ORDER

SMT.SHARAVATHI S.M.  MEMBER

1. This is the complaint filed by the Complainants against the opposite party (herein referred to as op) under section 35 0f the Consumer Protection Act, 2019 alleging the  deficiency in service in not   registering the flat No 405 and not refunding the value and for directing op to register the flat for which he has paid the amount, and in the alternate to refund a sum of Rs.37,42,444/- along with interest of the rate of 18% per annum from the date of payment and Rs.7,00,000/- as compensation, Rs.5,00,000/- towards mental harassment and Rs.25,000/- towards legal expenses and cost of this complaint for practicing fraud and unfair practice and for other reliefs as the commission deems fit.

2. The brief facts of the complaint are that: OP is the builders and developers and owner of the property and   enter into a construction agreement dated 10/02/2017 in respect of Flat no 405 in 4^th floor, of the apartment known as  ‘UNISHIRE LA VIDA’ for a total sale consideration of sum of Rs.37,42,444/-. OP received the entire sum of Rs.37,42.444/- on different dates i.e. of Rs.5,00,000/- on 28/05/2016, Rs.10,50,000/- on 19/08/2016, Rs.5,00,000/- on  07/11/2016, Rs.3,00000/- on 07/11/2016, Rs.50,000/- on 31/01/2017, Rs.50,000/- on 01/01/2017, Rs.44,963/- on 02/01/2017, Rs.10.00,000/- on 18/04/2017, Rs.1,47,481/- on 19/04/2017, Rs.1,00,000/- on 20/04/2017, for which receipts has been issued by OP. OP also assured that it would allot a flat as early as possible. As per the agreement of construction of ‘C’ Schedule property, it was agrees to deliver the possession to the flat within 36 months with a grace period of 6 months from the date of sale agreement. After the lapse of the said period also OP did not complete the construction of the building. They have been approaching OP and requesting them to hand over the flat and OP went on giving lame excuses and evasive answers. OP did not come forward to receive the balance of the sale consideration and not executed the sale deed as agreed. Hence the sale transaction could not be completed due to OP’s failure to construct the building in terms of the joint development agreement. OP has not come forward either to repay the advanced amount allot the flat. They had to issue legal notice, which was served on them. Inspite, did not allot the flat, not refund the amount. Hence there is deficiency in service in not allotting the site, as which also amounts to unfair trade practice by  OP which has caused mental sufferance, inconvenience and hence the complaint.

3. Upon the service of notice OP did not appear before the commission, hence placed exparte.

4. In order to prove the case, complainant filed affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1. Whether the complainants have proved deficiency in service on the part of the opposite party?
2. Whether the complainants are entitled to the relief prayed for in the complaint?

5. Our answers to the above points are:-

POINT NO 1: IN THE AFFIRMATIVE

POINT NO 2: PARTLY IN THE AFFIRMATIVE

                        For the following.

REASONS

POINT NO 1:-

6. Perused the complaint, affidavit evidence and documents produced by the complainants. It is admitted that is OP builder and developer. It is also admitted that a sum of Rs.37,42,444/- paid by the complainants on different dates and the remaining balance towards flat is to be paid, the said amount remained with OP. Whatever be the reasons for delay in constructing the flat, it is the bounden duty of OP to adhere to the time line which was promised to the complainants. There are number of decisions rendered by the HON’BLE SUPREME COURT OF INDIA AND ALSO HON’BLE NATIONAL COMMISSION regarding the same. In case OP do not adhere to the time line in constructing the flat in time as agreed in the agreement of sale dated:10/02/2017, it amounts to deficiency in service and complainants are bound to be compensated. Hence we answer POINT NO 1 IN THE AFFIRMATIVE.

POINT NO 2:

7. The complainants are entitled to interest at the rate of 12% per annum on the said amount of Rs. 37,42,444/- paid by the complainants at the time of booking the flat on 28/05/2016 till the payment of the entire amount on 20/04/2017. Further the act of op made the complainants to approach this commission and have suffered mentally, physically and financially. Hence we are of the opinion that, if OP is ordered to deliver possession of the flat within three months and sum of Rs.1,00,000/- towards damages  and Rs.10,000/- towards litigation expenses to the complainants would be just, proper and reasonable. Hence we answer POINT NO 2 PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1. Complaint is allowed in part with cost.
2. OP M/S UNISHIRE BUILDERS PRIVATE LIMITED represented by its Authorized signatory is hereby directed to allot the flat to the complainants within three months and to execute and register the sale deed and handover the possession of the same to the complainants within three(3) months from the date of receipt of this order.
3. Failing which OP is hereby directed to pay sum of Rs.37,42,444/- along with interest 12% per annum on the said amount from the date of receipt of the amount till payment of the entire amount.
4. OP further directed to pay a sun of Rs.1,00,000/- towards damages and Rs.10,000/- towards litigation expenses.
5. OP further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.          

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 10^th  day of February 2022)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of Memorandum of Sale Agreement.

Ex P2: Copy of Arrangement letter

Ex P3: Copy of Tripartite Agreement

Ex P4: Copy of receipts for having paid Rs.37,42,444/-

Ex P5:Copy of no objection letter issued by OP

Ex P6. Copy of legal notice

Ex P7: Copy of the reply.

Ex P8: Copy of order passed by RERA.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: -NIL-

Copies of Documents produced on behalf of Opposite Party/s

-NIL-

MEMBER                PRESIDENT

RAK*