Date of Filing:10.09.2020

Date of Disposal:30.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SMT.NANDINI.H.KUMBHAR, MEMBER

1. This complaint is filed by the complainant under section 35 of the C.P.Act, 2019 against the OPs alleging deficiency of service.

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

This is the complainant filed by the complainant that the complainant and her husband signed the expression of interest on 21.04.2013 and invested in the project and as promised by OP the complainant endorsed and the OP has agreed to give possession of the apartment shall by November 2015.The complainant had remitted amount of Rs.5,00,000/- on 29.04.2013 and another installment remitted on 20.08.2013 through cheque towards as booking of the flat proposed by OP. The OP informed that they share the agreement to see after getting the signature of the concerned parties. But despite repeated follow ups agreement was not executed.That after multiple verbal follow ups. The draftof the agreementwas sent on December-2013 along with “Final Draft of the agreement shall be sent after obtaining all the approvals from BBMP and persistent to tracking the final agreement to sellwas also contemplated delay in compensation at the rate of 2% p.m. and the agreement envisaged that, the project shall be completed by March 2016 with additional grace period of 06 months i.e. instead of November 2015. After discussion of both the parties, after providing the principle letter andno objection letter from the bank in 2014, despite all the efforts the OP deliberately avoided and the agreement was not sent. Further on 28^th March 2016 the co-applicant for the flat i.e. husband of the complainant wasexpired and as per the agreement March 2016 was the deadline for the aforesaid unit. The complainant communicated with OP for unfortunate incident of her husband and made aquainted with multiplefinancial losses,both in terms and insurance as well as eligibility to get loan, eventuallycomplainant sought for compensation, but OPmisrepresented the same and sent email that complainant seeking for cancellation of the unit and the complainantcounselsent a mail and conveyed that she never wanted to proceed for cancellation, the complainant approached OP several times for the clarification and has also visited the property on many occasions and realized that the entire project was still at the initial stage of development and was not as per the EOI. Considering the whole sequence of events and the terms of understanding of the covenant and funding process. The reasons fordelaying the completion of the project is attributed to OP. since all efforts of relentlesslyconvincing OP to take definite stepstowards completion and handing over the possession went in vain. Hence the complainant issued legal notice to OP dt.21.08.2017 calling upon to collect Rs.1,00,000/-. Without their being any fault of the complainant, the OP sent a letter where the OP reiterating the clause of EOI and after deduction OP is ready to pay Rs.8,20,000/-. It is further submitted that OP is deducting suchwith sale purpose of making unlawful gain as such the conduct of the OP clearly amounts to deficiency of service. Due to the act of the OP the complainant preferred to file this complaint seeking relief as prayed in the complaint.

3. Notice to the OP duly served, represent by counsel and filed version  and also chief-examination affidavit in support of their contention.

4. The complainant filed chief examination affidavit along with documents in support of their contention.

5. Heard arguments and matter is reserved for orders.

6. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1               :       Affirmative in part.

Point No.2               :       As per final order

REASONS

8. POINT NO.1:- The complainant  and her husband signed the expression of interest on 21.04.2013 and invested in the project and as promised by OP the complainant endorsed and the OP has agreed to give possession of the apartment shall by November 2015.  The complainant had remitted amount of Rs.5,00,000/- on 29.04.2013 and another installment  of Rs.5,00,000/- remitted on 20.08.2013 through cheque towards as booking of the flat proposed by OP. The OP informed that they share the agreement to see after getting the signature of the concerned parties. But despite repeated follow ups agreement was not executed.  That after multiple verbal follow ups. The draft  of the agreement  was sent on December-2013 along with “Final Draft of the agreement shall be sent after obtaining all the approvals from BBMP and persistent to tracking the final agreement to sell  was also contemplated delay in compensation at the rate of 2% p.m. and the agreement envisaged that, the project shall be completed by March 2016 with additional grace period of 06 months i.e. instead of November 2015. After discussion of both the parties, after providing the principle letter and no objection letter from the bank in 2014, despite all the efforts the OP deliberately avoided and the agreement was not sent. Further on 28^th March 2016 the co-applicant for the flat i.e. husband of the complainant was  expired and as per the agreement March 2016 was the deadline for the aforesaid unit. The complainant communicated with OP for unfortunate incident of her husband and made acquainted with multiple  financial losses,  both in terms and insurance as well as eligibility to get loan, eventually  complainant sought for compensation, but OP  misrepresented the same and sent email that complainant seeking for cancellation of the unit and the complainant  counsel  sent a mail and conveyed that she never wanted to proceed for cancellation, the complainant approached OP several times for the clarification and has also visited the property on many occasions and realized that the entire project was still at the initial stage of development and was not as per the EOI. Considering the whole sequence of events and the terms of understanding of the covenant  and funding process. The reasons for  delaying the completion of the project is attributed to OP. since all efforts of relentlessly convincing OP to take definite steps  towards completion and handing over the possession went in vain. Hence the complainant issued legal notice to OP dt.21.08.2017 calling upon to collect Rs.1,00,000/-. Without their being any fault of the complainant, the OPs sent a letter where the OPs reiterating the clause of EOI and after deduction OP is ready to pay Rs.8,20,000/-. It is further submitted that OP is deducting such  with sale purpose of making unlawful gain as such the conduct of the OP clearly amounts to deficiency of service. Due to the act of the OP the complainant preferred to file this complaint seeking relief as prayed in the complaint.   

9. Notice to the OP duly served, represent by counsel and filed version  and   also chief-examination affidavit in support of their contention. In their version, OP denied complaint allegations and any deficiency on their part. The OP submits that the complainant had expressed her willingness to purchase an apartment unit in the residential project and singed the EOI by paying amount of Rs.10,00,000/-. Thereafter despite of several reminders as admitted by the complainant in the complaint has not come forward to execute the binding agreement for sale and construction agreement neither paid the amount as required. In the absence of a binding contract, the complainant cannot maintain any complaint and the OP has  shared the agreements with the complainant on various occasions since 2014, which the complainant has refused and failed to sign on various unreasonable grounds. All the averments which are not specifically traversed wherein are hereby denied as false and pray to dismiss the complaint. 

10. The complainant has also filed chief examination affidavit by reproducing  the complaint allegations and also produced relevant documents in support of their contention.  During the course of proceeding i.e. on 15.11.2021 the  OP has filed memo along with DD dt.12.11.2021for a sum of  Rs.10,00,000/- drawn  in the name of the complainant and it was deposited  in the commission and on 01.12.2021 counsel of the complainant filed memo to collect the  DD presented by OP before this Commission and  same was received by the complainant on 04.12.2021. After that the complainant and their counsel signed on the order sheet as acknowledgement of DD. Inspite of sufficient opportunity  and time granted to OP and the complainant  has failed to appear before the commission and the commission posted the matter for arguments, but on the date of hearing both the parties neither appeared nor to submit their arguments and the  arguments is taken as not submitted. But on 18.05.2023 the OP has filed memo stating  that the OP has agreed  to pay additional amount of Rs.5,00,000/- towards compensation as a goodwill gesture, without any manner accepting the claim made by the complainant.

11. When such being the case, the commission observed that during the proceedings when the OP has deposited the D.D No.760152 dt.12.11.2021 of Rs.10,00,000/- in the office and when the complainant has received thebooking amount of Rs.10,00,000/- and which is signed by the complainant and their counsel  and the commission endorsed the same in the ordersheet. Hence, the complainant has no right to pray for damages, even though as per memo filed by OP that OP has accepted as a goodwill gesture without any manner offered to pay additional amount of Rs.5,00,000/- to the complainant and the OP is  also liable to pay compensation and interest at the rate  12% from the date of last payment made by the complainant for booking the flat on 20.08.2013 till the date of deposit of D.D. i.e.12.11.2021.

12. In view of the above discussion and by looking at the facts of the complaint and documents produced, the commission has come to the conclusion that the OP is liable to pay compensation  and amount of Rs.5,00,000/- as they agreed to pay in their memo. Accordingly, we answer point no.1 in partly affirmative.

13. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                     ORDER

1. The complaint filed by the Complainant U/s35 of the Consumer Protection Act, 2019 is hereby allowed in part.
2. The OP is directed to pay only interest on Rs.10,00,000/- at the rate  12% from the date of last installment payment i.e. dt.20.08.2013 till the date of deposit of D.D i.e.12.11.2021.
3. OP is also directed to pay compensation of  Rs.5,00,000/- as  agreed along with litigation cost of Rs.5,000/-.

4. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 30^thMay 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)         (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                  MEMBER

Witness examined on behalf of the complainant by way of affidavit:Smt. PraveenaParameswaran-Who being the complainant.

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:Sri Sanjay Vishwanathan, Who being the authorized signatory of OP

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*