Mrs. Kanchana Palmand,

W/o. Sri. Sharath Vasan D.S,

R/at: No.17, 3rd Floor, Anathavana,

3rd Cross, 10th Main,

Gururaja Layout, BSK 3rd Stage,

BANGALORE. …. Complainant.



-V/s-



The Director,

The Global Associates,

H.M. Geneva House,

No.14, Cunningham Road,

BANGALORE - 560 052. …. Opposite Party.



ORDER

This complaint is for a direction to the opposite party to refund the advance sale consideration amount of Rs.12,47,169/- with interest at the rate of 24% per annum, to pay Rs.51,110/- the penalty imposed by the Bank on the complainant as prepayment charges and to pay damages of Rs.5,00,000/- towards mental agony and depression. The case of the complainant is as under:-

On 28.05.2006 the complainant entered in to a sale agreement and construction agreement with opposite party for purchase of a two bed room flat bearing No.507 on the fifth floor of the Olive Apartment Block in the residential building known as H.M. World City in the second phase of development to be constructed by the opposite party.

The total sale consideration for the flat was fixed as Rs.35,01,349/-. On the date of sale agreements he paid advance of Rs.2,69,788/-. Including the subsequent payments she has paid a total sum of Rs.12,47,169/- towards consideration for the flat proposed to be purchased. In the sale agreement and the construction agreement it has been clearly mentioned that the fully finished schedule flat shall be delivered to the complainant by the end of September-2007. But for the reasons stated in the letter dated: 18.07.2007 the date for delivery of the schedule flat was postponed to 31.12.2008 causing delay of 15 months. Understanding the factuals mentioned in this letter the complainant extended her cooperation and agreed to wait till 31.12.2008. She has raised a home loan with the Citibank for purchase of the flat from the opposite party and the said bank was issuing the cheques directly to the opposite party as and when the installments fall due.

But all of a sudden the Bank foreclosed the loan and on enquiry the complainant was informed that, during inspection of the site to check the development of the project the Bank noticed that, still the first phase of the construction was yet to be completed and the second phase of the construction where the complainant had booked the flat was not started though the due date for delivery of the flat was 31.12.2008. Considering the above facts the Bank foreclosed the home loan account and imposed foreclosure amount of Rs.51,110/-. In view of the premature foreclosure of the home loan account the complainant had to pay a sum of Rs.8,27,093/- in September-2008 towards the closure of the loan. Since the loan was raised by mortgaging the flat all the originals pertaining to the flat are with the Bank. The opposite party is also in the habit of forcing the purchasers to compromise for an alternative flat under the threat of forfeiting the entire advance amount if the agreement is cancelled.

Accordingly the opposite party blackmailed the complainant and obtained her signature for an alternative flat when she went to enquiry about the status of the flat after the foreclosure of the loan account. In the above circumstances since the second phase of the construction was not yet commenced she issued a legal notice dated: 02.12.2008 demanding the opposite party to deliver the flat on or before 31.12.2008 and also seeking an explanation for not commencing construction of the second phase in which she had booked a flat. But the opposite party has not chosen to give reply to the notice. On account of sudden foreclosure of the loan account the complainant suffered mental agony, had to under go lot of mental torture and therefore she is taking treatment for mental depression.

The construction and delivery of the flat may not be possible for another five years and it clearly goes to show that the opposite party has not made any efforts to complete the apartment. Therefore the opposite party is liable to repay the sum of Rs.12,47,169/- paid by her so also Rs.51,110-86 the amount imposed by the Bank as penalty together with interest at the rate of 24% per annum and also to pay damages of Rs.5,00,000/-. Hence the complaint.



2. In the version the contention of the opposite party is as under:-

The complaint is misconceived. The complainant has suppressed material facts in order to make wrongful gain. The complainant entered in to the sale agreement and construction agreement both dated: 20.06.2006 and as per the agreement the opposite party was under an obligation to deliver the apartment described in the schedule ‘C’ and ‘B’ of the agreements to the complainant. The complainant had booked the apartment bearing No.507 on the fifth floor of the Olive Block in the residential building known as H.M. Word City. The complainant was nominated to purchase 0.059% undivided share in the schedule property for a total sale consideration of Rs.10,06,778/- to enable her to construct apartment on the fifth floor of the Olive Block. As per the construction agreement the complainant was to pay Rs.24,94,572/- towards construction of the apartment.

Thus the complainant had agreed to pay a total sum of Rs.35,01,350/- and she has paid Rs.12,47,169/- and is due Rs.22,54,181/-. After obtaining the documents pertaining to the project the complainant started making various queries. All the queries raised by the complainant were answered. However on one pretext or the other the complainant wanted to cancel the booking of the flat even after the opposite party accepted for the alternative flat in Mint 504. It appears that the complainant is not in a position to arrange the balance requisite funds and therefore has resorted to take false plea to the effect that the opposite party has not started construction of the second phase where she had booked the lat and the Citibank foreclosed the home loan account. There were various factors which were beyond the control of the opposite party and which led to the delay in the second phase of the project.

All the reasons were explained to the complainant and there is no willful neglect or default on the part of the opposite party. With a view to mitigate the hardship if any that would be caused to the complainant, they offered a flat which is complete for occupation in the first phase. After making various verifications the complainant agreed to shift to first phase and to purchase the flat bearing No.504 in the Mint Block from the existing flat in the second phase. To that effect she also addressed a letter dated: 24.05.2008. The said letter was taken only as confirmation as by that time the complainant had already agreed verbally to shift to first phase. The opposite party got the relevant papers for preparation of the agreements. But the complainant on one pretext or the other was dodging the matter.

Due to global recession the real estate prices have crashed. The complainant wants to wriggle out of the transaction by hook or cook and therefore she has chosen to make baseless allegation. Flat No.504 in Mint Block phase-1 is ready for occupation and no sooner the balance amount is paid by the complainant the said flat would be registered in her favour. The complainant has suppressed material facts which are extremely important for adjudicating the matter and this conduct of the complainant amounts to fraud and on this ground itself the complaint is liable to be dismissed. On these grounds the opposite party has prayed for dismissal of the complaint.



3. In support of the respective contentions, both the parties have filed affidavits and have produced copies of the documents. We have heard the arguments on both sides.



4. The points for consideration are:-

(1) Whether the complainant has proved deficiency in service on the part of the opposite party?



(2) Whether the complainant entitled to the relief prayed for in the complaint?



5. Our findings on the above points are in the Negative for the following:-

REASONS

POINT Nos. 1 & 2:-

6. The fact that the complainant entered in to sale agreement and construction agreement both dated: 20.06.2006 with the opposite party agreeing to purchase flat No.507 on fifth floor of the Olive Block for a total consideration of Rs.35,01,350/- and that the complainant has paid a total sum of Rs.12,47,169/- is not disputed. The fact that as per the above agreements the flat was to be delivered by the end of September-2007, but for the reasons mentioned by the opposite party in the letter dated: 18.07.2007 delivery of the flat was postponed to 31st December 2008 is also not disputed. On her own admission the complainant accepted postponement of delivery of the possession of the flat till 31.12.2008 accepting the reasons mentioned by the opposite party in the letter dated: 18.07.2007. She also admits that she had given a letter for allotment of alternative flat. When the complainant accepted the reasons assigned by the opposite party in the letter dated: 18.07.2007 and agreed to take possession of the flat on 31.12.2008 she is not entitled to make grievance with regard to the delay in completion of the project and handing over possession of the flat. The opposite party has produced the copy of the letter dated: 24.05.2008 given by the complainant agreeing to shift the booking from Olive 507 to Mint 504.

This letter appears to be in the handwriting of the complainant herself. Therefore it cannot be believed that the opposite party forced her to give such a letter agreeing to shift the allotment of the flat to Mint 504 in place of Olive 507. After giving this letter dated: 24.05.2008 consenting for shifting of the flat the complainant has filed this complaint on 19.01.2009. If really the opposite party obtained the said letter by misrepresentation or by holding threat the complainant would not have waited for nearly seven months for file the present complaint. Admittedly the complainant has not paid the full cost of the flat booked by her. According to the opposite party the complainant is still due Rs.22,54,181/-. It is also contended by the opposite party that as per the letter dated: 24.05.2008 when the complainant accepted to shift to flat bearing No.504 in Mint Block they had also made preparation for drafting all the agreements, but the complainant avoided to sign the necessary papers. It is contended by the opposite party that flat No.504 in the Mint Block is ready for occupation and as soon as the complainant makes payment of the balance amount the said flat will be registered in her favour and possession will be delivered.

In that event the complainant cannot find fault with the opposite party in not completing the transaction. The contention of the opposite party that flat No.504 in Mint Block is ready for occupation is not denied by the complainant. Therefore the complainant herself is guilty of not making payment of the balance amount and getting the flat registered in her favour. The contention of the complainant that the bank on its own foreclosed the loan account also appears to be not correct. According to the complainant the Bank itself visited the site inspected the construction activities and found that the second phase of the construction is not yet commenced and therefore it foreclosed the loan and imposed heavy penalty. But from the copy of the letter produced by the complainant it is clear that only at the request of the complainant for pre-closure of the loan account the Bank closed her loan account and imposed Rs.51,110-86 towards prepayment charges at the rate of 2%.

In the letter dated: 22.09.2008 addressed by the Bank to the complainant nothing is stated that the bank itself inspected the site and found that the second phase of the construction is not yet commenced and therefore it pre-closed the loan account and called upon the complainant to pay the entire loan amount. From the letter it is clear that the complainant herself requested for pre-closure of the loan account and accordingly the Bank closed the loan account imposing prepayment charges. Therefore the contention of the complainant in the complaint in this regard appears to be totally false. Thus it is clear that the complainant has not disclosed true facts in the complaint. She is guilty of suppression of material facts. She has not paid the entire sale consideration for the flat though the flat proposed to be purchased by her is ready for occupation.

The complainant cannot be permitted to take benefit of her own latches. It is specifically contended by the opposite party that flat No.504 in Mint Block proposed to be purchased by the complainant is ready for occupation and soon after the complainant makes payment of the balance amount the said flat would be registered in her name. In the above circumstances we do not find any deficiency in service on the part of the opposite party and therefore hold that, the complainant is not entitled for the reliefs prayed for in the complaint. It is open to the complainant to make payment of the balance amount to the opposite party and get flat No.504 in Mint Floor registered in her favour. In the result, we pass the following:-

ORDER

7. The complaint is Dismissed with costs of Rs.2,000/- to the opposite party.