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

DATED 05^TH DAY OF DECEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. This complaint has been filed by the complainant  

1. To direct the OP to refund the entire sale consideration of Rs.27,00,000/- along with interest at the rate of 18% per annum from respective date of payments till repayment.
2. To direct the OP to pay a sum of Rs.5,00,000/- towards damages and compensation, mental pain and agony.
3. To order to pay cost of Rs.50,000/- and pass such other as this Hon’ble District  Commission deems fit under the  facts and circumstances of the case.

2. The case of the complainants is that:

It is the case of the complainants that due to representation and advertisements made by the OP, this complainants were impressed and agreed to purchase the apartment from the OP and booked apartment bearing no.X-1503 having super built up area of 1740 sq. ft.on fifteen floor. In this regard the complainants have entered into agreement of sale for total sale consideration of Rs.57,24,600/- which included all costs towards undivided interest in the plinth area in the built up area of the building and super built up area of the building. The complainants have also agreed to enter into agreement of construction for total consideration of Rs.41,28,000/- including covered car parking, common area, amenities etc. The price negotiated is exclusion of Stamp duty, Registration fee, service tax/VAT/GST etc., any deposit and consultancy and other charges required to be incurred for procurement of electrical service connection and water and sewage connection, together with any other charges or additional charges payable to these authorities or BDA, BBMP or other Governmental statutory authorities.

It is further grievance of the complainants that the OP at the time of booking had offered a scheme.Wherein, the complainants have to pay 25% of the aforesaid consideration and balance sale consideration was to be paid at the time of handing over the possession of the apartment. As per the offer the complainants have paid sum of Rs.27,00,000/- on various dates. The said amount also admitted by the OP.

It is further grievance of the complainants that as per terms and conditions of the agreement, the OP was liable to complete the project and hand over the possession of the apartment with all the amenities on 30.09.2018, but theyfailed to complete the project and even today the project is not finished and likely to take few more years with active and fully fledged development of the work force to complete the project. Inspite of constantlyfollowed up the construction of the project, it seems the OP are not interested to honor the commitment and adhere to timeline and failed to give any kind service to the complainants by showing bonafide intention to complete the project.

It is further grievance of the complainants that having booked the apartment for the purpose of settling their son into new house soon after completion of his engineering education and paid huge sum of money, but OP have failed to complete the project. These complainants have approached so many banks for the purpose of rising of loan, but came to know that they have block listed the project and refused to finance and OP will not able to complete the project in foreseeable future and the OP failed to share basic documents like approved plan, Occupancy Certificate and other documents. The OP rather than furnishing the copy are only seeking details of bank personal to enable OP to interact with them. They have failedcomplete the projecton time. They have failed to furnish the requisite copy, they have issued emails threatening to cancel the agreement and impose penalty for no fault of the complainants.

It is further grievance of the complainants that OP have not procured any Occupancy certificate and entire project not fully developed. The complainants intended to withdraw from the project and seeks to refund of entire sale considerationpaid along with interest for delay at rate of 18% per annum. The OP were supposed to complete the entire project along with all amenities by 30.09.2018. However,inspite of lapse of nearly 03 years, the project is totally unfinished. Inspite of incomplete project and not providing Occupancy certificate and now the OP have started threatening to terminate the agreement. Hence, the complainants does not intend to continue in the project. Wherein, the OP having failed to discharge their obligation and seeking refund for entire sale consideration along withinterest at the rate of 18%per annum. The complainants have issued legal notice on 18.08.2021 and requested for refund of the money with interest. The OPs have failed to refund the money. Hence, the complainants have filed this complaint.

3. After filing of the complaint, notice was issued to OP. The OP have appeared through their counsel  and filed their version.

4. The OP have raised preliminary objections about maintainability of the complaint. The contention taken by the OP is that the complaint is not at all maintainable. The complainants have instituted this complaint for recovery of money and damages and the said reliefs can only be granted by a competent Civil court after adjudicating the matter on the basis of trial and which would  also require the complainants to pay appropriate court fee and also  filing of this consumer complaint to recover money is nothing but to tactic to circumvent trial and claim relief by avoiding payment of court fee.
5. The OP have clearly admitted about booking of apartment by the complainants  and also agreement entered for sale of undivided share of the land and agreement for construction both dt.17.10.2016. The OP have also admitted about payment made by the complainants towards part sale consideration amount under the ratio of 25:75 scheme. Wherein, the complainants have to pay 25% of the total cost of the apartment excluding maintenance deposit, stamp duty and maintenance charges at the time of booking and balance 75% plus maintenance deposit, stamp duty and registration charges have to be paid at the time of registration of the sale deed.

6. It is specific contention taken by the OP that they have also intend to handing over the possession for interiors and the 1^st OP also applied for Occupancy certificate and is awaiting the grant of the same by the BBMP. He has already obtained fire clearance certificate issued by the Karnataka State Fire and Emergency Services and he has produced the same with application for grant of occupancy certificate dt.04.03.2020. As per clause-6.1 of the agreement of construction, OP has to hand over the possession of completed apartment to the complainants on 30.09.2018 with grace period of additional 12 months thereby extending the date of hand over of possession to 30.09.2019. This hand over of possession was subject to limitations in clause-6.1 and clause-6.4 of the agreement of construction. As per which, based on force majeure  events which were beyond the control of the OP-1. The OP could be excused in the case of  a delay arising from the happening of events contemplated in clause-6.4 in the construction agreement.  The handing over of possession or delivery of the apartment  as per clause-6.1 is subject to variation on account of force Majeure or acts of the God or non-availability of steel, cement or other vital building material, water or electric supply, riot, strike or labour problems etc. or war, civil commotion or any notice, order, rule, notification of the Government and/or  other public or competent authority or any dispute or matter relating the property pending final determination by the court or any other  authority.

7. It is further case of the OP that they have legal hurdles such as issues while excavation, legal issues, license issues. It is further case of the OP, Bengaluru has experienced  very heavy rainfall with flooding over the past several years. Same problem was also faced by the OP at the project site as well. Thus such constant and incessant rainfall and flooding severly hampered the progress of the project  during the monsoon months.

8. Due to crackdown on illegal sand mining, there were several protests by the sand suppliers, which led to delay in the supply of sand,  adversely impact on the progress of the project. These were hurdles faced by the OP, right from the start which evidently had a significantly adverse impact on the progress of the project and there by  prevented it from completing the construction of the apartment within the stipulated time. In addition to this there are several force majeure events demonetization, due to demonetization there were several restrictions in withdrawal of the cash as well as severe crunch in availability of liquid cash to make prompt and timely payment. When the OP slowly recovered from the blow of demonetization,  the OP as well as the entire industry was dealt in another blow i.e. implementation of GST in July 2017. Adding to this the OP has faced problems and challenges of due to COVID-19 pandemic and the consequent lockdown also leads to inevitable delay and hurdles in the progression of completion of the project.

9. It is further case of the OP that due to such obstacles  the OP has called upon the complainants to pay 75% of the value of the constructed apartment plus maintenance deposit, stamp duty and registration charges. Inspite of sending multiple reminders by the OP to the complainants calling upon  them to make payment of the balance amount come forward for execution of registered sale deed and take possession of the apartment unit, but the complainants have neither responded to the remainders  nor they have made any payment of the balance amount. The complainants inspite of making balance payment have sent legal notice on 18.08.2021 to this OP as counter to the final reminder making false, evasive and untenable allegations that the construction has not completed and they have demanded refund subsequent to the OP called upon them to make payment of the balance amount and come forward to complete the sale formalities. They cannot allege that this OP did not complete the project. There will be delay  caused due to several force majeures  which are beyond the control of the OP. Hence, OP prays to dismiss the complaint.

10. Complainant no.1 is examined and filed his affidavit evidence and relied on Ex.P1 to P9. On the other hand the authorized signatory of the OP company has filed his affidavit evidence and relied on exhibits R1 to R4.

11. Both the complainants and OP have filed written argument along with decisions. After hearing arguments, perused documents. Case is posted for orders.

12.  The following points do arise for our consideration:-

1. Whether the complainant has proved the  deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs claimed in the complaint ?
3. What order?

13. Our answer to the above points are as under:

       Point No.1:- Affirmative

      Point no.2:- Affirmative in part

      Point No.3:-As per the final order.

REASONS

14. Point No.1 and 2: Perused the complaint, version and documents produced by the parties and written arguments and oral arguments  submitted by the both parties.

15. It is undisputed fact that when the complainants have booked the flat in the project by name Mantri Webcity at Nagenahalli village, Bengaluru.

16. The complainants have booked the apartments bearing No.X-1503 on the  15^th floor of the said project. After that the complainant has entered into agreement of sale and also for agreement of construction with the OP on 17.10.2016. The complainants have booked their apartment under the ratio of  25:75 scheme. Wherein the complainants have paid 25% of the total cost excluding the   stamp duty, registration charges and they have to pay balance 75% amount at the time of registration of the sale deed. The complainants in support of their contention have also produced copy of the sale agreement as Ex.P1 and copy of construction agreement as Ex.P2. The complainants have also produced copy of email correspondences  as per Ex.P3 and copy of account statement as per Ex.P4. The complainants have paid total amount of Rs.27,00,000/- as per agreement. The OP has to complete the construction and he has to hand over the possession of the apartments with all the amenities by 30.09.2018. Even though the OP has received entire amount of Rs.27,00,000/- as per ratio of  25:75 scheme, they have failed to complete the project. Even at the time of  filing of this complaint the OP have not completed the project. When the OP has failed to complete the project and handed  over the apartment, the complainants have also got issued legal notice as per Ex.P7. The said notice was served on the OP  as per postal track consignment Ex.P9. The OP neither complied the notice nor replied.  On this ground the complainants have approached this commission with direction to the OP to refund entire sale consideration of Rs.27,00,000/- with interest at 18% p.a. Further he has to pay Rs.5,00,000/- towards damages and  cost of Rs.50,000/-.

17. On the other hand, the contention taken by the OP is that as per clause-6.1. of the agreement of construction the OP has to hand over the possession of the completed apartment  to the  complainants on 30.09.2018, when grace period of additional 12 months is added they have to handed over the possession to the complainants on 30.09.2019. It is also contention taken by the OP that if there is any delay arising from the happenings as contemplated in clause-6.4 of the agreement of construction the handing over of the possession of the apartment subject to variation on account of force majeure or acts of God or non availability of steel etc. It is specific contention taken by the OP that even though he got several legal hurdles  relating issues while excavation, legal issues, license issues, financial issues he has completed the project. He has called upon the complainant to take the possession of the apartment by paying balance amount, but the complainants instead of taking possession of the apartment, they sent legal notice on 18.08.2021 claiming refund of   amount. It is the specific contention taken by them that they  have already completed the construction of  complainants unit and intimated them to get sale deed registered  in their favour by  paying balance amount due by them. The complainants never  turned up to take their possession.  Under these circumstances, he is not liable to pay interest,   damages in favour of the complainants.  The OP, in support of his contention has examined one of his authorized signatory RW1 and relied on 03 documents Ex.R1 board resolution copy, Ex.R2 copy of the  application for allotment and Ex.R3 application to BDA for grant of Occupation Certificate, Ex.R4 copy of Fire clearance certificate.

18. It is clear from the documents produced by the complainants  which are admitted by the OP that as per the agreement Ex.P1 and P2, the OP has to deliver the possession of the property with all amenities  by 30.09.2018. Even, if it is extended, the OP has to deliver the possession of the apartment within 30.09.2019. The complainants have approached this commission by filing this complaint on 03.12.2021 after lapse of 03 years. The OP has taken several contentions in order to explain the delay. On these contentions we have gone through  decisions cited by the complainants and the OP.

19. The complainants  have relied on the recent decisions of Hon’ble Supreme Court of India in 2022 Live Law (SC) 36, it is clearly held by Hon’ble Supreme Court that upheld the commission’s order insofar as it directed the Developer to refund the amounts paid by the Consumer with interest  for the unjustifiable delay in delivering the apartment. On law, we have considered the interplay between the judicial remedies under the Act and the Real Estate (Regulation and Development) Act, 2016 and have explained the remedial choices of a consumer under these statutes. We have held that the commission created under the Act has the power to direct refund under section 14 of the Act. We conclude that the Act has the power to direct refund under section 14 of the Act. We conclude that the Act and the RERA Act neither exclude nor contradict each other and they must be read harmoniously to subserve their common purpose.

20. The Hon’ble Supreme Court has dismissed the appeal preferred by the respondents against the order passed by Hon’ble National Consumer Commission. The Hon’ble Supreme Court, which clearly held that consumers  can also  seek for alternative prayer in the complaint and  he also make prayer for both reliefs that refund of the amount and also for alternative he can seek for possession of the apartment. On the other hand the OP also relied on the decision, this decision is with respect to award of the interest by the consumer commission while ordering for  refund of deposit amount.

21. It is clear from the the contention taken by the OP that they have not yet received  completion certificate from the competent authorities and it is still pending before the competent authorities.  They have obtained Fire clearance certificate  as per Ex.P4. Ex.P3 is application given to BDA for grant of Occupation certificate. As per Ex.P1 & P2 the OP has to give possession of the apartment with all amenities on or before 30.09.2018. Even though they taken extension of  12 months, the OP has to deliver the  possession  with all amenities within 30.09.2019. When the OP  has failed to get all the clearance certificates even in the year 2021, the complainants  have approached this commission by filing this complaint seeking for refund of the amount. The complainants cannot be made to wait for an indefinite period to get possession of the apartment with all amenities after paying huge amount of Rs.27,00,000/-. The OP have executed agreement in the year 2016, but they are unable to deliver the possession of the flat till filing of this complaint. If the OP has completed the construction and offered the same for the complainants for execution of the registered sale deed nothing prevented them from filing documents before the commission. The OP has taken this contention that they have offered the complainant to come up for registration of the sale deed by paying balance amount only at the time of filing of version before this commission and not earlier. When the OP have filed to perform their part of contract as per the  agreement, the complainant has forced to approach this commission by filing this complaint. Hence, these complainants are entitled for relief. When the OP have failed to perform obligation under  Ex.P1 and P2 and fail to hand over the possession of apartment within a stipulated period fixed in Ex.P1 & P2. It amounts to  deficiency of service and also unfair trade practice. Hence, the complainants have clearly established deficiency of service  and unfair trade practice on the part of the OP. Therefore,  the complainants are entitled for the reliefs claimed in this complaint. Hence, the complaint is liable to be allowed in part. Hence, we answer point no.1 in the affirmative and Point no.2 partly in affirmative.  

22. Point no.3:  In view of the discussions on point no.1 & 2 the complaint is liable to allowed in part.  Hence, the complainants are entitled for refund of entire amount of Rs.27,00,000/- with interest at the rate of 10% per annum from the date of complaint.  Further OP is to be directed to pay  compensation of Rs.3,00,000/- toward damages and mental agony, financial loss suffered  by the complainants. In  addition the complainants are also entitled to litigation expenses of Rs.10,000/-. The OP is directed to pay entire amount in favour of the complainant within 60 days from the date of this order.  Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund entire amount of Rs.27,00,000/- with interest at the rate of 10% p.a. from the date of complaint till realization.
3. The OP further directed to pay compensation of Rs.3,00,000/- towards damages,  mental suffering  and financial suffering and deficiency of service.
4. The OP further directed to pay Rs.10,000/- towards litigation expenses.
5. If the OP failed to pay the amount within 60 days, the amount of  Rs.27,00,000/- will carry additional interest at 12% p.a. after expiry of 60 days .
6. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 05^th  day of December, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :