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

DATED 23^RD DAY OF SEPTEMBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

        The complainant has filed this complaint under Section 35 of C.P. Act, 2019 seeking for a direction to the OP for the following reliefs;

1. To refund a sum of Rs.4,76,102/- along with interest at the rate of 18% per annum from the respective date of payment until payment
2. To refund a sum of Rs.11,236/- along with interest at the rate of 18% per annum from the respective date of payment until payment
3. To refund a sum of Rs.4,200/- along with interest at the rate of 18% per annum from the respective date of payment until payment
4. To pay a sum of Rs.3,00,000/- for mental agony and torture and harassment for deficiency of service within 15 days from the date of notice.
5. To order to pay costs of Rs.50,000/- and pass such other order.

2.     The case of the complainants in brief is as under;

The complainants having entered into agreement of sale and construction agreement dated 14.03.2014 for total consideration of Rs.23,80,508/- with the OPs. complainants have paid Rs.4,76,102/-  complainant applied loan of Rs.20,00,000/- from HDFC Bank Limited, by spending Rs.11,236/- towards processing fees and Rs.4,200/- towards loan documents stamp duty.

3.     The OPs failed to refund the amount and also failed to complete the project.  Accordingly the complainants got served legal notice 13.09.2021 but the failure of the OPs made the complainant to file this complaint.

4.     In response to the notice, OP1, 3 and 4 only appeared and filed version.  OP2 failed to appear before this Commission despite receipt of notice and OP2 has been placed exparte.

5.     OP1, 3 and 4 admits the execution of agreement of sale and construction of sale for valuable consideration of Rs.23,80,508/- in respect of flat bearing No.005 of Cedar Block,

6.     These OPs have already made an efforts to complete the project, but 780-800 intending purchasers failed to make payment.  Hence there is delay in completion of project.  They request to dismiss the complaint.

7.     The complainant has filed affidavit evidence and relies on 12 documents.  The affidavit evidence of the authorized person of OP1 has been filed and relied on 3 documents are marked. Heard the arguments and perused the records.

8.     The points that would arise for our consideration are as under:-

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

9. 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

10.   Point No.1 AND 2:  At the first instance we would like to refer the admitted facts.  It is admitted and proved from Ex.P2 that booking form that complainant paid Rs.25,000/- for booking flat No.005.  accordingly Ex.P3 agreement to sell and construction agreement Ex.P4 came to be marked. The execution of these agreements and payment of part of consideration amount Rs.4,76,102/- and Ex.P6 payment receipts.  Ex.P7 loan sanction letter issued by HDFC Bank indicates that the loan amount of Rs.20,00,000/- was approved subject to payment of process fee of Rs.11,236/- and stamp duty Rs.4,200/-. Even though complainant has not produced for having spent Rs.11,236/- and Rs.4,200/- but the say of the complainant about these expenditure is not denied by the OPs.  Ex.P9, 10 and 11 indicate that the complainant called upon the OPs to pay his amount. But despite service of notice the OPs neither repaid the amount nor shown any inclination of completion of the project.  Ex.P12 is the report of RERA.  

11.   There is no material to disbelieve the evidence of complainants and documents of the complainants.

12.   The authorized person of OP1 contends that the delay was caused due to non payment of amount by the intending purchasers labour problem and effect of covid 19.  But these are not acceptable defences of developers like OPs.  Ex.R2 and R3 indicate that review petition o the state of Karnataka is pending before the High Court of Karnataka and Ex.R3 indicates that the OP1 has obtained stay order against the order of RERA.  But these two documents do not help the OPs to dismiss the complaint.

13.   The payment of Rs.4,76,102/- and expenditure of Rs.15,436/- for getting the loan advance has been proved.  The OPs are liable to pay this amount.  The claim of the complainant interest at 18% and compensation of Rs.3,00,000/- are not only exorbitant but also unrealistic. In view of decision of Hon’ble Supreme Court of India, in 2022(2)CPC(1) in the matter between Experian Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor the complainant is entitled to interest at 9% p.a. from the date of payment till realization.  We can award at interest as compensation.  The complainants are not entitled to compensation under separate head.  The complainants have availed services of advocate.  Therefore cost of litigation is quantified at Rs.5,000/-. Accordingly we answer point NO.1 and 2.

14.   POINT NO.3: In view of the discussion referred above, OPs are liable to refund Rs.4,76,102/-  + Rs.11,236/- and Rs.4,200/- i.e., Rs.4,91,538/- interest at 9% p.a., from the date of respective payments till realization. OPs are also liable to pay Rs.5,000/- as cost of litigation.  The complainants are not entitled to any compensation in addition to the interest. In the result, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OPs shall refund Rs.4,91,538/- with interest at 9% p.a., from the date of respective payment till realization and to pay Rs.5,000/- towards cost of litigation.
3. The OPs shall comply this order within 60 days from this date, failing which the Ops shall pay interest at 12% p.a., on Rs.4,91,538/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 23^RD day of September, 2022)

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

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