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Soma Chandra & Another v/s Vishwanath Kumar, Proprietor, M/s. Adithi Landscaping & Constructions, Bengaluru

    Complaint Case No. 452 of 2019

    Decided On, 27 October 2021

    At, Karnataka State Consumer Disputes Redressal Commission Bangalore

    By, THE HONOURABLE MR. JUSTICE RAVI SHANKAR
    By, JUDICIAL MEMBER & THE HONOURABLE MRS. SUNITA C. BAGEWADI
    By, MEMBER

    For the Complainants: Rajesh Shetty, Advocate. For the Opposite Parties: GMR, Advocate.



Judgment Text

Sunita C. Bagewadi, Member

This complaint is filed by the complainant alleging deficiency in service on the part of Opposite Party No.1 in not handing over the possession as per the agreement.

The brief facts of the complaint are as under:-

2. The complainants submit that the Opposite Party No.1 is the proprietor of M/s Adithi Landscaping and Constructions, a developer, engaged in construction and sale of apartments having its corporate office and project office at Bangalore as stated in the cause title. Opposite Party No.2 is the bank from whom the complainants have availed loan for purchase of the schedule property. The complainants further submit that in 2013 Opposite Party No.1 issued pamphlet and represented to the complainants that Opposite Party No.1 has formulated a scheme for development of schedule ‘A’ property by constructing multistoried residential apartment complex consisting of basement, ground and 03 upper floors with common entrance, lobby lift, staircases and passages, etc., and the common facilities and amenities on the schedule ‘A’ property in accordance with the sanctioned plan. The complainants booked one apartment and paid booking amount of Rs.1,00,000/- to Opposite Party No.1 on 18.01.2013. Thereafter Opposite Party No.1 has issued allotment letter dated:06.05.2015 to the complainants confirming allotment of a residential apartment in “ADITHI PADMASHREE” apartment project at #9, Abbigere, Shettyhalli Cross, Bangalore-560 090.

2(a) The complainants further submit that Opposite Party No.1 has entered into an agreement to sell and build dated:29.10.2015 with the complainants agreeing to sell schedule ‘B’ property and schedule ‘C’ apartment, as per specification contained in schedule ‘D’ in the agreement for a total sale consideration of Rs.24,00,000/- which includes car parking, tax, cot, club, Membership BWSSB, BESCOM, VAT Stamp Duty, Service Tax. The complainants paid Rs.3,80,000/- to Opposite Party No.1 at the time of executing the agreement dated:29.10.2015.

2(b) The complainants further submitted that the Opposite Party No.1 has agreed and undertaken to construct and deliver the schedule ‘C’ Apartment to the complainants and execute the sale deed conveying the schedule ‘B’ and the schedule ‘C’ Apartment to the complainants within a period of 24 months from the date of sanction of the plan and maximum period of 03 months grace period. Further, in the event of delay in handing over possession of the Apartment beyond the aforesaid period and reasonable extension of time Opposite Party No.1 has agreed to pay compensation to the complainants at the rate of Rs.5000/- per month for 2 BHK in respect of schedule ‘C’ Apartment.

2(c) The complainants further submitted that they approached Opposite Party No.2 State Bank of India, Yelahanka Branch, Bangalore for home loan for purchase of the apartment. The State Bank of India was pleased to sanction home loan limit of Rs.18,00,000/-as per arrangement letter date:08.01.2016 bearing loan A/c No.35493694280. Pursuant to demand by Opposite Party No.1 for balance sale consideration of the Apartment an amount of Rs.14,00,000/- was released on 12.01.2016 and Rs.1,00,000/- was released on 28.06.2019 to the Opposite Party by Opposite Party No.2 bank and Opposite Party No.1 has issued receipts for the same to the complainants. The complainants have paid a total amount of Rs.19,80,000/- to Opposite Party No.1 towards sale consideration of the apartment.

2(d) The complainants further submitted that the complainants have complied with all the terms and conditions of the agreement to sell and build dated:29.10.2015. In spite of receiving Rs.19,80,000/- from the complainants, the Opposite Party No.1 has failed to finish so many works and also failed to hand over possession of the apartment and failed to execute registered sale deed in respect of schedule ‘C’ apartment till date.

2(e) The complainants further submit that more than 30% of the work is still pending in respect of the complainants’ apartment and Opposite Party No.1 has totally stopped the construction work. Instead of completing the construction of the apartment, Opposite Party No.1 has now issued demand note dated:23.07.2019 to the complainants for Rs.3,00,000/- towards final payment and Govt. Registration of Flat. It is further submitted that as per terms of the agreement dated:29.10.2015, Opposite Party No.1 was required to deliver possession of the apartment on or before 26.02.2016 in spite of several request, reminders and letter dated:11.07.2019 Opposite Party No.1 gave false assurance month after month when the physical possession was asked by the complainants on several occasions. The Opposite Party No.1 failed to hand over possession of the apartment to the complainants till date. This amounts to deficiency in service and unfair trade practice on the part of Opposite Party No.1 towards the complainants.

2(f) The complainants further submitted that the complainants got issued legal notice dated:16.08.2019 to Opposite Party No.1 to complete the construction of the apartment and handover possession of the apartment and execute registered sale deed in respect of the apartment and also pay compensation of Rs.2,50,000/- for delay in handing over possession of the Apartment and Rs.25,00,000/- as damages for mental agony, pain and suffering caused to my clients in this regard or in the alternative to refund a sum of Rs.19,80,000/- paid by complainants from out of their own source and by availing loan from the bank together with interest @ 18% p.a. compounded monthly rest from the respective date of receipt of the amount by Opposite Party No.1 up to the date of payment to complainants and also pay Rs.2,50,000/- towards cost and expenses and Rs.25,00,000/- as damages for mental agony, pain and sufferings caused to the complainants. It is further submitted that the legal notice dated:16.08.2019 issued to Opposite Party No.1 returned un-served as door locked/not claimed. Hence, with no other alternative, the complainants have filed this complaint.

3. Notice issued to Opposite Party No.1 returned “unclaimed”. Hence, the Opposite Party No.1 was placed Ex-parte.

3(a) The Opposite Party No.2 appeared through their advocate and filed the version admitting about obtaining housing loan by the complainants for purchase of schedule “B” & “C” Property from Opposite Party No.2. The Opposite Party No.2 further contended that the complainants have availed credit facilities from the Opposite Party No.2 Bank by way of financial assistance in the year 2015 on purchase of schedule “B” & “C” property a housing loan to the extent of limit of Rs.18,00,000/- in Loan Account No.35493694280 and file No.963/HL/622.

3(b) The Opposite Party No.2 further contended that the Opposite Party No.1 is being a developer/builder carrying on the business under the name and style of M/s Aditi Landscapting and Constructions and he is being developer and also GPA Holder of Mr.T.K.Kemparaju Land owner of schedule “A” property and as per the agreement to sell and build dated:29.10.2015, the Opposite Party No.1 having taken up constructions of residential flat referred in the scheduled “C” property in favour of complainants and on sanction of housing loan from Opposite Party No.2 to the complainants, the complainants and Opposite Party No.1 were enter into Tripartite Agreement dated:08.01.2016 with Opposite Party No.2 wherein it agreed by both complainants and Opposite Party No.1, in case of the default in the repayment of loan by complainants herein, it is obligation on the part of Opposite Party No.1 to clear the disbursement of entire loan amount with interest thereon as agreed in the Tripartite Agreement dated:08.01.2016.

3(c) The Opposite Party No.2 further submitted that after sanction of loan, Opposite Party No.2 disbursed total loan of Rs.15,00,000/- as per request of complainants and Opposite Party No.1 and however registered original sale deed in the name of complainants are not yet submitted before the timeline as mentioned in the said Tripartite agreement to the custody of Opposite Party No.2 bank and in spite of repeated reminders by way of demand notice and email and telephone communication to complainants and Opposite Party No.1 and even after completion specified period beyond the stipulated timeline, neither complainants nor Opposite Party No.1 have not communicated the present status this project, its possession and the execution of sale deed in the name of complainants and also they have not complied terms and conditions of tripartite agreement. Hence, there is no deficiency of service on its part and prays to dismiss the complaint against Opposite Party No.2.

4. Complainants have filed their affidavit evidence and marked the documents as Ex.C1 to C29. Complainants also filed written arguments.

5. We have heard the arguments from complainants and Opposite Party No.2.

6. On perusal, the following points will arise for our consideration;

(1) Whether the complaint deserves to be allowed?

(2) What Order?

7. The findings to the above points are;

(1) Affirmative.

(2) As per final Order

REASONS:

Point Nos. (1) & (2):-

8. Perused the contents of the complaint, affidavit filed by the complainants and materials on record, we noticed that the complainants have booked an apartment with the Opposite Party and after receipt of the advance amount as per Ex.No.2 & 3, the Opposite Party has issued allotment letter in favour of complainant as per Exhibit No.4. Thereafter on 29.10.2015 agreement to sell and build was executed between the complainant and Opposite Party No.1 as per Exhibit No.6. It is seen that as per Exhibit Nos.9, 10 and 19 the complainant has made payment to the Opposite Party towards purchase of apartment. Further, it is seen that as per Ex.C12 the Opposite Party No.2 has sanctioned the loan in favour of complainants.

9. Further, we noticed that in spite of repeated requests and demands, the Opposite Party has not handed over the possession of the Apartment to the complainants. Hence, the complainants got issued legal notice to the Opposite Party No.1 as per document No.14 and the same was returned as door locked/not claimed. Further, the complainant produced photographs of the Apartment which shows the Apartment was not completed fully as per agreement to sell.

10. The complainant in his complaint has contended that he has paid Rs.19,50,000/- to the Opposite Party No.1 out of total consideration of Rs.24,00,000/- and he is ready to pay the balance sale consideration also, but the Opposite Party has not come forward to complete the Apartment and give possession of the Apartment and also contended that the Opposite Party has to complete so many pending works in the apartment as per the agreement to sell and in spite of repeated requests and issuing legal notice, the Opposite Party No.1 did not hand over the possession of the apartment. In this regard the complainants have produced documents, which established that there is a deficiency of service and unfair trade practice on the part of Opposite Party No.1.

11. The Opposite Party No.1 has to disprove the allegations made by the complainants against him. But he has not appeared before this Commission in spite of service of notice and not filed the version and affidavit evidence. Means, all the allegations made by the complainants are admitted by the Opposite Party No.1. Looking to the averments of the complaints, affidavit evidence and documents produced by the complainants, we are of the opinion that there is a deficiency of service on the part of Opposite Party

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No.1. The complaint against Opposite Party No.2 is liable to be dismissed as the Opposite Party No.2 is only a Bank and has given financial assistance/sanctioned loan to the complainants to purchase the Apartment and even the complainants also have not made any allegations against the Bank. Accordingly, we proceed to pass the following:- ORDER: The complaint is allowed against Opposite Party No.1 with cost of Rs.25,000/- The Opposite Party No.1 is directed to complete the construction work of the schedule apartment and provide utilities as per terms of the agreement to sell and build dated:29.10/.2015 and handover physical possession with completion certificate from competent authority after execution of sale deed by receiving balance sale consideration within 02 months from the date of this order by completing pending works in the apartment as per the agreement. Failing which the Opposite Party is directed to refund Rs.19,80,000/- along with interest @ 12% p.a. from the date of respective payment till realization. The Opposite Party No.1 is further directed to pay Rs.2,00,000/- to the complainants towards compensation for mental agony. The complaint against Opposite Party No.2 is hereby dismissed. Send a copy of this order to both parties.
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