advertisement in Deccan Herald English daily newspaper and Prajavaani Kannada daily newspaper on November-2014 with regard to the proposed construction and appreciation in the value of the money invested.

03.    It is the further case of the complainant that, by seeing the advertisement in the newspaper the complainant was mesmerized to invest his money in the project of opposite party No.2.  Further the agreed period for completion of the project was up to February-2016 and it was completed during February-2020.  Further the complainant had borrowed the loan from State Bank of India of Rs.14,00,000/- on interest at the rate of 8.30% per annum and paid to the opposite party No.2 and had arranged the balance amount a total sum of Rs.37,65,000/- was paid gradually.  Further despite of non-completion of the project opposite party had sent a notice that, if complainant fails to pay the balance amount of Rs.6,75,000/- the opposite party would deduct a sum of Rs.11,99,455/- towards cancellation charges, GST on cancellation charges, delayed interest, etc.,.  Further without intimation to the complainant opposite party had allotted selected apartment at 14^th floor.  Hence in different instalments the complainant had paid a total sum of Rs.39,66,049/- and if the prevailing rate of interest had been calculated it would come to Rs.55,55,526/- as on February-2020.  Further if the complainant had invested the said amount in the form of Gold as on February-2020 it would have fetched a sum of Rs.65,30,264/-.  Further the flat value is less than the appreciated value assured by the opposite party.  Further the complainant got issued a legal notice dated: 23.06.2020 calling upon the opposite parties to show the appreciated value of the flat and the real value of the flat as on 23.06.2020.  Hence the opposite parties have practised Unfair Trade Practice to receive money from the complainant.  Hence the complaint came to be filed.

04.    It is the further case of the opposite parties that, the complainant had filed an application for provisional allotment of the residential apartment on 11.03.2014.  Accordingly on 18.03.2014 opposite parties have issued allotment letter to the complainant confirming the aforesaid residential apartment.  Further upon completion of construction of the scheme on the schedule property the partial occupancy certificate in support of schedule property was received by opposite party on 16.06.2017.  Further the sale consideration of the schedule apartment as agreed in between the parties was of Rs.33,15,646/- excluding taxes, deposits and other charges as stated in the statement of account vide EX.R.7.  Further there was outstanding balance payable by the complainant was of Rs.2,52,256/-.  Further even though an invoice was raised for total amount of Rs.5,67,020/- on 13.01.2016 and on 24.03.2017 in respect of time linked payment scheme, the complainant did not make payment of the same.  Since the complainant has failed to make payment of the outstanding balance even after repeated reminders opposite party was constrained to issue cancellation letter dated: 22.12.2017 to make balance payment of sale consideration failing which cancellation would be deemed to be final.  Thereafter on 16.01.2018 the complainant had made further payment and to maintain cordial relationship with the complainant opposite party had accepted the same.  Further the complainant had withdrawn the cancellation and the flat was ready to be handed-over to the complainant.  Further opposite parties have paid delay compensation to the complainant and it was adjusted in its statement of accounts.  Further the complainant has completely neglected and ignored the payment of dues.  Hence the opposite party had sustained huge financial loss and there is no deficiency of service on the part of opposite party No.1 & 2 and sought to dismiss the complaint.

05.    To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P10 documents.   The authorized representative of opposite party No.1 & 2 (RW.1) has filed affidavit in the form of his evidence in chief and got marked EX.R1 to R8 documents.

06.    The counsel for complainant has filed written arguments.

07.    The points that would arise for consideration are as under:-

  (1) Whether opposite parties have practiced Unfair Trade Practise?

  (2) Whether there is deficiency in service on the part of the opposite parties?

  (3) Whether the complainant is entitle for the 

       relief sought?

       (4) What order?

08.    Our findings on the aforesaid points are as follows:-

Point No.1 & 2:  Are in affirmative

Point No.3 :  Partly in affirmative

Point No.4 :  As per the final order for the following:

REASONS

09.    POINT NO.1 & 2:- In order to avoid repetition of facts both the points are taken together for common discussion.  The complainant (PW1) and opposite party No.1 & 2 (RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  According to PW.1 initially he has paid booking amount of Rs.20,000/- on 26.03.2014 and has paid amount in nine instalments and the total comes to Rs.39,66,049/-. 

10.    Further on perusal of EX.P.9, EX.P.9(a), EX.P.10, EX.P.10(a) paper publication made in Prajavanni Kannada Daily newspaper on 18.02.2014, Deccan Herald English daily newspaper on 21.02.2014, Deccan Herald English daily newspaper dated: 17.02.2014, it appears that, opposite party No.1 had given an advertisement stating that, “National Home Buying Day” was from 21^st February to 24^th February and TATA Value Homes (OP No.1) will be better than gold stock market or Fixed Deposit and the appreciation of apartment in New Haven of Tumkur Road valued would be Rs.71,000 to 12.8 lakhs.  Further in the Deccan Herald dated: 17.02.2014 advertisement was given that, it would be best appreciation opportunity at TATA Value Homes.  According to PW.1 he was been mesmerized with the said advertisement and had made investment.

11.    It is the contention of opposite party that, there was a delay in payment on the part of the complainant.  It is the contention of learned counsel for the complainant that, the construction should have been completed on or before 31.12.2015.  In support of the contention counsel relies EX.P.3 construction agreement.  There is no dispute in between the parties with regard to the terms and conditions incorporated in EX.P.3.  On perusal of EX.P.3 it appears that, the construction agreement came to be executed on 26.04.2014.  In Page-13 of EX.P.3 it is stated that, “the developer shall endeavour to give possession of the residential apartment to the Third Party (complainant) on or before 31.12.2015, but subject to force majeure circumstances and reasons beyond the control of the Second Party”.  Admittedly, as asserted by the opposite parties in their version filed in Para-13 that, upon completion of the construction of the scheme on the schedule property, the partial Occupancy Certificate in respect of schedule property was received by opposite party on 16.06.2017.  EX.R.8 is the Offer of Possession letter dated: 27.06.2017 issued by opposite party No.2 in which it is stated that, opposite party No.2 has received the Occupation Certificate dated: 16.06.2017 and it was requested to pay the balance payment on or before 25.07.2017 and Post completion of the formalities, opposite parties will invite the complainant to visit the apartment at a mutually convenient date and time.  EX.R.8 itself indicates that, on 27.06.2017 itself the apartment would have been completed.  It is asserted by the opposite parties in their version filed that, opposite parties have given delay compensation to the complainant and have adjusted the same in its statement of accounts.  It is not at all pointed out by the learned counsel for opposite party No.1 & 2 with regard to any of the conditions incorporated either in EX.P.2 agreement for sale or EX.P.3 construction agreement that, opposite parties have an option to extend the time of completion of the scheme by paying compensation to the complainant. 

12.    Further it is the contention of the learned counsel for opposite party No.1 & 2 that, because of non-payment of outstanding dues by the complainant also the scheme has not been completed.  No such terms and conditions has been pointed out by the learned counsel that, opposite parties would extend time of completion because of non-payment of outstanding dues by the complainant. 

13.    Further it is also contended by the learned counsel for opposite parties that, because of COVID-19 pandemic disease and scarcity of labour the construction has not been completed on time.  In this regard, counsel also relies the conditions enacted in the construction agreement vide EX.P.3 that, because of force majeure circumstances and for unforeseen event, time could be extended.  We feel since as per the agreement the construction shall be completed on or before 31.12.2015, there is no merit in the said contention.

14.    It is the further contention of the learned counsel for opposite parties that, they have given delay compensation to the complainant and have adjusted the same in its statement of accounts.  Hence the complainant has condoned the delay.  We feel since the complainant did not admit that, the delay has been condoned, and no provision as such has been pointed by the learned counsel for opposite parties in the construction agreement or sale agreement, there is no merit in the contention of the learned counsel for opposite party No.1 & 2 in that aspect. 

15.    It is further contended by the learned counsel for opposite party that, Clause-5 of Construction Agreement and Agreement for sale indicates that, any default by the complainant in payment of instalment on the due dates shall be construed as a breach of contract and in the event of such breach opposite party No.2 is entitled to charge interest on the defaulted instalment at the rate of 18% per annum from the date of default and opposite party No.2 shall be entitled to cancel the agreement.  We feel since the opposite parties did not complete the project within the time assured, this Clause is not applicable to the defence of the opposite parties.

16.    Hence it appears that, the activity of opposite parties was for the purpose of promoting the sale of the flats and opposite parties had falsely represented that, the service were of a particular standard thereby it attracts Unfair Trade Practice within the meaning of Section 2(47) of the Consumer Protection Act, 2019.  Further since the opposite parties did not complete the construction within the time assured, it amounts to deficiency of service within the meaning of Section 2(11) of Consumer Protection Act, 2019.  Hence we answer point No.1 & 2 in affirmative.

17.    POINT NO.3:-     The complainant claimed a sum of Rs.65,30,264/- with interest at the rate of 21% per annum.  The complainant has calculated the said amount on the basis of Gold value if had he been invested the money paid to the opposite parties in the form of Gold it would have been fetched at Rs.65,35,264/- as on February-2020.  We feel the money invested to buy a flat by the complainant cannot be compared with the price of the Gold as asserted.  Further the complainant has also stated that, if had he been kept the money in the form of Fixed Deposit the total amount paid in instalments would have been arrived at Rs.55,55,526/-.  The complainant has calculated interest at the rate of 8.50% per annum for some amount paid in instalments and 06.25% per annum for some amount paid in other instalments.  We feel the interest taken in to consideration by the complainant is not an exorbitant one.  Therefore the complainant is entitle for the said amount of Rs.55,55,526/- as on February-2020.  The opposite parties did not dispute the calculation shown in the complaint by the complainant.  The total amount paid in instalments as per the assertion made in the complaint comes to Rs.39,66,049/- as on 16.01.2018.  To prove the payment made apart from the evidence in the form of affidavit, the complainant has produced EX.P.1 & P.6 statement of account of his Bank account.  Further the complainant has also produced the customer account details issued by the opposite party with regard to the payment received from the complainant as on 14.02.2020.  Further opposite party has also produced the customer account details relates to the complainant as on 24.08.2021 vide EX.R.7.  The above said documents referred indicate the amount paid by the complainant as referred in the complaint.  The interest claimed by the complainant at the rate of 21% per annum is highly an exorbitant one.  We feel the complainant is entitle for the interest at the rate of 9% per annum on Rs.39,66,049/- from March-2020 till realization.  The complainant had invested the money to have a dream house of his own, but the same has not been materialized by the opposite parties and had used the money of the complainant.  Hence the complainant is entitle for a sum of Rs.30,000/- towards mental agony sustained.  Further the activity of the opposite parties made the complainant to get issued a legal notice to the opposite parties as per EX.P.7.  Hence the complainant is entitle for a sum of Rs.10,000/- towards litigation cost.  Accordingly we answer this point partly in affirmative.

18.    POINT NO.4:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party No.1 & 2 are jointly and severally liable to pay a sum of Rs.55,55,526/- to the complainant along with interest at the rate of 9% per annum on Rs.39,66,049/- from 01.03.2020 till realization and a sum of Rs.30,000/- towards mental agony sustained and a sum of Rs.10,000/- towards litigation cost.

The opposite party No.1 & 2 shall comply the order within 30 days.   In case, they fail to comply the order within the said period, the above said amount of Rs.40,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 29^th Day of March, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Sri. B.G. Naveen, the complainant (PW-1) has filed his affidavit in the form of his evidence in chief.

Documents marked for the complainant side:

1. Copy of statement of account – EX.P.1
2. Copy of sale agreement dt.26.05.2014 & Construction agreement t.26.05.2014 - EX.P.2 & P.3
3. Copy of Tripartite agreement dt.13.07.2015 – EX.P.4
4. Copy of cancellation letter dt.22.12.2017-EX.P.5
5. Copy of loan statement of account – EX.P.6
6. Copy of legal notice dt.23.06.2020 – EX.P.7
7. Original postal acknowledgement – EX.P.7(a)
8. Original two postal acknowledgments-EX.P.7(b) & (c)
9. Application u/s 65(B) of Indian Evidence Act with affidavit –EX.P.8
10. Computer downloaded Prajavani Kannada daily newspaper dt.18.02.2014 – EX.P.9 and the relevant portion is marked as EX.P.9(A)
11. Computer downloaded Deccan Herald English Daily newspaper dt.17.02.2014-EX.P.10 and the relevant portion is marked as Ex.P.10(A).

Witness examined for the opposite party No.1 & 2 side:    

Sri. Paul Lukachen, Service Manager of opposite party (RW.1) has filed affidavit in the form of his evidence in chief. 

Documents marked for the Opposite Party No.1 & 2 side:

1. Copy of application form – EX.R.1.

2. Copy of allotment letter dt.18.03.2014-EX.R.2

3. Copy of sale & construction agreement dt.26.05.2014-EX.R.3.

4. Copy of Occupancy Certificate dt.16.06.2017-EX.R.4

5. Copy of two demand notes – EX.R.5

6. Copy of cancellation letter dt.22.12.2016-EX.R.6

7. Copy of statement of account – EX.R.7.

8. Copy of possession offer letter dt.27.06.2017 & its enclosure – EX.R.8.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•