M. PRERNA PAI Vs. TRISHUL DEVELOPERS

JUDGEMENT

(1.) This complaint is filed under sec. 21 (a) (i) of the Consumer Protection Act, 1986 (hereinafter 'Act') alleging deficiency in service and unfair trade practice by M/s Trishul Developers, Bangalore, the opposite party, in respect of a residential flat booked by the complainants in project 'Mittal Farms', Shivanahalli village, Yelahanka, Bangalore, Karnataka (in short 'the project') promoted and developed by the opposite party.

(2.) The factual matrix of the case in brief is that the complainants had booked residential flats with the opposite party in the project on various dates by paying different booking amounts. As the project was delayed and there was no offer of possession as per clause 2 of the Agreement to Sell (hereinafter, 'Agreement'), the complainants filed the present complaint seeking refund with interest as compensation and other reliefs. On 19/3/2018 this Commission allowed an Interim Application (IA) for converting the applications into a class action suit under sec. 12 (1) (c) of the Act. The complainants are now seeking refund of their deposits with compensation on grounds of deficiency and unfair trade practices by the opposite party. The complaints of the present applicants are identical in the grounds urged and the relief claimed. For the sake of convenience, however, the facts of the complaint of the first complainant, M. Prerna Pai, are being taken for the purpose of this case.

(3.) The facts pertaining to the complainant are that she had booked a flat in the project by paying an amount of Rs.6,67,710.00 at the time of booking on 30/4/2013. As per an Agreement to Sell (in short 'Agreement') and a Construction Agreement dtd. 27/4/2013 she was allotted apartment no. E-401 admeasuring 1340 sq ft (super built area) on the 4th floor of E Block of the project at a sale consideration of Rs.44,51,400.00 excluding other charges such as maintenance, electricity and water connection charges, stamp duty and registration charges. As per clause 2 of the Construction Agreement it was promised by the opposite party that construction would be completed within 30 months i.e., by 27/10/2015. The complainant has averred that it took a loan of Rs.35.00 lakhs from the Syndicate Bank, VV Puram, Bangalore from which Rs.30,96,224.00 was paid in instalments to the opposite party. However, the project has not been completed and no offer of possession made as on 27/10/2015, the date of filing of the complaint. This is despite several assurances and revisions in dates of possession by the opposite party indicating dates of possession without disclosing reasons for the delay. The case of the complainant is that there has been an inordinate delay in handing over possession of a flat for which she deposited Rs.39,57,734.00 in instalments with the opposite party as per the Construction Agreement and that this constitutes deficiency in service as possession has not been offered. The false and misleading assurances and one-sided clauses in the agreement amount to unfair trade practices. It is her case that the delay is inordinate as the opposite party has not delivered possession even after 2 years from the committed date of possession. It is averred that she was unable to contest the one-sided clauses in the Agreement having already deposited a substantial amount of money with the opposite party. Therefore, the complainant is before this Commission with the following prayer: