Date of Filing:21.04.2022

Date of Disposal:12.04.2023

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

SRI RAMACHANDRA.M.S,  PRESIDENT

1. The complainant files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OP-1 to pay a sum of Rs.33,36,000/- along with interest at the rate of 24% p.a. from 28.02.2019 till its realization, pay a sum of Rs.4,00,000/- as compensation  an account of financial loss, mental agony, towards the injury and such other reliefs.

2.   The following are the complaint's key facts: 

The case of the complainant is that the OP-1 who is in the business of developing plots and other construction related flats business and OP-2 & 3 are the land owners. Where the OP-1 intends to build residential apartments which is situated at Shivalli village, Yelahanka hobli, Bengaluru North Tq., of Sy.No.18/1. OP-1,2 & 3 have registered joint development agreement with OP-1 in order to carry out the said project of construction of residential apartments in the above said plots andthe relevant deedswere executed between them pertain to said property.

3. The complainant as interested in the said project and to purchase Flat No.G-9 in tower-1 situated at Shivanahalli, Yelayanka hobli, Bengaluru North Tq., Both the complainant and OP have agreed same in to construct and sale agreement for the  said flat along with undivided share, right and title. The complainant agreed to purchase the flat which is  constructing  in the name of Manyam Sky Park. The total sale consideration  for a sum of Rs.51,64,000/-.

4. The complainant has paid total sum of Rs.9,00,000/- to the OP and on receipt of the same they have entered into sale agreement and also construction agreement on 28.02.2019. Thereafter, the complainant approached the State Bank of India for availing housing loan in order to pay the entire balance sale consideration amount for the purchase of the said flat. By entering into tripartite agreement the bank has sanctioned loan to the complainant. The tripartite agreement is entered between the complainant, OP-1 and State Bank of India. The letter of sanction also issued by State Bank of India on 13.06.2019, wherein they  have sanctioned housing loan of Rs.41,30,000/- at the rate of interest 8.85% p.a. Thereafter, OP have got released a sum of Rs.20,00,000/- from the State Bank of India out of the loan sanctioned account to the complainant by producing letter of completin. The OP got released the said amount from the Bank. Thereafter despite of receipt of total sum of Rs.29,00,000/- neither OP has completed the project nor work is in progress. The complainant after availing the said loan, regularly paying the bank EMI to the State Bank of India  and the have also paid a sum of Rs.4,16,000/- towards interest on the said loan.

5. It is case of the complainant that despite of receipt of above said amount and even after lapse of 03 years from the date of execution of construction agreement and agreement for sale the OP had  only completed skeleton/pillar work upto 7^th floor. The OP has promised and agreed by way of agreement to hand over the possession of the flat in the year by August 2020 to the complainant. In spite of that the OP has not able to complete the 8^th floor as the complainant’s flat is in the 9^th floor. There is no positive  efforts from the OP to complete the construction work till 8^th floor.

6. It is also case of the complainant that even after execution of tripartite agreement between the complainant and banker of the OP, the OP has promised to complete the project as per schedule and subsequently by issuing false completion letter dt.07.06.2019 the OP has got released housing loan amount of Rs.20,00,000/- from the complainant banker. This act and action of the OP amounts to criminal breach of trust under the provisions of law. Thereafter the complainant has made all best efforts to approach the OP and requested to complete the said project in order to get the possession of the said flat. Despite of all the efforts the OP has not at all heeded to the request of the complainant and they have not bothered to complete the said project as agreed between them. Aggrieved by the act of the OP the complainant has no other alternative, he was forced to file the present complaint seeking relief of refund of  entire amount along with other reliefs as prayed in the complaint

7. Notice to OP-1, 2 & 3  duly served. OP-2 & 3 by  remained  absent, they have placed ex-parte. OP-1 even though represented by counsel neither filed version nor filed affidavit evidence in support of their case.

8.  The complainant filed chief-examination affidavit along with relevant documents in support of his contention.

9.  Heard arguments. The matter is reserved for order.

10.  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?

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

Point No.1                :       Affirmative

Point No.2                :       As per final order

REASONS

12. POINT NO.1:-  The OP-1 is the developer who is the in the business of developing plots and other construction related flats business and OP-2 & 3 are the land owners. Where the OP-1 intends to build residential apartments which is situated at Shivanahalli village, Yelahanka hobli, Bengaluru North Tq., of Sy.No.18/1. OP-1,2 & 3 have registered joint development agreement with OP-1 in order to carry out the said project of construction of residential apartments in the above said plots and  the relevant deeds  were executed between them pertain to said property.

13. The complainant as interested in the said project and to purchase Flat No.G-9 in tower-1 situated at Shivalli, Yelayanka hobli, Bengaluru North Tq., Both the complainant and OP have agreed same in to construct and sale  agreement for the said flat along with undivided share, right and title. The complainant agreed to purchase the flat which is  constructing  in the name of Manyam Sky Park. The total sale consideration  is fixed  for a sum of Rs.51,64,000/-.

14. The complainant has paid total sum of Rs.9,00,000/- to the OP and on receipt of the same they have entered into sale agreement and also construction agreement on 28.02.2019. Thereafter, the complainant approached the State Bank of India for availing housing loan in order to pay the entire balance sale consideration amount for the purchase of the said flat. By entering into tripartite agreement the bank has sanctioned loan to the complainant. The tripartite agreement is entered between the complainant, OP-1 and  State Bank of India. The letter of sanction also issued by State Bank of India on 13.06.2019, wherein they  have sanctioned housing loan of Rs.41,30,000/- at the rate of interest 8.85% p.a. Thereafter, OP have got released a sum of Rs.20,00,000/- from the State Bank of India out of the loan sanctioned account to the complainant by producing letter of completion. The OP got released the said amount from the Bank. Thereafter despite of receipt of total sum of Rs.29,00,000/- neither OP has completed the project nor work is in progress. The complainant after availing the said loan, regularly paying the bank EMI to the State Bank of India  and the have also paid a sum of Rs.4,16,000/- towards interest on the said loan.

15. It is case of the complainant that despite of receipt of above said amount and even after lapse of 03 years from the date of execution of construction agreement and agreement for sale the OP had only completed skeleton/pillar work upto 7^th floor. The OP has promised and agreed by way of agreement to hand over the possession of the flat in the year by August 2020 to the complainant. In spite of that the OP has not able to complete the 8^th floor as the complainant’s flat is in the 9^th floor. There is no positive  efforts from the OP to complete the construction work till 8^th floor.

16. It is also case of the complainant that even after execution of tripartite agreement between the complainant and banker of the OP, the OP has promised to complete the project as per schedule and subsequently by issuing false completion letter dt.07.06.2019 the OP has got released housing loan amount of Rs.20,00,000/- from the complainant banker. This act and action of the OP amounts to criminal breach of trust under the provisions of law. Thereafter the complainant has made all best efforts to approach the OP and requested to complete the said project in order to get the possession of the said flat. Despite of all the efforts the OP has not at all heeded to the request of the complainant and they have not bothered to complete the said project as agreed between them. Aggrieved by the act of the OP the complainant has no other alternative, he was forced to file the present complaint seeking relief of refund of entire amount along with other reliefs as prayed in the complaint.

17. Even though OP-1 is represented by counsel, they have neither filed version nor adduced any defence evidence from their side and the conduct of the OP-1 being a developer shows that a negligence and carelessness attitude so far as the present complain is concerned.

18. The complainant filed chief examination affidavit by reiterating the complaint averments and also relevant documents in order to substantiate their contention in so far as complaint allegations as against OP is concerned.

19. On perusal of the annexure-6 document, it is construction agreement dt.28.02.2019 between the complainant and the OP, wherein OP has acknowledged the receipt of a  sum of Rs.9,00,000/- from the complainant towards part payment of the cost of the construction and it is also agreed between them and the rest of the balance amount will be paid as on the date of execution of the sale deed. Annexure-7 is the agreement for sale executed between the complainant and OP-1 dt.28.02.2019, wherein the OP has agreed to sell the said flat to the complainant for a total sale consideration of Rs.51,64,000/- and as per recital the complainant has made an advance payment of Rs.9,00,000/- towards sale consideration as part payment. It is agreed between the parties, the rest of the balance amount will be paid on the date of delivery of the possession of the said flat. Annexure-14 is the copy of the tripartite agreement dt.19.06.2019 entered between the complainant, OP-1 and State Bank of India. This agreement is entered between the parties wherein the complainant being the borrower of the housing loan and the OP-1 being the developer of the said project and  State Bank of India being the financier, who has sanctioned the loan to the complainant in order to give the financial assistance to the complainant in order to purchase the said flat from OP-1. The terms and condition of the parties agreed as mentioned in the deed and other annexure documents produced. As annexure-8,9,10,11 and 12 is also a communication between the complainant and the State Bank of India pertaining to the said transaction. It is very important to note that annexure-13 is true copy of the loan sanction letter dt.13.06.2019, wherein the said banker has intimated the complainant that the request of the housing loan which is made by the complainant has been sanctioned by the banker and the same is intimated by this letter to the complainant. The rest of the annexure documents A-15 to A-19 pertaining to the transaction which took place between the complainant and the OP in so far the said project and status of the construction is concerned.

20. From the perusal of all the annexure documents produced and deeds executed  between the complainant and OP-1 also by considering the complaint averments and other allegations as against OP. It is crystal clear that the OP have clearly violated the terms and conditions of the both construction and sale agreement and they have breached the terms and conditions of the agreement. There by they have rendered careless and negligence service to the complainant during the course of the service. It is also very important to note that the OP-1 by falsely representing the issue and by producing false completion report of the said project have got released the loan sanctioned from the complainant account from banker an amount of Rs.20,00,000/-. This fact is clear case of fraud which has been played by the OP-1 as against the complainant.

21. In view of the above discussion, by considering the annexure documents produced and the conduct of the OP, it is observed that there is deficiency of service which is rendered by OP during the course of service to the complainant, for which they are  held liable to pay legitimate claim of the complainant. It is also taken note that there is inordinate delay in both completing the construction of the project as well as handing over the possession of the said flat to the complainant. For which the OP shall be liable to pay higher rate of compensation with interest, for which complainant is entitled. In view of the above discussion, we answer the Point No.1 in Affirmative.

22. POINT NO.2:- In the result, we passed the following:

ORDER

1. Complaint is allowed in part.
2. The OPs are jointly and severally directed to refund Rs.29,00,000/- along with interest at the rate of 12% p.a. from the date of execution of sale agreement till payment is made  to the complainant.
3. The OPs  further jointly and severally directed to pay a sum of  Rs.5,00,000/- as compensation for deficiency and mental agony, pain and sufferings  and sum of Rs.5,000/- towards litigation charges. If the OP fails to comply the order within 60 days from the date of order, compensation amount and cost of litigation shall  carry interest at 8% p.a. for non-compliance of the order.

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 12^th April 2023)

(RAMACHANDRA M.S.)

PRESIDENT

       (NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

                 MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Sri Shree Shasta C.Shetty-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP-1 by way of affidavit: Nil

Documents produced by the OP-1: Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*