Date of Filing:04.11.2022

Date of Disposal:29.04.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,  PRESIDENT

1. The complainants files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OP to repay a sum of  Rs.2,00,000/- along with interest at 18% p.a. and pay Rs.1,00,000/- for damages, mental agony, Rs.50,000/- for legal expenses and such other reliefs.

2.   The following are the complaint's key facts: 

The complainant has approached the OP builder, who is in the business of construction of apartments in the name and style ofShree & Shree Builders and Promoters. It is also evident from the records produced that the OP being the builder, they have started one housing project for the construction of the apartment in the name and style of PSR Krish Kamal at Bengaluru. The complainants who  intends to purchase one apartment in the said project, he approached the OP on 27.03.2022 and booked the flat bearing no.103 on the 1^st floor  and along with all basic amenities for a total sale consideration of Rs.71,00,000/- and the complainant has also paid an advance amount of Rs.1,00,000/- on the same day by way of cheque. Thereafter, the OP has insisted and demanded the complainant to pay a sum of Rs.20,00,000/- towards part sale consideration amount pertaining to the purchase of said apartment and it is also agreed for sale consideration. The OP has promised to arrange for financial assistance from the State Bank of India for a sum of Rs.50,00,000/-. As per demand of the OP the complainant has paid a sum of Rs.20,00,000/- on 30.03.2022 as mentioned below.

1. A sum of Rs.7,00,000/- by why of cheque dt.30.03.2022 drawn on State Bank of India.
2. A sum of Rs.6,00,000/- by way of cheque dt.30.03.2022 drawn on State Bank of India.
3. A sum of Rs.4,00,000/- by way of cheque  dt.30.03.2022 drawn on Punjab Nation Bank, Bengaluru
4. A sum of Rs.3,00,000/- by way of cheque drawn on ICICI Bank, Bengaluru, Electronic City branch.

3.  Upon receipt of the same, OP has entered into sale agreement with the complainant  on 02.04.2022 and the complainant has also provided all the required documents for the home loan  sanction of Rs.50,00,000/-. Subsequently, on 20.05.2022 the complainant received letter from the State Bank of India, wherein the bank has offered and agreed to facilitate home loan only to an extent of Rs.29,17,000/-. The complainant got shocked and the same was intimated to the OP by way of letter. Subsequently, the bank has refused to sanction a loan of Rs.50,00,000/- and only agreed to sanction a loan of Rs.29,17,000/-.  The complainant was unable to arrange for the remaining balance amount from any of his sources. On which the complainant expressed his inability to purchase the said property and sought for cancellation of the sale agreement and requested to refund the advance amount paid to the OP.  The OP neither complied the request of the complainant nor refunded the said amount. After making all efforts finally the OP has agreed to refund the sum on 01.09.2022 and the OP has paid a sum of Rs.19,00,000/- only by way of cheque and the OP has deducted a sum of Rs.2,00,000/- out of the  said advance amount. The complainant got issued legal on 30.09.2022 demanding the OP to refund Rs.2,00,000/-. After receipt of legal notice OP did not come forward for refund of the amount, but replying the notice by denying to pay the amount by saying one or another reason. Aggrieved by the act of the OP, the complainant filed present complaint.

4. Notice to OP-duly served, by remaining absent they have placed ex-parte.

5.  The complainant filed chief-examination affidavit along with relevant in support of his contention.

6.  Heard arguments. The matter is reserved for order.

7.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

8. The findings on the above points are as under:

Point No.1                :       Affirmative

Point No.2                :       As per final order

REASONS

9. POINT NO.1:-  From the perusal of the chief examination affidavit, wherein the complainant has reiterated the complaint averments as well as allegations as against OP. On observation, it is found that the complainant has approached the OP builder, who is in the business of construction of apartments in the name and style of  Shree & Shree Builders and Promoters. It is also evident from the records produced that the OP being the builder, they have started one housing project for the construction of the apartment in the name and style of PSR Krish Kamal at Bengaluru. The complainants who  intends to purchase one apartment in the said project, he approached the OP on 27.03.2022 and booked the flat bearing no.103 on the 1^st floor  and along with all basic amenities for a total sale consideration of Rs.71,00,000/- and the complainant has also paid an advance amount of Rs.1,00,000/- on the same day by way of cheque. Thereafter, the OP has insisted and demanded the complainant to pay a sum of Rs.20,00,000/- towards part sale consideration amount pertaining to the purchase of said apartment and it is also agreed for sale consideration. The OP has promised to arrange for financial assistance from the State Bank of India for a sum of Rs.50,00,000/-. As per demand of the OP the complainant has paid a sum of Rs.20,00,000/- on 30.03.2022 as mentioned below.

1. A sum of Rs.7,00,000/- by why of cheque dt.30.03.2022 drawn on State Bank of India.
2. A sum of Rs.6,00,000/- by way of cheque dt.30.03.2022 drawn on State Bank of India.
3. A sum of Rs.4,00,000/- by way of cheque  dt.30.03.2022 drawn on Punjab Nation Bank, Bengaluru
4. A sum of Rs.3,00,000/- by way of cheque drawn on ICICI Bank, Bengaluru, Electronic City branch.

10.  Upon receipt of the same, OP has entered into sale agreement with the complainant  on 02.04.2022 and the complainant has also provided all the required documents for the home loan  sanction of Rs.50,00,000/-. Subsequently, on 20.05.2022 the complainant received letter from the State Bank of India, wherein the bank has offered and agreed to facilitate home loan only to an extent of Rs.29,17,000/-. The complainant got shocked and the same was intimated to the OP by way of letter. Subsequently, the bank has refused to sanction a loan of Rs.50,00,000/- and  only agreed to sanction a loan of Rs.29,17,000/-.  The complainant was unable to arrange for the remaining balance amount from any of his sources. On which the complainant expressed his inability to purchase the said property and sought for cancellation of the sale agreement and requested to refund the advance amount paid to the OP.  The OP neither complied the request of the complainant nor refunded the said amount. After making all efforts finally the OP has agreed to refund the sum on 01.09.2022 and the OP has paid a sum of Rs.19,00,000/- only by way of cheque and the OP has deducted a sum of Rs.2,00,000/- out of the  said advance amount. All these facts are not at all disputed by the OP. The entire transaction took between the parties is supported by annexure documents produced herein. Annexure C-1 is the sale agreement entered into between the complainant and OP, wherein the OP has acknowledged the payment of Rs.21,00,000/- towards part sale consideration of the said flat and also agreed to pay balance sale consideration as per the terms of agreement.

11. From the perusal of the fact of the complaint, it is evident that the OP has received a sum of Rs.21,00,000/- from the complainant towards advance sale consideration pertaining to the purchase of said flat. When the complainant fail to arrange for the remaining sale consideration amount, he sought for cancellation of the agreement and also sought for the refund of the advance amount which was paid towards advance sale consideration amount. When the OP has agreed and refunded a total sum of Rs.19,00,000/- by deducting Rs.2,00,000/- amount and the OP has neither  rendered explanation nor assigned any reason for the deduction of a sum of Rs.2,00,000/- out of total advance amount of Rs.21,00,000/- which was paid, by this deduction of Rs.2,00,000/- appears to be unilateral decision which was taken by the  OP. The OP has also fail to explain why he has deducted a sum of Rs.2,00,000/- while he refund Rs.19,00,000/- to the complainant. In the absence of any explanation for the deduction of the said amount, the act and action of the OP amounts the arbitratory in nature, which is against the principles of settled law. Such action of the OP could be termed as a careless and negligent in nature. The OP has acted in an illegal manner and deduction of Rs.2,00,000/-, there is no legal sanctity in the eye of law. For the act and the action of OP cannot be justified as per the provisions of law. When such being the case, the act of the OP could be termed as a deficiency of service on their part. For which they are held liable to refund balance advance amount of Rs.2,00,000/- along with other reliefs which is granted in the complaint. In view of the above discussion, the Point No.1 we answer Partly in Affirmative.

12. POINT NO.2:- In the result, we passed the following:

                             ORDER

1. Complaint is allowed in part.
2. The OP is   directed to refund Rs.2,00,000/- along with interest at the rate of 8% p.a. from 01.09.2022   till refund is made  to the complainant.
3. The OP is   further directed to pay a sum of  Rs.5,000/- as compensation towards deficiency of service and Rs.5,000/- towards litigation charges. OP fails to comply the order within 45 days from the date of order, compensation amount and cost of litigation shall  carry interest at 6% p.a. for non-compliance of the order.
4. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 29^th April 2023)

(RAMACHANDRA M.S.)

PRESIDENT

       (NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

                 MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Dr.Kishalay Banerjee-who being the complainant No.2

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Nil

Documents produced by the OP: Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*