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

DATED 28^TH DAY OF SEPTEMBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1.         This complaint has filed by the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1. Direct the OP to refund the amount of R.2,00,000/- paid by the complainant along with calculated @ 18% from the date of actual payment till the date of refund of the said amount to the complainant by the OP.
2. Award compensation of Rs.3,40,000/- toward incur of loss on account of the OP i.e., from suffering severe mental agony, humiliation, extreme hardship, conveyance charge, other incidental expenses and further causing deficiency and negligence of service rendered by the OP by not responding to the complainant by their recalcitrant behavior.
3. Towards cost of these proceedings.
4. Grant such other relief.

2. The case set up by the complaint in brief is as follows:

The complainant having agreed to purchase two site from the OP bearing No.1415 and 1416 for total consideration of Rs.1,40,000/- each entered into memorandum of understanding dated 16.11.2014.The complainant having paid Rs.1,00,000/- as advancefor each of the sites and OP has issued receipts for having received the same.

3. It is further case of the complainant that he was ever ready for payment of balance of Rs.80,000/-, but OP kept postponing execution of sale deed and failed to receive the balance consideration. OP renewed Memorandum of Understanding in the year 2015, 2016 and 2017.  When the complainant insisting the OP to execute the registered sale deed by accepting the balance consideration, even though OP agreed to execute the sale deed, but issued a letter demanding payment of extra amount.  The demand of additional amount amounts to deficiency of service.  The OP neither refunded the advanced amount nor executed the ale deed by excepting the balance amount of Rs.80,000/-.  Hence this complaint.

4. In response to the notice, OP appeared and filed version.  The OP contends that the complaint is liable to be dismissed on the ground of non-joinder and misjoinder of the parties.  The OP admits execution of Memorandum of Understanding in respect of sites bearing No.1415 and 1416 for total sale consideration of Rs.1,40,000/- each.  The OP also admits receipt of advance amount of Rs.1,00,000/- in respect of each site.

5. OP contends that even though the OP applied for conversion in November 2016, but government delayed passing conversion order and government was pleased to pass a conversion order only in 2018.  The OP could not complete the project due to delay in conversion order and demonetization. Later on the OP got registered project under RERA act.

6. The OP admits receipt of legal notice dated 10.12.2018.  The OP issued reply dated 18.05.2019 and further letter calling the complainant to pay additional amount of Rs.1,48,000/- for each of the plot towards cost of registration and other charges.  The OP is ever ready to provide even alternative site to the complainant.  There is no delay and deficiency of service on the part of the OP.  Therefore, OP requests to dismiss the complaint.

7. The complainant got filed affidavit evidence and relies on11 documents.   The affidavit evidence of authorized signatory of the OP has been filed.  Heard the arguments of both parties.

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:    These two points warrant the common course of discussion.  Even though both the parties have filed affidavit evidence with reference to their contention raised in the complaint and version, but documentary evidence produced by the complainant is not in dispute.  The complainant not only reiterated the facts pleaded in the complaint in his affidavit evidence, but complainant relies on 11 documents.  It is proved from Ex.P1 to P4 that the OP has received in all Rs.2,00,000/- advance in respect of two plots.  It is also admitted and proved from Ex.P5 that the complainant and OPs have entered into renewal of Memorandum of Understanding in the year 2016 in respect of site No.1415 and 1416.  It is also admitted fact that there was Memorandum of Understanding between both the parties in the year 2014.  Ex.P6 indicates that both the parties got renewed Memorandum of understanding on 20.11.2017 in respect of these two plots.  As per the latest Memorandum of Understanding dated 20.07.2017 the OP was supposed to execute the registered sale deed within 12 months from the date of termination of the agreement by the first party.  It is relevant to note that the OP neither terminated the agreement within 12 months nor refunded the amount, but the OP called upon the complainant to pay additional amount of R.1,48,000/- in respect of each site including balance amount of Rs.40,000/-, R.60,000/- towards water, electricity and STP, R.18,000/- toward GST and additional registration cost of Rs.30,000/-.  The OP issued Ex.P7 reply dated 18.05.2019 and also issued Ex.P8 and P9 dated 27.07.2019 and 16.03.2020 and called upon the complainant to pay the balance amount of Rs.1,48,000/- including earlier balance of R.40,000/- for each of the site.  This act of the OP is unilateral demand amounts to unfair trade practice. Therefore, the complainant is right in calling the OP to refund his advance money.  It is relevant to note that the OP states in the version a well as in the affidavit evidence that OP is ready to execute the sale deed in respect of alternative site.  It means the agreed sites are not available with the OP to execute the registered sale deed.  The complainant has produced Ex.P11 bunch of the photo which indicate that there is no development.  Under such circumstance, the complainant is entitle to refund of advance amount of Rs.2,00,000/-.

11. There is deficiency of service on the part of the OP.  The complainant claims interest at 18% p.a., on advance amount and compensation of Rs.3,40,000/-.  The complainant is not entitled to interest as well as compensation. The claim of the interest at 18% p.a., is not only exorbitant and it is also unreasonable.

12. Time and again Hon’ble Supreme court of India was pleased to award interest at 9% p.a., in such cases from the date of payment till realization.  It is worth to refer the latest decision of Hon’ble Supreme Court of India in 2022(2) CPR(1) in the matter between Experian Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor reported case the Hon’ble Supreme Court of India was pleased to award 9% interest pa., on the paid amount from the date of payment till realization.  Under such circumstance, the complainant is entitled to 9% interest p.a., on Rs.2,00,000/- from the date of payment till realization as compensation. Accordingly we answer point NO.1 and 2.

13. POINT NO.3: In view of the discussion made on point No.1 and 2, the complaint requires to be allowed in part. OP is liable to refund Rs.2,00,000/- with interest at 9% p.a. as compensation from the date of payment till realization.  The OP is also liable to pay Rs.10,000/- towards cost of litigation.  It is proper to impose time limit for payment of award amount. We proceed to pass the following;

O R D E R

1. Complaint is allowed in part against the OP.
2. OP shall refund Rs.2,00,000/- with interest at 9% p.a., from the date of payment till realization with litigation cost of Rs.10,000/-.
3. The OP shall comply this order within 60 days from this date failing which the OP shall pay interest at 12% p.a., on Rs.2,00,000/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties.
5. Return the extra pleadings and evidence to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^th day of September, 2022)

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

Documents produced by the representative of opposite party :  NIL

HAV*