Karnataka
StateCommission
CC/117/2018
Kumara swamy.M.C. - Complainant(s)
Versus
Grodrej Properties Ltd - Opp.Party(s)
I.P.(Kumara swamy.M.C.)
17 Aug 2021
ORDER
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE
DATED THIS THE 17TH DAY OF AUGUST 2021
PRESENT
MR. KRISHNAMURTHY B. SANGANNAVAR : JUDICIAL MEMBER
MRS. DIVYASHREE M. : MEMBER
Consumer Complaint No. 117/2018
& M.A.No.4/2019
Kumara swamy.M.C.
V/s |
..…Complainant
|
1. Adi Godrej Chairman Emeritus Godrej Properties Ltd. Unit No.5C, 5th Floor, Godrej One Pirojshanagar, Vikholi-East, Mumbai 400 079
2. Pirojsha Godrej Executive Chairman Godrej Properties Ltd. Unit No.5C, 5th Floor, Godrej One Pirojshanagar, Vikholi-East, Mumbai 400 079
3. Mohit Malhotra Managing Director Godrej Properties Ltd. Unit No.5C, 5th Floor, Godrej One Pirojshanagar, Vikholi-East, Mumbai 400 079
4. Grodrej Properties Ltd
5. Jamsheyd Godrej Director – Non Executive Godrej Properties Ltd. C/o. Godrej & Boyae Manufacturing Co. Ltd. Pirojshanagar, Vikhroli-East Mumbai 400 079 C/o. Godrej & Boyae Manufacturing Co. Ltd. Pirojshanagar, Vikhroli-East Mumbai 400 079 Unit No.5C, 5th Floor, Godrej One Pirojshanagar, Vikholi-East, Mumbai 400 079 Unit No.5C, 5th Floor, Godrej One Pirojshanagar, Vikholi-East, Mumbai 400 079 Godrej Properties Ltd. Unit No.5C, 5th Floor, Godrej One Pirojshanagar, Vikholi-East, Mumbai 400 079 Unit No.5C, 5th Floor, Godrej One Pirojshanagar, Vikholi-East, Mumbai 400 079 Unit No.5C, 5th Floor, Godrej One Pirojshanagar, Vikholi-East, Mumbai 400 079
12. Aswin Prasad Kallappa DGM – Marketing & Sales Godrej Properties Ltd. No. 80, Hulkul Ascent 2nd Cross, Lavelle Road Bangalore 560 001
13. Aarushi Gupta
OP Nos. 1, 2, 3 & 5 to 12 are deleted as per Order dated 08.11.2019.
|
..…Opposite parties as per Original complaint |
1. Grodrej Properties Ltd Vikholi-East, Mumbai-400079 Vikholi-East, Mumbai-400079 |
……Opposite parties as per Amended complaint |
O R D E R
Mr. KRISHNAMURTHY B. SANGANNAVAR, JUDICIAL MEMBER
This is a complaint filed under Section 17 of the Consumer Protection Act, 1986 initially against OP Nos. 1 to 14 and after amendment against OP Nos. 1 to 11 with a relief to pass order directing jointly and severally to provide copies of the title deeds, documents for loan sanction from the bank, execute agreement of sale of undivided land, construction agreement and registered absolute sale deed in his favour in respect of the schedule property by receiving up to date installment amount without demanding for any interest thereon. And in the alternative sought for a direction to the OPs jointly and severally to repay entire amount of Rs.3.00 lakhs along with interest at the rate of 24% p.a. from February 26,2017 till date of realisation for deficiency, negligence and unfair trade practice, to pay compensation of Rs.50.00 lakhs along with interest at the rate of 24% p.a. towards harassment, mental sufferings, agony.
- The brief facts of the case of the complainant is that he was approached by Ms. Aarushi Gupta, Executive Marketing and Sales of Godrej Properties for purchase of flats in Godrej Platinum located at Bellary Road, Bangalore. He visited the site and selected Flat No.B-908 having 298 sq.mts. super built up area. It was negotiated for the terms and conditions at Rs.2,34,62,098/- as against original sale price of Rs.3,12,85,945/-. One Mr. Aswin Prasad Kallappa, DGM, Marketing & Sales along with Ms. Aarushi Gupta visited his residence informing that their higher management agreed for 8 months period for payment. Accordingly, she communicated through e-mail and asked him to pay booking amount of Rs.3.00 lakhs in the name of Godrej Properties Development Pvt. Ltd. He has paid Rs.3.00 lakhs through cheque of ICICI Bank Ltd., Sahakar Nagar Branch, Bangalore.
- In April 2017 he received copy of agreement for sale and received calls from Godrej Properties, Bangalore. He requested for copies of the title deeds and documents, but, there was no response. In June 2017 he met Mr. Aswin Prasad Kallappa at their project site of Tumkur Road, Godrej One and requested for the title deeds and property documents for which he said he will inform the concerned and assured that he need not worry and shall be provided shortly. He made several calls to Mr. Aswin and Ms. Aarushi Gupta, but, there was no response and SMS messages sent were never replied. As he made loan application with the bank for a sum of Rs.200.00 lakhs, they wanted to process the loan application. That on 8th January 2018 he has sent a letter to Mr.Adi Godrej, Chairman emerius, Mr.Pirojsha Godrej, Executive Chairman and Mr. Mohit Malhotra, MD &
- 4th OP submitted version and additional version to the case of the complainant. As per the order of the Hon’ble National Commission in First Appeal No.752/2019 dated 17.10.2019, this Commission directed to delete OPs 1,2,3,5,6,7,8,9,10,11 and 12 as not necessary parties and directed to implead M/s. Godrej Projects Development Ltd. and others as OPs and in this regard order being implemented, further Ops 13 and 14 are also held not necessary parties. Thus, now parties on record is OP No.4 and his participation would sufficient to decide the complaint.
- OP No. 4 denies that they are not deficient in rendering service to complainant and denied unfair trade practice alleged by him. The complainant has filed frivolous complaint unnecessarily dragging executives and prominent personalities personally into consumer disputes. OP No. 4 admits receipt of Rs.3.00 lakhs by way of cheque bearing No.096652 dated 26.02.2017 drawn on ICICI Bank, Bangalore towards necessary booking amount / application money to GPDL. As complainant expressed interest in purchase of a flat in Godrej Platinum, accordingly, a flat was chosen by him and was made to fill out an application form dated 26.02.2017 which contains the terms and conditions as per contract after making payment towards booking amount, a sum of Rs.43,75,922/- was required to be paid within 45 days of booking i.e., on or before 12.04.2017 and he was obligated to enter into agreement of sale and construction agreement with GPDL. The terms of the contract clearly state that application form is only an offer to the complainant for allotment by sale of the residential flat, it does not create any right, title or interest whatsoever in the said residential flat. The allotment made in favour of complainant was provisional and subject to compliance of the terms of the contract. Should complainant fail to make timely payments as per the schedule of payment of the contract, he would not have entitled for allotment of flat. Despite repeated reminders complainant failed to make any payment further to the booking amount. Left with no alternative GPDL was compelled to terminate the contract and allotment of flat to the complainant by letter dated 10.10.2017 informing that the contract had been terminated owing to the default on the part of the complainant in making his payment and that the booking amount stood forfeited. The forfeiture was entirely in terms of contract within the scope of law and only due to default committed by the complainant. After a period of nearly two months of silence, he sent letter dated 08.01.2018 and the said issue was escalated to the Head Office of OP No.4. In this regard referred about exchange of e-mails between complainant and OPs. The cost sheet forming part of the contract was prepared as per 8 month moratorium period agreed with the complainant. In usual course of procedure initial payment of 20% agreement amount was to be paid within 15 days and the rest of the sale consideration was to be paid within 3 months when the sale deed would be executed. However, as a special case 45 days was granted for payment of 20% of the sale consideration and 8 months time for the balance payment. There was no question of GPDL having failed to provide title documents as they had already been shared. The complainant ever sought for title documents or complained that he had not received the said documents. It is only after termination of the contract that he concocted this as a reason to harass the OPs. The prayers sought in his complaint are in-fructuous as the property has been sold to 3rd party after termination as per letter dated 10.10.2017 and they strongly deny that OPs are jointly or severally liable for the prayer sought as alleged.
- During the course of the enquiry, complaint files application under Section 191 of IPC R/w Section 340 and 357 of Cr.PC, which is directed to be registered separately in miscellaneous case and the same is registered as M.A.No.4/2019, is also taken for disposal along with this complaint. In this application complainant sought for prosecution of OP Nos. 1 to 14 for the offence of 191 of IPC R/w Section 340 and 357 of Cr.PC, which is strongly resisted by OPs contending not maintainable.
- In view of rival contentions of respective parties, the Commission held an enquiry by receiving affidavit evidence of complainant and OP No. 4 along with documents.
- The Commission heard the complainant as a Party In-Person and Learned Counsel for OP No.4. Now, we have to decide whether the relief sought by complainant in his complaint against OP No. 4 could be allowed for the alleged deficiency of service ? And if so, to initiate action against OPs as sought in Miscellaneous Application No.4/2019 ?.
- Complainant and Learned Counsel for OP No.4 now on record argued on impleading of parties, in particular OP Nos. 1, 2, 3 and 5 to 14. In this regard relied on catena of decisions of Hon’ble National Commission and Hon’ble Apex Court of India. In our view it is not necessary to go in again on the said matter, since, the Hon’ble National Commission in F.A.No.752/2019 dated 17.10.2019 decided the issue and this Commission on 08.11.2019 directed to delete OP Nos. 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11 from the array of the complaint as not necessary parties and directed to implead M/s. Godrej Projects Development Pvt. Ltd. as party. Who could be said necessary party and he is now on record as contesting OP to adjudicate upon the consumer dispute between parties. Accordingly recorded finding on the issue of parties.
- In so far as, M.A.No.4/2019, wherein complainant has sought to prosecute and punish OP Nos. 1 to 14, for the offence of Section 191 IPC. He sought to hold enquiry under Section 340 and 357 of Cr.PC. This filed in a pending complaint case. We have to observe herein when OP Nos. 1,2,3,5,6,7,8,9,10,11 and 12 are held not necessary parties, question of trying them either under Section 340 or S.357 for the offence of Section 191 of IPC does not survive for consideration and held the application is frivolous. Accordingly, recorded finding to that effect.
- Let us examine the main case of the complainant. It is his case that he was approached by Ms.Aarushi Gupta, Executive Marketing and Sales of Godrej Properties for purchase of flat in Godrej Platinum located in Bellary Road, Bangalore and he visited the site and selected Flat No.B-908 having 298 Sq.Mts. super built up area and she negotiated the terms and conditions and it was negotiated for Rs.2,34,62,098/- as against original sale price of Rs.3,12,85,945/-. He alleged that Sales Executive visited their residence informing that the management has agreed for eight months period for payment, accordingly, communicated to him by e-mail and pursuant to the said e-mail, they gave an application and asked him for booking amount of Rs.3.00 lakhs in the name of Godrej Projects Development Pvt. Ltd. and the same has been paid through a cheque of ICICI Bank, Sahakar Nagar Branch, Bangalore.
- In so far as receipt of Rs.3.00 lakhs in favour of OP No. 4 is not disputed. This cheque is dated 26.02.2017 is not disputed and its receipt by OP No.4 is not disputed. Complainant himself has stated that payment schedule is spread over in eight months and this would play a vital importance. OP No. 4 terminated provisional allotment of apartment bearing No.B-908 in the 9th Floor in Tower 8 of the development known as Godrej Platinum constructed on the Schedule A property having 298 sq.mts. super built up area is on 10.10.2017. It is thus the date of provisional allotment letter / receipt of booking amount of Rs.3.00 lakhs and the date of termination would play a vital importance herein to decide on the consumer complaint raised alleging deficiency in service and unfair trade practice. It has come in the enquiry that as per the contract after making payment towards booking amount a sum of Rs.43,75,922/- was required to be paid within 45 days of booking i.e., on or before 12.04.2017. However, either till 12.04.2017 or prior to 10.10.2017 no additional payment was made by the complainant to OP No. 4 pursuance to provisional allotment of flat promised to be / agreed to be sold in favour of complainant for Rs.2,34,62,098/- showing his interest to purchase the provisionally allotted site. It is also come in the enquiry that eight months payment flexibility were been incorporated in the contract and the payment schedule was based on an offer but till 09.10.2017 has not shown any interest to buy the Flat. It is to be bear in mind that time schedule is always would play a vital importance in the matter of these projects under taken by the builder and it is reciprocal. The builder has to build the apartments only by utilizing the amount collected from the buyers. In such case time is always held essence of the agreement contract.
- It is not that OP No. 4 project at the relevant time namely prior to 10.10.2017, was still under construction, in order to allow complainant time liberally to pay the installments, since OP No. 4 would contend in the usual course procedure, initial payment of agreement amount were to be paid within 15 days and the rest of the consideration within 3 months, when the sale deed would be executed. In his case OP No.4 as a special case, 45 days was granted for payment of 20% of the sale consideration and eight months time for the balance payment, which is not adhered to by the complainant on the ground that OPs failed to provide title deeds and other required documents to raise bank loan could not be acceptable, since such documents are always with Bankers, as the transactions are innumerous. It is his contention that the Ops surprisingly terminated contract under letter dated 10.10.2017 which is illegal is again unacceptable, since February then they waited. It has also come in the enquiry that after termination of provisional allotment by OP No. 4, the very property was sold to some other 3rd party. They need not wait when terminated provisional allotment. Thus, when such a sale taken place after 10.10.2017, which cannot be said either deficiency of service or unfair trade practice. It is therefore, OP No.4 rightly submitted that question of providing copies of the title deeds and documents of the property for loan sanction from the bank and to execute agreement of sale of three bedroom apartment bearing No.B-908, 9th Floor at Tower 8 of Godrej Platinum having 298 Sq.mts. of super built up area does not arise at all as become in-fructuous.
- As already stated that Rs.3.00 lakhs was paid by complainant to OP No. 4 or its team consisting of Executive Marketing and Sales, as well as customer centricity, is not towards ongoing project, but, it was for almost constructed project, bearing apartment No.B-098 situated in 9th floor in Tower 8 of the Godrej Platinum. It is therefore quite natural to fix time schedule for payment of amount promised to be purchased by the complainant and promised to be sell by OP No. 4, which has to be spread over in eight months and does mean eight months. In so far as 20% of sale price amount has to be paid within 45 days and such payment either at that price or less whatever the amount paid by complainant showing his interest to go further to buy the Flat, could not be found from enquiry. In such circumstances, no unfair trade practice could be attributed on OP No. 4 or its team.
- The events of transaction with dates would play a vital importance and the enquiry reveals that the flat promised to be purchase by complainant is sold to 3rd party only after 10.10.2017 namely only after termination of provisional allotment, till then from 26.02.2017, almost eight months have been elapsed and no part payment or payment as per schedule is paid by the complainant to OP no.4. In such circumstances, strong contention of complainant that the act of OP No. 4 amounts to unfair trade practice is unacceptable and his further contention that the excess money received from 3rd party in the sale transaction after 10.10.2017 as against the sale price fixed in his favour could not be claimed by him either on the grounds of unfair trade practice or deficiency in service on the part of OP No.4 or his team, since, he has only paid Rs.3.00 lakhs towards booking of the said flat and obtained a provisional allotment and not paid any additional amount thereafter except exchanging mails and e-mails on mails and except contending that they did not provide him title deeds to raise loan. If his intentions were to raise loan could have made sincere efforts to obtain such documents, keeping in mind the time schedule for payment of the installments. In our view if he really minds, could have obtained such documents, since he appears to be practicing law and himself conducted his case before this Commission and with such stature to obtain such documents, it may not be difficult but facts remain could be seen from his conduct thrown the blame on Ops. It is found in the enquiry that OP No. 4 and its team have shared such documents. Even if it untrue, still for the reasons recorded above, it may not be difficult for him to obtain such documents. It is not that OP No. 4 sold the said flat even before termination of provisional allotment, but, sold on 07.02.2018 which could not be said either deficiency in service or unfair trade practice.
- Let us come to examine forfeiture of booking amount. Admittedly, Rs.3.00 lakhs paid by complainant on 26.02.2017 and he kept mum till 10.10.2017 is one aspect. Similarly, OP No. 4 and its team also kept mum till then. In such circumstances, OP No. 4 being a builder cannot forfeit booking amount paid by the complainant at such time. They kept mum till selling of the Flat to some other third party, as such in our view forfeiture of Rs.3.00 lakhs by OP No. 4 is held unfair. They have utilized such amount in the project.
- In view of the above such conclusion, Commission proceed to dispose of the complaint in the following terms:
OP No. 4 is directed to refund Rs.3.00 lakhs along with interest at the rate of 9% p.a. from 26.02.2017 till realization.
The rest of the reliefs sought by the complainant are hereby dismissed with no order as to costs.
PRESIDENT
JUDICIAL MEMBER
MEMBER
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