CC: 178/2021

   Date of Filing: 05.02.2021

                                                  Date of Disposal: 14.06.2023

BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 14^th DAY OF JUNE 2023

CONSUMER COMPLAINT NO: 178/2021     

                                         PRESENT:           

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER                                          

Smt. Praseeja Jayaprakash,

Aged about 40 years,

P.R at Narayani Nivas,Manamboor,

Kerala-695611.

Present Address:

Smt.Praseeja Jayaprakash,

Flat No.1092, Tower-1 Wing-1

Prestige Royal Gardens,

Doddaballapura Road,

(Rep. by Sri.C.S.Ravishankar, Advocate)            … COMPLAINANT

M/s. Arvind Smart Spaces Limited,

(Formerly Arvind Infrastructure Limited)

Regd.Office at 24, Government Servant Society,

Near Municipal Market,

C.G.Road, Navrangpura,

Ahmedabad-380009, Gujarat.

(Represented by its Managing Director)

Site Office at:

Municipal No.978/45/2B,45/2C,

40, Situated at Shivanahalli Village,

Yelahanka Hobli, Bengaluru East Taluk,

Bengaluru.

(Rep. by Sri. G. Sridhar, Advocate)                        ... OPPOSITE PARTIES

//JUDGEMENT//

BY SMT. REKHA SAYANNAVAR, MEMBER

1. The present complaint is filed under section 35 of CP Act 2019 with a prayer to direct the opposite party to refund the entire amount of Rs.16,18,000/- with interest at the rate of 24% per annum from the date of complaint till realization.  Also may award costs of the proceedings and may grant such other relief or reliefs as this Hon’ble Forum may deem fit to grant, in the facts and circumstances of the case, in the interest of justice and equity. 
2. Brief facts of the complaint.

The complainant submits that the opposite party is the builder  of the residential project ``Arvind Skylands`` being constructed on the immovable property bearing  Municipal No.978/45/2b 45/2cm 40, situated at Shivanahlli Hobli, Bangalore. The complainant had evinced interest in purchasing one of the residential flat in the said housing project, accordingly complainant had entered into an agreement for sale without possession in respect of Flat No.B-504 with the opposite party also paid a sum  of  Rs.8,60,000/- towards part payment of total consideration of Rs.75,39,320/- and the receipt of the same has been acknowledged by the opposite party. This said agreement for sale (without possession) dated 27.05.2019 gas been duly registered at the office of the senior sub-registrar Gandhinagar, kacharakanahalli, Bengaluru.

3. At the time of entering into agreement for sale the opposite party has assured the complainant that the apartment will be constructed as per the specification mentioned in the Schedule–E of the Agreement for sale and also agreed to provide several amenities and facilities to the apartment.

4. The complainant submits that after booking of the apartment  persons in charge of the project and also marketing executive made several promises when the project was progressed, but however the said promises never been fulfilled, such as the complainant has raised the concern about exposed  drainage line that passes right through the balcony and the Opposite party  assured the complainant  that the said problem will be fixed,  will be fixed, however the opposite party had failed to act upon  in spite  of several  requests  made  by the complainant.

5. Complainant submits that, the electric work, plumbing and networking has not been informed stage wise and the same is not intimated in writing or verbally about the progress of these works and outcome of the same were against the comfort and requirement of the complaint.  The complainant made several requests through E-mails to opposite party thereby to request to make some correction however the opposite party had failed to respond.

6. The Cauvery water facility was not provided. Some amenities like skywalk club house, Sona, Indoor games etc., are yet to be completed before handover, but the opposite party has failed to meet the quality standard as agreed in the agreement for sale. The bathroom fittings are promised of ` jaguar` make, however some other brand which is inferior the jaguar has been fitted in the bathroom contrary to the promise made by the opposite party. Complainant submits that apart from the same size and types of toilet fittings are not as per the specifications, thereby opposite party has failed and neglected to discharge the obligations agreed under agreement for sale.

7. Further the balcony grills were promised also shown the model  

of the apartment of wooden grills, however the apartment is   completed it is turned out to be cheap iron grills. The opposite party has failed to address such as common toilets provisions, recharging pits and sizes, warranty for wooden planks and safety concerns security, labs at the fencing wall (which is very short), the complainant has made several requests and demands to fix the aforesaid problems, however the opposite party have failed to discharge its obligations as per the terms and conditions of the agreement for sale.

8. Whenever  the  complainant  raised  such  issues  instead  of   

rectifying the same the opposite party has demanded the balance sale consideration as agreed under the said agreement for sale, even though the complainant is ready and willing to fulfill her obligations towards the terms and conditions of the said agreement, the opposite party without any justifiable cause or reasons whatsoever cancel the booking of the said apartment vide letter dated 06.12.2019 and instructed the complainant for settlement of account.

9. The opposite party has committed serious breach of the terms    

and conditions of the aforesaid agreement for sale. The opposite party is liable to refund the advance amount along with interest and damages as detailed herein below :-

     (i)   Amount paid towards booking charges   : Rs. 8,60,000/-

     (ii)  Interest at the rate of 18% per annum

           From 01.06.2019 to 01.02.2021             : Rs. 2,58,000/-

     (iii) Damages                                                : Rs. 5,00,000/-

                                                            Total     : Rs. 16,18,000/-

                (Rupees Sixteen Lakhs Eighteen Thousand)

10. The complainant had issued the legal notice dated 05.02.2020

      to  the opposite party. It has been duly served.  But the opposite  

      party  has failed and neglected to comply with the terms of  legal  

      notice.  Further the opposite party has issued untenable reply

      to the said  Notice  dated  28.05.2020.

  11.  The complainant further submits that, due  to  the reckless   

 and negligent attitude  of  the  opposite  party, the     complainant  has    suffered  huge financial  loss and also mental agony. Even though,  the  complainant is  ready and willing to discharge  her obligations towards the agreement  for sale, the  opposite party had failed  and neglected to comply with the promises made at the time of entering into  the  said  Agreement  for  Sale, thereby the opposite party has committed  deficiency  of  service, Hence  this  complaint.

 12.   The counsel for the opposite party  had  filed detailed version,

         partly denied  the  averments made by the complainant. It is

         admitted fact  that, the  complainant  had entered  into   the

         Registered agreement of  sale date: 27.05.2019 with         opposite party  for consideration of  Rs.75,39,320/-. And the

complainant made  the partial payment of  Rs. 8,44,404/-.  Despite  of several reminder E-mails for the payment of outstanding amount with respect to the unit the complainant failed to make the same.  The opposite party vide E-mail dated: 06.12.2019 had cancelled the allotment of the complainant.   And issued legal notice to the complainant to come and execute cancellation deed. The opposite party  is also entitled to deduct the cancellation charges at 10%. Therefore, there is no deficiency on part of the opposite party. The complaint  may kindly be dismissed with cost.

 13.  The counsel  for  the complainant had filed  an affidavit in the  

         form of  his  evidene in  chief EX.P1 to EX.P6 are marked. The

         counsel for opposite party had also filed their evidence in chief

         in  the  form of  EX.R1  to  EX.15  are marked. 

 14.  Counsels  for  both the parties had filed their respective written

        Arguments. 

 15.   Heard  the arguments.

 16.  Our findings on the aforesaid points are as follows:

   (1) Whether there is deficiency of service and unfair      trade practice on the part of the opposite parties?

   (2) Whether the complainant is entitle for the 

      relief as sought?

       (3) What order?

17.   Our findings on the aforesaid points are as follows:

POINT NO.1 :  In Affirmative.

POINT NO.2 :  Partly in Affirmative.

POINT NO.3 :  As per the final order for the following;

REASONS

    18. POINT NO.1 :  The PW-1 and RW-1  had reiterated the facts

of the complaint through pleadings, affidavit evidence in chief with documents etc.  There is no dispute regarding the registered agreement for sale dated: 27.05.2019  and  payment of Rs.8,44,404/- in between the complainant and opposite party.  The claim of the complainant is that the opposite party  had not provided  the facilities  and amenities  as prescribed in the  said agreement for sale.  Regarding this the complainant had sent several  E-mail communications to the opposite party but of no use.  Despite of  providing the facilities and amenities claimed by the complainant the opposite party kept on sending E-mails,  reminder letters to the complainant regarding payment of outstanding dues .  This caused mental agony and financial hardship to the complainant. 

   19 :  The counsel  for  the opposite party had   contended that the

           complainant  failed  to  make  the  payment  of  outstanding

           amount towards the unit. The opposite party in compliance of

           clause 9.3 of the said agreement for sale had issued reminder

E-mails and letters intimating the complainant  about his   allotment  of unit has been cancelled for non payment of the outstanding amount due.  And finally cancelled the allotment of the complainant on  06.12.2019 i.e EX.P6.  and called the complainant to come forward for settlement of balance amount if any, after the deduction of  10 % of total  amount paid.  And also issued legal notices to the complainant for execution of cancellation deed in respect of the unit allotted under  the said agreement for sale dated: 27.05.2019.   

      20.  On perusal of the EX.P1 i.e Registered Sale Agreement dated

    27.05.2019, clause 9.2 “In case of default by promoter      under   the conditions listed above, Allottee is entitled to the following:

(i)  Stop making further payments to Promoter as demanded by the promoter. If the Allottee stops making payments, the Promoter shall correct the situation by completing the construction milestones and only thereafter the Allottee be required to make the next payments without any interest; Or

(ii) The Allottee shall have the option of terminating the Agreement in which the Promoter shall be liable to refund the entire money paid by the Allottee under any Head whatsoever, towards the purchase of the Apartment, along with interest at the rate prescribed in the Rules within 45 days of receiving the termination notice.  Provided that where an Allottee does not intend to withdraw from the project are terminate the agreement he shall be paid, by the promoter, interest at the rate prescribed in the Rules. For every month of delay till the handing over of the possession of the Apartment, which shall be paid by the Promoter to the Allottee, within sixty days of it becoming due.

The complainant had made several E-mail communications,EX.P5 to the opposite party about the facilities and amenities were not provided according to the schedule of the registered sale agreement  i.e EX.P1.  The opposite party showed total negligence towards the requests of  the complainant and not provided the claimed amenities and facilities as per the schedule of the agreement for sale. Therefore, the complainant stopped further payments to the opposite party,  as per clause 9.2 of the said registered sale agreement as mentioned above.  Instead of providing the claimed amenities and facilities to the complainant as per the schedule of the said registered sale agreement  the opposite party kept on issuing reminder E-mails and letters for the payment of outstanding amount and finally   cancelled the allotment of the unit of the complainant on 06.12.2019.  This act of the opposite party is unjusticeable  and not maintainable.  Is unilateral one.  This commission has observed on the discussion made above and the materials available  it is   found that  the acts of the opposite party amounts to `` UNFAIR TRADE PRACTICE``  as enumerated U/s 2 (47) CP Act, 2019. And also amounts to  ‘DEFICIENCY OF SERVICE ’’on   part of the opposite party as enumerated U/s 2 (11) of CP Act, 2019 also.  Hence, we answer Point No.1 in affirmative.

POINT NO.2 :  The complainant had made a prayer for the refund of  Rs.16,18,000/-  with interest at the rate of 24% per annum.  As per agreement for sale dated: 27.05.2019  i.e EX.P1,the complainant had paid the partial payment of   Rs.8,44,404/-. towards the total consideration of Rs.75,39,320/-. To substantiate the said payment the complainant had produced registered sale agreement which is marked as EX. P.1 The opposite party had admitted the payment of Rs.8,44,404/- in their written statement.  Therefore, we feel the complainant is entitled for the refund of Rs.8,44,404/- with interest at the rate of  9% from the date of payment dated: 27.05.2019 till realization.  In addition the complainant is entitled for the compensation of Rs. 50,000/- towards  mental agony and financial hardship and to pay litigation cost of Rs.10,000/- Hence, we answer Point No.2 partly in affirmative.     

POINT NO.3 :- In the result, for the foregoing reasons, we  

        proceed to pass the following.

ORDER

                      The complaint is allowed in part.

                   The opposite party is directed to refund the amount of                                                  Rs.8,44,404/- with interest at the rate of 9% from the date of the payment dated: 27.05.2019 till realization to the complainant. 

In addition to the complainant is entitled for compensation of Rs.50,000/- towards mental agony and financial hardship and Rs.10,000/-towards cost of the litigation from opposite party.

                  Supply free copy of this order to both the parties. 

   Opposite party  shall  comply the order within 30 days.  In   

 case, if it fails to comply the order within the said period, the

above said amount of Rs.60,000/-carries interest at  the rate

   of 9% per annum from the date of order till realization.

  Applications pending, if any, stands disposed of in terms   of  the  aforesaid judgment.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open commission on 14^th of June 2023 ).

• REKHA SAYANNAVAR)           (RAJU K.S)                 (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Smt. Praseeja Jayaprakash [PW-1]Complainant has filed his affidavit in the form of her evidence in chief.

Documents marked for the complainant side:

2.Copy of legal notice dt.05.02.2020 EX.P2

3.Reply legal dt. 28.05.2020. EX.P3

4.Certificate U/s 65(B) of Evidence Act EX.P4

5.Copy of E-mail dt.26.01.2020. EX.P5

6.Cancellation of booking of flat through E-mail dt. 6.12.2019. EX.P6

Witness examined for the opposite parties side: 

Documents marked for the Opposite Parties side:

1.Certificate U/s 65(B) of Indian Evidence Act. Ex.R1

2.Xerox Copy of Board resolution. EX.R2

3.Copy of  letter dt. 25.06.2019.EX.R3

4.Copy of letter dt.06.08.2019. EX.R4

5.Copy of E-mails (13 pages). EX.R5

6.Copy of  letter dt. 21.10.2019`.EX.R6

7.Copy of E-mail dt.21.10.2019. EX.R7

8.Copy of  letter dt. 14.11.2019. EX.R8

9.Copy of  E-mails dt. 14.11.2019EX.R9

10.Copy of notice dt.19.02.2020.EX.R10

11.Copy of E-mail  dt. 19.02.2020 EX.R11.

12.Copy of  Legal notice dt. 18.09.2020 .EX.R12

13.Copy of  payment details EX.R13

14.Copy of  Certificate issued by CA dt.06.08.2022 EX.R14

15.Copy of  letter dt. 05.08.2022 and postal receipts. EX.R15

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

arn