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 complete the project and hand over the flat No.708,7^th Floor, Oak Block, in Tower B, in Greens Phase I with all essential services and facilities, within 15 days along with the occupancy certificate, Fire department clearance, E Katha Certificate along with formation of association of allottees and transfer and convey the deed of declaration of common assets etc.
2. To pay compensation for delay on self contribution on Rs.30,00,000/- from date of payment or date of possession as agreement or from 26.05.2014.
3. 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.
4. To order to pay costs of Rs.50,000/-

OR ALTERNATIVELY

In case not completion of the project and handing over the possession, the complainants seeks to exit from the project and seeks to:-

5. To refund a sum of Rs.30,00,000/- along with interest at the rate of 18% per annum from the respective date of payment until payment
6. To pay a sum of Rs.3,00,000/- for mental agony and torture and harassment for deficiency of service.
7. 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 09.01.2015 for total consideration of Rs.30,00,000/-complainants have paid Rs.30,00,000/- by means of cheque. The OP having received full consideration amount of Rs.30,00,000/- failed to execute the registered sale deed in respect of flat No.708.  The OPs have also failed to refund the paid amount despite legal notice dated 06.09.2021.  Hence this complaint.

3. 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.

4. OP1, 3 and 4 admit the execution of agreement of sale and receipt of entire consideration in respect of flat bearing No.708 and receipt of Rs.30,00,000/-. 

5. 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.

6. The complainant has filed affidavit evidence and relies on 8 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.

7. 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?

8. 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

9.     Point No.1 AND 2:  At the first instance we would like to refer the admitted facts.  It is admitted and proved from Ex.P1 that complainant and OPs have entered into an agreement of sale in respect of flat No.708 for consideration amount of Rs.30,00,000/- and receipt of entire consideration amount.  Despite Ex.P2 legal notice, Ex.P3 postal acknowledgement and Ex.P4 postal track consignment, OPs neither executed the sale deed nor refunded the amount.  Ex.P5 is the rejoinder of the complainant which served on the OP.  Ex.P8 is the report of RERA.

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

11.   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.

12.   The complainant seeks a direction against the OPs to refund Rs.30,00,000/- with interest at 18%, compensation of Rs.3,00,000/- and cost of this litigation of Rs.50,000/-.  The OPs having received Rs.30,00,000/- are liable to refund the same. Complainants claim interest at 18% on this amount with compensation of Rs.3,00,000/-.  The complainants are entitled to only 9% interest on the date of payment till realization as compensation 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 respective payments 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.25,000/-. Accordingly we answer point NO.1 and 2.

13.   POINT NO.3: In view of the discussion referred above, OPs are liable to refund Rs.30,00,000/- with interest at 9% p.a., from the date of respective payments till realization as compensation. OPs are also liable to pay Rs.25,000/- 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.30,00,000/- with interest at 9% p.a., from the date payment till realization
3. The OPs shall pay Rs.25,000/- towards cost of litigation.
4. 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.30,00,000/-.
5. 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 :