BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MANGALORE

                                                        Dated this the 5^th day of November 2016

PRESENT

        SMT. C.V. SHOBHA       :   HONBLE PRESIDENT      

        SMT.LAVANYA M. RAI    :   HONBLE MEMBER

ORDER IN

                                                          C.C. No. 189/2016

(Admitted on 31.05.2016)

Mr. Ashley John Machado,

S/o Mr. Antony George Machado,

Aged about 32 years,

Residing at Paradise,

Anegundi, 4^th Cross,

Bejai New Road, Mangaluru  575 004,

Represented by his

Father and General Power of Attorney holder

Mr. Antony George Machado,

S/o John Machado,

Aged about 69 years,

Residing at Paradise,

Anegundi 4^th Cross,

Bejai New Road, Mangaluru  575 004,

As per G.P.A. dated 03.02.2015 executed

And authenticated before B.N. Harshalatha,

Advocate & Notary, Bengaluru.

                                             ……… Complainants

(Advocate for Complainants: Smt. MNA)      

VERSUS

1. Skyline Construction and Housing Pvt. Ltd.,

No.11, Hayes Road,

Bangalore  560 025

Represented by its Managing Director

Mr. Avinash Prabhu.

2. Eternity Developers Pvt Ltd,

No.11, Hayes Road, Bangalore  560 025

Represented by its Managing Director

Mr. Avinash prabhu.

3. Skyline Construction and Housing Pvt. Ltd.,

Ground Floor, Manasa Towers, Kodialbail,

Mangalore  575 003.

Represented by its Authorised Signatory

Mr. Dhiraj Prabhu.

4. Skyline Construction &

Housing Pvt. Ltd., Ground Floor,

Manasa Towers, Kodialbail,

Mangaluru  575 003,

Represented by its Executive

Mr.Sriram Shetty.

                                            ……. Opposite Parties

 (Opposite Parties No.1 to 4: Ex parte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. C.V. SHOBHA:

I.      1. The above complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service in housing construction against the Opposite Parties and claiming certain reliefs.

2. The complainant prays for the order for reliefs directing the opposite parties to refund the sum of Rs.11,05,621/, to pay interest @ 20% p.a. on Rs. 11,05,621/ from the date of payments till realization, to pay cost of the notice the sum of Rs.3,000/- and to pay sum of Rs.5,00,000/- as a damages, for mental agony, stress and inconvenience.

      The facts of the complaint in brief are as follows:

The Complainant filed the above complaint against the opposite parties for deficiency in service in housing construction.  The complainant in the above complaint stated that the opposite parties are the Promoter/Developer of the proposed BAY VIEW Apartment at Skyline Blue Berry Hills, phase 3, Yeyyadi, Mangalore.  The complainant booked one residential apartment consisting of 3 BHK Flat No.A1204 in A Block on 12^th Floor measuring 1716 Sq.Ft. with a covered car parking slot, for a total consideration of Rs.44,02,484/  with the opposite parties on 05.05.2013 and in turn opposite parties direct the complainant to pay certain sum of money mentioned in the complaint to the opposite parties.  The opposite parties assured that the proposed apartments will be completed in all respect within 10 days from the date of the booking.  Believing opposite parties, the complainant entered into agreement and paid certain sum of money as mentioned in the complaint to the opposite parties as demanded by them.  The complainant ready and willing to purchase the aforesaid apartments but opposite parties not even started the construction work and failed to provide the copies of the concerned documents of the apartments, inspite of repeated demand made by the complainant.  After waiting long period the complainant got issued various email requesting the opposite parties to refund the entire amount.  But the opposite parties failed to comply the same.  Hence the above complaint is filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act,) seeking direction from this FORA to the opposite parties to refund the entire sale consideration paid by the complainant to the opposite parties and also compensation and costs of the proceedings.

II. Version notice served to the opposite parties by RPAD.  The opposite parties in spite of receiving notice not appeared nor represented case till this date.  Hence the opposite parties No.1 to No.4 placed Ex parte.

     In support of the complaint Mr. Antony George Machado the complainant examined as CW1 and produced documents got marked Ex.C1 to C9.  The complainant produced notes of arguments.

III.     In view of the above said facts, the points now that arise for our consideration in above complaints are as under:

1. Whether the Complainant proved that the Opposite parties committed deficiency in Service?
2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

We have considered the notes/oral arguments submitted by the complainant and also considered the materials that was placed before this FORA and answered the points are as follows:

             Point No.(i) & (ii)  : Affirmative.

           Point No.(iii)  : As per the final order.     

                                                                               Reasons

     Point No. (i) and (ii):  The top numbered matter the complainant lodged the complainant against all the opposite parties for claiming the refund of a total sum of Rs.11,05,621/ with interest and others from them on the ground of deficiency of service and unfair trade practice involved therein to him.

     The matter involved there in that the opposite parties are the Promoter/Developer of the proposed BAY VIEW Apartment as per their advertisement and offer, as such he booked one residential apartment consisting of 3BHK flat No.A1204 in A Block on 12^th Floor measuring 1716 Sq. Feet with a covered car parking slot, for a total consideration of Rs.44,02,484/ as on 05.05.2013.  In turn, on believing he paid Rs.4,40,250/ by cheque No.874918 dated 06.05.2013 drawn on SBI NRI Branch, Mangalore in favour of opposite party No.2 and opposite party at the time of booking have assured the said proposed building will be completedly within 24 months and delivered.  As such on receipt of the further part sale consideration opposite party assured, sending a sale agreement regarding terms and conditions within 10 days of the said booking.  Further, on 11.05.2013 he paid Rs.5,000/ towards stamp duty for agreement.  In spite no agreement seat, on enquiry by the complainant with opposite party for its development, opposite party issued a demand notice dated 03.07.2013 for demanding further amount of Rs.6,60,371/, towards production of documents and agreement.  To respond the same complainant requested for documents and plans for obtaining clearance from bank for his house loan and also for agreement.  Then opposite party again sent an undertaking letter dated 23.08.2013 for the documents.  On that basis complainant’s son paid another sum of Rs.1,60,371/ by way of cheque No.129710 dated 23.08.2013 and another sum of Rs.5,00,000/ by cheque No.129751 dated 26.08.2013 both drawn on SBI Bijai Branch, Mangalore.  As such, so far paid in all Rs.11,05,621/ to the opposite party by the complainant, despite no documents nor executed any agreement of sale, in favour of complainant by the opposite party.  Inspite of letter to opposite party dated 22.11.2014 no purpose served.  But the complainant is and was always ready and willing to purchase the apartment by paying the balance sale consideration, as per the wordings of him dated 05.05.2013.  Further he also already arranged for the fund.  Regarding the said payment made in all Rs.11,05,621/, the opposite party given the receipts.  Despite no progress either in construction work or in sale transaction.  But, the opposite party kept quite by keeping the said huge amount.  It seems the deficiency of service and unfair trade practice to the complainant by all the opposite parties.

     On registration of the above case this forum sent notice to them even in spite of due service of the same none have appeared hence placed ex parte of all the opposite parties as per section 28(A) of Consumer Protection Act.  Then the complainant examined by filing his sworned affidavit and his documents are got marked as Ex C1 to C9.  And case proceed for final orders on merits after hearing the arguments.

          Now, with all the above materials available both oral and documentary, our considered opinion that once the said huge amount was paid of a sum of Rs.11,05,621/ and all the due receipts have been drawn and also none of the opposite party have appeared, it is enough to conclude that above points have been answered by us in the affirmative, as it is a case of a pure deficiency of service and unfair trade practice, on the motive of grabbing money from the general public with false assurance, in order to cause wrongful loss and damage to complainant and in order to have wrongful gain.  Therefore, on that ground alone any of the opposite party have no any right in keeping the money of the complainant without any reason.  Hence the opposite parties are liable to refund the entire amount of Rs.11,05,621/ to get her with interest at the rate of 10% p.a from 26.08.2013, i.e. of the date of last payment.  Further when unnecessarily keeping the said huge money by the opposite party without any reason and knowing that the same is of complainant, the opposite parties are also liable to pay compensation for a sum of Rs.25,000/, for causing harassment and mental agony till the date to the complainant.  Further they also liable to pay another sum of Rs.5,000/ towards cost and litigation expenses incurred by the complainant.

POINT No.3: In the result, accordingly as per the final order:          

ORDER

          The complaint is allowed in part.  The Opposite parties are jointly and severally are responsible and liable to pay for a sum of Rs.11,05,621/ (Rupees Eleven lakhs Five thousand Six hundred Twenty One only) together with interest at the rate of 10% p.a from 26.08.2013 till make payment.  Further the opposite parties are also liable to pay for a sum of Rs.25,000/(Rupees Twenty five thousand only) towards compensation and another sum of Rs.5,000/ (Rupees Five thousand only) towards cost and litigation expenses.  Payment shall made within 30 days from the date of receipt of this copy of this order.

Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.

(1 to 8 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 5^th day of November 2016)

              MEMBER                                   PRESIDENT

  (SMT. LAVANYA M. RAI)            (SMT. C.V. SHOBHA)

D.K. District Consumer Forum       D.K. District Consumer Forum

            Mangalore.                                           Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Mr. Antony George Machado

Documents Marked on behalf of the Complainants:

Ex C1: Dated 05.05.2013     Application Form

Ex C2: Dated 03.07.2013     Demand notice issued by Opposite party

Ex C3: Dated 23.08.2013      Letter issued by opposite party

Ex.C4: Dated 22.11.2014      Letter by the complainant

Ex C5: Dated 03.02.2015      Notarised copy of the General Power of Attorney executed by the complainant

Ex C6: Dated 26.08.2013      Receipt for Rs.5,00,000/

Ex C7: Dated 23.08.2013      Receipt for Rs.1,60,371/

Ex C8: Dated 06.05.2013      Receipt for Rs.4,40,250/

Ex C9: Dated 11.05.2013      Receipt for Rs.5,000/                                      

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents produced on behalf of the Opposite Parties:

Nil

Dated: 05.11.2016                           PRESIDENT