BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 23^RD DAY OF JANUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP1 and 2 to refund the entire amount of Rs.8,87,017/- which includes amount paid to OPs, interest charged and loan processing charges collected by the bank and to pay future interest at the rate of 18% p.a., from the date till realization.
2. Direct the OPs to pay a sum of Rs.5,00,000/- only towards compensation for deficiency of service, mental harassment, monitory loss caused to complainants.
3. Direct the OPs to pay the cost by this proceedings.
4. Pass such other orders.

2. The case set up by the complainant in brief is as under:-

The OP1 is a registered company and OP2 is its director, they are carrying on business of developing lands into multistoried apartment complex. OP3 to 6 are the owners of the land and OP6 is a partnership firm of OP1, said to be the unit managing and looking after the sports club developed for the benefit of members of the apartment complex.

3. The complainants were impressed by the advertisements given by the OP1 and 2 in the social media have agreed to purchase the flat No.405, having super built up area of 370 sq. feet and carpet area of 247 sq.feet in B Block along with covered car parking area in the multi storied building complex, known as Five Rings to be constructed by the OPs in the converted land. The complainant entered into a sale agreement with OP1 to 4 on 12.07.2018. Towards the amenities of membership of sports club and utilization of club facility and separate agreement was entered into between the complainants and OP6 on 19.07.2018. The total amount of purchase of flat and club membership is Rs.16,51,130/- exclusive of service charge/GST registration charges, stamp duty. The total cost for purchase of flat shall be paid based on the progress of the work i.e., in face manner. The complainant opted for loan from the bank for purchase of the aforesaid flat and he has processed his loan application with YES Bank and the same has been approved and bank sanctioned Rs.25,00,000/- as loan. After sanction of the loan a tripartite agreement dated 25.09.2018 has been entered between the YES bank, OP1 and 2 and the complainants.  As per the mutual understanding under the agreement on behalf of the complainants the bank shall pay the remaining installment amount for purchase of the flat on behalf of the complainants as agreed based on the progress of developmental work. It was further mutually agreed that interest payable on the loan amount during the construction period i.e., still the end of December 2020 on which date agreed to deliver possession by conveying the same shall be paid by OP1 and 2 on behalf of the complainants directly to the bank and thereafter it is the obligation on the complainants to pay the EMI.  The complainants have opted for electronic clearing system for payment of future EMI.

4. As per the agreed terms and understanding OPs shall finish the construction and convey the title of the flat and deliver vacant possession of the same to the complainant either at the end of the December 2020 or within grace period of six months ending on June 2021. But the OPs have failed to complete the construction and the construction is in the preliminary stage itself as at the end of agreed period and the same is continuing till date. The complainants have paid booking amount of Rs.51,00,000/- and also paid a sum of Rs.41,464/- and they have totally paid an amount of Rs.7,49,545/-, even after payment of the said amount there is no progress in the construction and it was stopped in the year 2021. The OPs have constructed only about four floors structure only. When the OPs 1 and 2 have failed to construct the construction even after grace period, the bank has stopped releasing further loan amount and on the contrary recovering loan EMI from the account of the complainant NO 1 every month. The total loan amount including interest due to the bank as on June 2022 is Rs.8,87,017/-.
5. It is pertinent to note here that the amount claimed by the complainant under the head payment made by the bank from the loan account to OP1 and 2 Rs.6,57,081/- and interest paid till June 2022 by the complainant to the bank on loan is Rs.1,19,858/- are deleted as per the order passed by this commission. Hence the complainant has claimed only Rs.1,10,078/-.  

6. When the OPs have failed to continue the construction and there was no progress in the construction of flat the complainants have approached the OPs with a request to cancel the agreement and refund the entire amount paid till date along with interest and damages as detailed in the agreement. When the OPs have failed and neglected to pay the money as assured and postpone the same without any valid reasons the complainants have also filed complaint before the RERA authority at Bangalore on 24.10.2021 which is registered in 211201/0008660 on 1^st December 2021 and it is pending for consideration.

7. The OPs are obligated to complete the project and convey the property as agreed the OPs have deliberately failed to discharge their obligation leading to deficiency of service. The act of the OPs is nothing but cheating. In view of this the complainants have suffered monitory loss and underwent lot of mental agony. Hence the complainant have approached this commission.

8. In response to the notice, OP appeared before this commission, but the OPs failed to file the version even after lapse of 45 days.

9. Though the sufficient time was given to both the parties to lead their evidence, they have not appeared before this Commission to lead their evidence, nor they have addressed any arguments before this commission. Hence the evidence and arguments of both the parties are taken as nil.

10. The following points arise for our consideration as are:-

1. Whether the complaint is maintainable?
2. Whether the complainant proves deficiency of service on the part of OP?
3. Whether the complainant is entitled to relief mentioned in the complaint?
4. What order?

11. Our answers to the above points are as under:

Point No.1      :  Negative

Point No.2 & 3: Do not survive for

       consideration

Point No.4: As per final orders

REASONS

12. Point No.1: The complainant has filed this complaint to direct the OP1 and 2 to refund the entire amount of Rs.8,87,017/- with future interest @ 18% p.a., and further direct the OP to pay a sum of Rs.5,00,000/- towards compensation and for cost and other reliefs.

13. The complainant is claiming the reliefs alleging that these complainants have entered into agreement for purchase of the flat with OP1 and they have availed loan from M/s YES Bank and entered into Tripartite Agreement dated 25.09.2018 with YES Bank and OP1 wherein the complainants have authorized the bank to disburse the loan amount basing on the stage of completion of work. Accordingly the YES Bank has released a sum of Rs.6,57,081/- out of the loan amount sanctioned to the complainants. Hence the complainants have claimed a total amount of Rs.8,87,017/- with interest and also compensation from the OP.

14. It is pertinent to note here that during the admission our Predecessor in this Commission has passed an order stating that

According to the complainant Rs.6,57,081/- and interest there on Rs.1,19,858/- are payable to the YES bank.  YES bank is not party to this proceedings.  The complainant has not paid amount under these two items to the YES bank.  Without payment complaint cannot be proceed.  Complainant is directed to amend the complaint by deleting claim of Rs.6,57,081/- and Rs.1,19,858/-.  For amendment of complaint by 02.08.2022.

15. After passing of the order the complainant has not amended the complaint.  Hence this commission has directed the office to carry out the amendment by delete the claim in the prayer of the complaint as per the aforesaid order and further posted for admission.  After that the office has carried out the amendment in the body of the plaint relating to calculation part and deleted Rs.6,57,081/- and Rs.1,19,858/- out of the amount claimed by the complainant Rs.8,87,017/-.  The complainant has filed an application to implead YES bank u/o 1 rule 10 CPC. The complaint was admitted after deleting the aforesaid amount of Rs.6,57,081/- and Rs.1,19,858/-. Inspite of taken sufficient time the complainant has neither paid the process for issue of notice to the YES bank and also failed to proceed with the complaint by taking proper steps.

16. The OP1 to 6 have appeared before this Commission through their counsel and failed to file their version within 45 days and hence this commission has rejected the version filed by the OP1, 2 and 6 after lapse of 45 days.  The OP3 and 5 have not filed their version.

17. After that this commission has posted the matter for affidavit evidence of the complainant. When the complainant has failed to lead any evidence, this commission has posted the matter for evidence for OP and when both the parties have failed to lead their evidence and submit arguments, this commission has posted the matter for orders.

18. It is pertinent to note here that the complainant has not proceed with the complaint alleging that they have preferred the appeal in A.No.2128/2022 aggrieved by the order passed by this commission at the time of admission on 05.08.2022.

19. When the complainant has failed to carry out the amendment as per the orders of this Commission the amount claimed by the complainant is not at all clarified, whether the complainant is claiming the total amount of Rs.8,87,017/- or the claim of the complainant is restricted to Rs.1,10,078/- after deletion of Rs.6,57,081/- i.e., the payment claimed by the complainant stating that the payment made to the YES bank from the loan account to OP1 and 2 and Rs.1,19,858/- the interest paid till June 2022 to the complainant to the bank on loan.

20. This commission has not at all received any stay order from the Hon’ble State Commission in A.No.2128/2022 and not at all received any order from the Hon’ble State Commission till today. The complainant remained absent and he has not at all informed the stage of the proceedings or any order passed by the Hon’ble State Commission in A.No.2128/2022. When the very prayer of the complainant is restricted to Rs.1,10,078/- out of Rs.8,87,017/- this commission cannot consider the main relief claimed by the complainant.

21. The complainant has also seriously disputed about the order passed by this commission on 05.08.2022 for deleting the prayer for recovery of sum of Rs.6,57,081/- and Rs.1,19,858/- which are the payments made by these complainants through the YES Bank account. If these prayers are deleted the very purpose of filing the complaint will not be survive and it is the major part of the amount that they are claiming from the OPs.

22. The complainant have lost interest in prosecuting this complaint after the order passed by this commission for deleting the major claim of the relief.  This commission also not at all received any order from the Hon’ble State Commission in the appeal filed by the complainant.  The complainants have also not produced any documents to show the stage of the appeal which is pending before the Hon’ble state Commission in A.No.2128/2022.  The complainant has not complied the orders of this commission for deleting the prayer and to implead the YES bank as a party to the proceedings. In addition to this the complaint filed by the complainant before the RERA authority in complaint CMP No.211201/0008660 on 1^st December 2021 is still pending for consideration. The complainant without taking any permission from the RERA authority are withdrawing the complaint has filed this complaint before this Commission. Under all these circumstances, the relief claimed by the complainant is not at all maintainable and liable to be rejected. Hence we answer point No.1 in Negative and Point No.2 and 3 do not survive for consideration.

23. Point No.4:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is hereby rejected as not maintainable.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 23^RD day of JANUARY 2024)