Date of filing: 22.03.2021

Date of Disposal: 28.06.2023

BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 28^th DAY OF JUNE, 2023

CONSUMER COMPLAINT NO.262/2021

PRESENT:

SRI. SHIVARAMA,K:

SMT. Rekha Sayannvar: MEMBER 

1.   Sri. Karnath Ravishankar Nair,

S/o Late. Mele Parambhotil

Kunjunni Nair,

Aged about 73 years,

Presently R/at No.503, A-2,

Malaprabha National Games

Housing Complex, Koramangala,

(Sri. Unnikrishna. M, Advocate)

2.   Smt. Mullasseri Indira,

W/o Karnath Ravishankar Nair,

Aged about 65 years,

Presently R/at No.503, A-2,

Malaprabha National Games

Housing Complex, Koramangala,

 V/s

1. M/s. Lavisa Infrastructures Ltd.,

At No.17, 1^st Floor,

Sankey Road,

Rep. by its Director,

Sri. Swaraj Kiran Sinha.

2. Sri. Swaraj Kiran Sinha,

Director of M/s. Lavisa

Infrastructures Ltd.,

At No.17, 1^st Floor,

Sankey Road,

(Sri. Karthik.B.Y., Advocate

Opposite party No. 1 &2).

******

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

      The complainant has filed this complaint u/s 35 of the Consumer Protection Act-2019 seeking for a direction to the opposite party No. 1 & 2 to refund a sum of Rs.9,27,000/- with interest at the rate of 18% per annum and such other relief as this commission deems fit in the circumstances of the case.

      2.  It is the panorama of the complainants that under the memorandum of understanding dated: 22.11.2011 and an agreement of sale dated: 10.02.2012 the complainant in total had paid a sum of Rs.9,27,000/- and the opponent in terms of the agreement of sale dated: 05.01.2015 agreed to convey the house site.  Since, the opponent did not complete the development of the property, the complainants were constrained to issue legal notice dated: 15.10.2020 and opposite party had replied to the notice on 02.11.2020.  Since, the opponent did not develop the property as assured, the present complaint came to be filed.

      3.  It is the case of opponent that the opposite parties under took to execute the sale deed once katha been obtained.  Further, because of several reasons, the development has not been taken place.  Hence, there is no deficiency in service on the part of the opposite parties.        

      4.  To prove the case, the complainant No. 1 (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P6 documents.  Counsel for the Complainant has filed written arguments.

      5.  Heard the Arguments of the counsel for the complainant.

      6.  The points that would arise for consideration are as under:

i) Whether there is deficiency of service on the part of the opposite party?

    ii) Whether the complainant is entitled for the relief 

        as sought ?

     iii) What order?

 7.  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

      8. POINT NO.1:- PW1 has reiterated the fact stated in the complaint in the affidavit filed in the form of his evidence in chief.  To prove the memorandum of understanding been executed and the agreement of sale been executed. PW-1 has produced Ex.P2 to P4 documents.  There is no dispute with regard to the payment of a total sum of Rs.9,27,000/- and it appears in Ex.P3 agreement of sale dated: 10.02.2012.  In Ex.P4 agreement of sale executed on 05.01.2015 the opponent has undertaken to complete the residential layout by carving out the residential sites with sewerage connections within 36 months from the date of approval of the plan or 48 months from the agreement.  Admittedly within the said period the project has not been completed.   

      9.  It is the contention of the learned counsel for the opposite party as averred in the version filed on 28.07.2021 that the opposite party undertook to execute the sale deed once katha been obtained. We feel the said undertaking is an indefinite one and it is only an hypothesis.  Hence, there is no merit in the said contention.

      10.  It is the further contention of the learned counsel for the opposite party as asserted in the version that due to the declaration of demonetization by the Central Government in the year 2016 the real estate sector has been fallen down.  Further, due to covid-19 pandemic there were migration of labourers.  Further, several prospective purchases turned defaulted.  Hence, the delay has been caused.  This complaint was filed on 22.03.2021.  In the agreement executed in the year 2015 itself the opponent has undertaken to complete it within 48 months.  The said 48 months expires in the year 2019.  Even on the date of version filed in the year 2021, the project has not been completed and still opposite party undertook to execute sale deed as once katha been obtained.  Hence, we feel the reason given by the opponent is not sufficient to exonerate the delay. 

      11.  It is the further contention of the learned counsel for the opponent that the service of the opponent does not come within the per view of service.  We feel Section 2(42) of CP Act 2019 contemplates with regard to service and since the opponent is a developer and does the housing construction activities, the service offered comes within the meaning of this provision.  Hence, there is no merit in the contention.

      12.  It is the further contention of the learned counsel for the complainant that the reason shown by the opponent is not a convincing one.  Further, the opponent did not approach the complainants by saying that the project has been completed.  We feel there is merit in the contention.  Further, the opponent did not adduce any evidence in contrary to the evidence of the complainant.  Hence, the unchallenged evidence is sufficient to attribute the deficiency in service on the part of opposite party.  Hence, non-completion of the project as assured, amounts to deficiency in service as contemplated u/sec 2(11) of CP Act 2019.  Accordingly, we answer this point in affirmative.                       

      13.  Point No. 2:- Admittedly in total the complainants have paid a sum of Rs.9,27,000/-.  It is the contention of the learned counsel for the opponent that as per sale agreement 30% of the sale consideration towards expenses could be deducted.  The said clause is applicable only in case of emergency cancellation of the agreement by the purchaser.  Hence, there is no merit in said contention.  It is the contention of the learned counsel for the complainant that complaint No. 1 is a retired officer of Indian Army and had spent the hard earned money carefully saved in the course of his service to have a dream house and the same has not been materialized.  Hence, the complainant is entitle for refund of full amount paid since there is no hope of getting the site developed by the opponent. 

      14.  We feel the complainant is entitle for the refund of the amount of Rs.9,27,000/- with interest at the rate of 9% per annum from the date of payment till  realization.  The 18% rate of interest claimed is highly exorbitant one.  Further, for the mental agony and hardship under gone because of the act of opposite party, the complainants are entitle for a sum of Rs.20,000/- and the activity of the opponent made the complainants to get issued legal notice vide Ex.P5 and to approach this commission, there by the complainants are entitle for a sum of Rs.10,000/- towards litigation cost.  Accordingly, we answer this point partly in affirmative.

      15. POINT No.3:- In view of the discussions made above, we proceed to pass the following;

      Complaint is allowed in part.  The Opposite Party No. 1 & 2 are jointly and severally liable to refund the amount of Rs.9,27,000/- with interest at the rate of 9% per annum from the date of payment till realization and to pay a sum of Rs.20,000/- towards mental agony and sum of Rs.10,000/- toward litigation cost. 

      2.  The opponent shall comply the order within 30 days from the date of order.  In case the opponent fails to comply the same within the above said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% per annum from the date of order.

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

      4.  Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

(Dictated to the Typist to online computer and typed by him and corrected and then pronounced in the open Commission on 28^th day of June, 2023)

(Rekha Sayannvar)(SHIVARAMA, K)             

   MEMBER                                                       PRESIDENT

//ANNEXURE//

Witness examined from the side of complainant:

Sri. Karnath Ravishankar Nair, the complainant (PW-1).

Documents marked from the side complainant:

Witness examined from the side of opposite party:   

- Nil -

Documents marked from the side of Opposite Party:

- Nil –

(Rekha Sayannvar)(SHIVARAMA, K)