State Consumer Disputes Redressal Commission
Mrs. Saraswathi Uligada vs M/S Dreamz Infra India Pvt. Ltd. on 7 June, 2022
Date of filing: 01.08.2017
Date of Disposal: 07.06.2022
BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL
COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED: 07th Day of June 2022
PRESENT
Mr. K B SANGANNANAVAR: JUDICIAL MEMBER
Mrs.M.DIVYASHREE : LADY MEMBER Consumer Complaint No.397/2017 Mrs. Saraswathi Uligada, W/o Hanumanthappa Uligada, GPA Holder, Radhika Ulligad, H.No.214, 11th Main, 7th Cross, Shankambarinagar, J.P.Nagar, 1st Phase, Bangalore-560078. Complainant (By Mr. P Rajashekar, Adv.)
-Versus-
M/s Dreamz Infra India Pvt. Ltd, Rep by Managing Director, Ms. Disha Choudhary, Office at No.577/B, 2nd Floor, Outer Ring Road, Teachers Colony, Koramangala, Near Silk Board, Bangalor-560034. Opposite party (Exparte) 2 CC/397/2017 Date of filing: 01.08.2017 Date of Disposal: 07.06.2022 BY Mrs. M.DIVYASHREE : LADY MEMBER ****** //ORDER//
1. This is a complaint filed by the complainant under Section 17 of Consumer Protection Act, 1986 with a prayer to direct OP to pay a sum of Rs.16,00,000/- (Rupees Sixteen Lakhs) along with interest @ 18% p.a. from 06.07.2017 till the date of realization and to pay compensation of Rs.5,00,000/- with cost.
2. The OP is the Private Limited Company represented by its Managing Director Ms.Disha Chowdary and having their registered office in H.S.R. Layout at Bangalore. The OP is in the field of business of building and developing of properties and sale of apartment flats to prospective buyers.
3. The complainant submits that the OP is the Developer and Builder of the Apartment by name "Dreamz Shloka" at H.S.R. Layout, Bangalore. On 18.12.2012 an agreement of sale was entered between OP company and the complainant in respect of the flat No.126 (2 BHK) on First Floor in the G+3 Multistoried 3 CC/397/2017 Date of filing: 01.08.2017 Date of Disposal: 07.06.2022 building, built on 44758 sq.ft. (1 Acre, 1 Gunta land) consisting of 1100 sq.ft., in the apartment named as "Dreamz Shloka" (H.S.R. Layout), situated at Haralakunte Village, Begur Hobli, Bangalore South at the price of Rs.30,00,000/- (Rupees Thirty Lakhs Only) including one car parking space in the basement and excluding VAT, Service Tax and Registration. In this connection, OP had assured and promised the complainant that he shall construct the proposed apartment building as per the original plan shown to the complainant. As per the terms of the said sale agreement dated 18.12.2012 the complainant made payment of Rs.16,00,000/- (Rupees Sixteen Lakhs Only) to OP towards the sale consideration in the manner mentioned below:
Sl.No Date Mode of Payment Amount
a) 11.11.2012 Cash 10,000.00
b) 14.11.2012 Cash 6,75,000.00
14.11.2012 Cheque No.315760 15,000.00
c)
(SBM Bank)
4
CC/397/2017
Date of filing: 01.08.2017
Date of Disposal: 07.06.2022
8,00,000.00
d) 01.12.2012 Cash
1,00,000.00
e) 18.12.2012 Cash
Total
16,00,000.00
The balance of sale consideration was agreed to be paid by the complainant to OP on execution of Sale Deed within a period of 18 months on completion of construction of Apartment and delivery of possession. The complainant states that she was ready and willing to perform her part of contract.
4. Further it is alleged by the complainant that the OP has violated the original proposed plan by making alterations and changes by violating the assurances and promises made to the complainant, in order to cause wrongful loss to the complainant by making wrongful gain. In this manner, OP had decreased the built up area assured to the complainant from 809.87 sq.ft. to 772.5 sq.ft., In this connection, the complainant has filed the suit 5 CC/397/2017 Date of filing: 01.08.2017 Date of Disposal: 07.06.2022 against the OP in OS No.6952/2013 on the file of the City Civil Judge, CCH-40, Bangalore for permanent injunction. In the said suit even though the OP did not choose to file their written statement and contest the matter. The said suit was dismissed on 12.04.2017 on technical grounds i.e., the required certificate under section 65B of Indian Evidence Act, 1872 was not filed.
5. The complainant further urged that when he approached the OP on 15.04.2017 for taking further steps in the matter, the OP informed to complainant that they did not start the project and abandoned the same once for all due to serious disputes arose between the OP company and the owners of the land and third parties. Saying so the OP company proposed to the complainant that the OP company shall refund the advance of Rs.16,00,000/- (Rupees sixteen lakhs only) paid by the complainant to the OP company with interest at 18% p.a. from the date of payment within two months. The said proposal was accepted by the complainant. 6 CC/397/2017 Date of filing: 01.08.2017 Date of Disposal: 07.06.2022
6. In view of the assurance and promise made to the complainant, she has been awaiting for the payment to be received on the call of the OP on 16.06.2017. The complainant approached OP company office, she found that OP company office has been permanently closed and even whereabouts of its company directors are not known to the people in the surroundings. Inspite of serious efforts and enquiries made by the complainant, she could not meet anybody who is in charge of OP Company.
7. It is therefore, the complainant got issued legal notice dated 21.06.2017 to OP company calling upon to refund the advance amount of Rs.16,00,000/- (Rupees Sixteen lakhs only) which is due to the complainant along with interest at the rate of 18% p.a. within 10 days from the date of receipt of the notice. The said notice was returned on 24.06.2017 with endorsement "LEFT". Complainant vehemently alleged that evidently OP closed their office and its Directors absconding in order to avoid refund of the amount due to the complainant. Therefore, complainant raised the present complaint.
7CC/397/2017 Date of filing: 01.08.2017 Date of Disposal: 07.06.2022
8. After admitting this complaint notice ordered on OP could not be served as it returned un-served, as such under Order V Rule 20 Read with Section 151 of CPC complainant sought for service by substitute service through paper publication and the said notice was published in "UDAYAVANI" kannada daily newspaper dated 08.02.2019. Yet OP failed to participate in the complaint proceedings. The Commission held, service by way of paper publication is sufficient and OP has been placed exparte.
9. The Commission held an enquiry on the complaint by receiving affidavit evidence. The Complainant appoints her daughter Smt.Radhika Uligad as GPA to carry all the acts, deed things etc., on behalf of her. She filed affidavit evidence and produced document no.01 to 04 in support of her case. Heard leaned counsel for complainant and upon examination of materials on record, now the Commission has to examine, whether OP is deficient in rendering service as alleged by the complainant and if so, is entitled for relief sought for?
8CC/397/2017 Date of filing: 01.08.2017 Date of Disposal: 07.06.2022
10. In order to prove her case, the complainant herein has produced document no.2 copy of Agreement of Sale entered between complainant and OP on 18.12.2012. We have gone through the title deeds, the construction particulars and other details in the sale agreement. This sale deed provides certain rights of the purchaser. We could see under schedule-A the consideration of sale of Schedule-B property, the payment schedule is well described. Herein the parties have agreed to sell and transfer Schedule „B‟ Property along with right to put up construction of Apartment in the Schedule „A‟ Property to the Purchaser and / or his nominees for a sale consideration of Rs.30,00,000/-. OP agreed to sell Apartment No.126 (2 BHK) on First Floor of the multi-storied building known as "DREAMZ SHLOKA" which is pre-launch partnering offer measuring Super Built Area of 1100 sq.ft., along with 314.28sq.ft., undivided share in the building being constructed on the Schedule A Property with the floors, ceiling and walls between units jointly belonging to such Apartment Owners equally common area with One covered Car Parking.
9CC/397/2017 Date of filing: 01.08.2017 Date of Disposal: 07.06.2022
11. The Sale Agreement entered between parties to the complaint shows the transaction of payment schedule made between complainant and OP. This clearly signifies that complainant had made payment to OP as agreed between them. Here it witness the payment schedule of the complainant as follows:
Cheque Dated Cheque No. Amount
11/11/2012 Cash Payment Rs.10,000/-
14/11/2012 Cash Payment Rs.6,75,000/-
14/11/2012 315760(SBM) Rs.15,000/-
01/12/2012 Cash Payment Rs.8,00,000/-
18/12/2012 Cash Payment Rs.1,00,000/-
12. Heard the arguments, in the affidavit evidence filed by GPA Holder of the complainant in lieu of oral evidence, she reiterated the contentions urged in the complaint. We perused the documents on record. Further perused the document no.2 the Sale Agreement dated 18.12.2012. Here it is relevant to refer the admitted and proved fact, wherein the payment schedule of the 10 CC/397/2017 Date of filing: 01.08.2017 Date of Disposal: 07.06.2022 complainant is mentioned, proves payment of Rs.16,00,000/- paid by the complainant to the OP. It is seen that transaction took place between the parties and documents were signed, the payment of Rs.16,00,000/- paid by the complainant to OP is witnessed and it clearly establishes the payment to the OP is genuine. Thus, the documents produced by the complainant, having not been rebutted by OP, complainant proved deficiency in service on the part of OP in rendering service in respect of the flat agreed to be sold in his favour. When OP failed to adhere the terms of sale agreement he is liable to pay pecuniary and non- pecuniary damages sustained by complainant, as complainant had invested hard earned money with the OP.
13. The complainant has sought to award interest at the rate of 18% p.a. This agreement of sale is dated 18.12.2012 and the amount has been paid by the complainant to OP to construct the proposed apartment building as per the terms of the said sale agreement. Thus, OP has committed act of deficiency in service in not handing over flat no.126 as agreed for which OP is held liable 11 CC/397/2017 Date of filing: 01.08.2017 Date of Disposal: 07.06.2022 to refund the amount paid by complainant along with interest @ 18% p.a. from the date of complaint. In our view, awarding such interest would cover the monetary loss to the complainant, if he had invested such huge hard earned money in some other projects would have earned more and now for the OP deficiencies he is put to monetary loss. It is therefore, Commission is of the view awarding of 18% interest per annum for Rs.16,00,000/- paid by the complainant would meet ends of justice.
14. Accordingly, Commission proceed to allow the complaint in part and direct OP to refund Rs.16,00,000/- along with interest at the rate of 18% p.a. from the date of complaint till payment and do pay Rs.1,00,000/- as compensation and Rs.20,000/- towards litigation costs within 60 days from the date of this order.
Lady Member Judicial Member
*GGH*