Date of Filing:08/05/2017
Date of Order:21/12/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed U/S 12 of the Consumer Protection Act 1986 against the O.Ps alleging deficiency in service and prays for orders to direct the O.Ps as follows:-
i) To refund the booking amount of Rs.2,00,000/- and to pay interest at the rate of 24% per annum from the date of deposit on 28.01.2017 till its realization.
ii) To pay a sum of Rs.1,00,000/- towards causing mental agony, harassment and hardship to the complainant.
iii) And to pay a sum of Rs.25,000/- towards the cost of proceedings.
2. The brief facts of the complaint are that complainant with an intention to purchase the flats approached the O.Ps and after negotiation the sale consideration for the said plot is fixed for Rs.7,00,000/-. Further the O.Ps promised to the complainant that the project will be completed within 12 months. It is stated that the Memorandum of Understanding will be entered within 7 days from the date of making initial payment. Further states that, the complainant paid initial booking amount of Rs.2,00,000/- vide cheque bearing No.000029 dated 28.1.2015 and O.Ps entered into Memorandum of Understanding on 2.2.2015 and O.Ps promised the complainant to make the balance payment at the time of registration of the site after getting necessary approval from the concerned authorities. Further states that even after lapse of 22 months from the signing of Memorandum of Understanding the complainant did not get the site registered in his name and the O.Ps did not commence the formation of layout. Hence it is stated that the complainant on 19.12.2016 submitted cancellation form to the O.Ps to cancel the sites and refund the amount of Rs.2,00,000/- but the O.Ps failed to refund the initial booking amount to the complainant. Hence this complaint.
3. Upon issuance of notice to the O.Ps and the notices are returned as addressee left and hence the complainant by filing the application taken the substitute service by way of paper publication. As per the orders of the Forum the complainant was taken the notice through paper publication but despite the paper publication O.Ps did not turned to appear before the Forum to answer the claim made by the complainant. Hence the O.Ps are placed ex-parte.
4. In order to substantiate the case of the complainant and the Complainant has filed his affidavit evidence along with documentary evidence and we heard the arguments.
5. On the basis of the complaint averments, the following points will arise for our consideration is:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) What order?
6. Our answers to the above points are:-
POINT (A) & (B): In the affirmative.
POINT (C): As per the final order
for the following:
REASONS
POINT No. (A) & (B):-
7. On perusing the complaint averments and the evidence placed on record, it is the specific case of the complainant that he intends to purchase the plot from the O.Ps and thereon the complainant approached the O.Ps and after negotiation the sale consideration was fixed for Rs.7,00,000/- towards purchase of the plot in the project of the O.Ps. But the O.Ps failed to keep up their promise and hence complainant given the booking cancellation and the O.Ps failed to refund the amount, which leads to filing of the present complaint.
8. In order to prove the case of the complainant and the complainant filed their affidavit evidence along with the documentary evidence. On perusal of the affidavit evidence the complainant almost reiterated all the facts averred in the complaint.
9. On perusal of the receipts produced by the complainant receipt No. 3925 dated 26.01.20165 for amount of Rs.2,00,000/-, approval form and Memorandum of Understanding produced by the complainant, all these documents are evident that the complainant duly paid the above said amounts to the O.Ps.
10. On the basis of available evidence on record and the non-appearance of the O.Ps and also on perusal of the cancellation form dated 19.12.2016 it is evident that the O.Ps failed to develop the project and to deliver the possession of the plot well in time as promised by them and just push down the days. The law will not allow to have a cake and eat it too. The O.Ps by receiving the amount did not deliver the plot as promised and also not refunded the amount. Therefore the O.Ps failed to perform their part of the contract and not yet commenced the project till today. Hence the complainants rightly demanded for refund of the amount but the O.Ps did not yield to the request of the complainants and push down the days without any progress in the project or refunding the amount to the complainants. The act of the O.Ps are highly deplorable one and the service of O.Ps are not only deficient but also adopted the unfair trade practice. It is pertinent to note that despite the paper publication and the O.Ps remained absent and thereon all the allegations made in the complaint remained unchallenged.
11. It is pertinent to note that, the housing problems day by day increases particularly in cities like Bengaluru. Further it is the dream of the every middle class people to have his own nest and for which persons like complainant they will invest their hard earned money by borrowing the loan and out of their savings of hard earned money, whereas the O.Ps like builders will take disadvantage of the situation and giving colourful offers in order to entangle the customers to their well designed web and to gain money easily. On the basis of available evidence on record and on perusing the Memorandum of Understanding the O.Ps are also quoted the colourful sale consideration in order to entangle the complainant to their well designed web. Hence we have no hesitation to hold that O.Ps are not only deficient in their service but also adopted unfair trade practice. Under the circumstances, we are of the opinion that if the complainant invested the amount paid to the O.Ps in any nationalized bank or in any property it will earn more interest. Above all as per undertaken by the O.Ps in the Memorandum of Understanding, they agreed to refund the amount with interest at the rate of 8% per annum within 90 working days but failed to keep up their promise and made the complainant to run from pillar to post and hence complainant not only entitled for the refund of the amount but they is also entitled for the interest. Therefore, we hereby direct the O.Ps to refund the amount paid by the complainant along with interest at the rate of 18% per annum from the date of payment till its realization and hence no separate compensation is awarded in view of the award of the interest and further directed to pay Rs.5,000/- to complaint towards the cost of the proceedings and it will meets the ends of justice. Accordingly, we answered the Point No. (A) and (B) in the affirmative.
POINT No. (C):
12. On the basis of answering the Points (A) and (B), in the result, we proceed to pass the following:-
ORDER
- The complaint is hereby allowed with cost.
- O.P No.1 and 2 are jointly and severally hereby directed to pay a sum of Rs.2,00,000/- to the complainant along with interest at the rate of 18% per annum from the date of payment till its realization.
- Further O.P No.1 and 2 are hereby directed to pay a sum of Rs.5,000/- to the complainant towards cost of the proceedings.
- The O.Ps are hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this Forum within 45 days from the date of receipt of this order.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 21st Day of December 2017)
MEMBER PRESIDENT
*RAK
