BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  MANGALORE

Dated this the 23^rd March 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT.LAVANYA M. RAI                   : HON’BLE MEMBER

ORDERS IN

C.C.No.364/2016

(Admitted on 28.10.2016)

              1. Linus Moras,

S/o Camil Moras,

Aged 62 years, Post Bo No.4593,

Radiant, All guasius,

Dubai, U.A.E.

               2. Jessy Moras,

W/o Linus Moras, Aged 58 years,

Post Box No.4593, Radiant, All guasius,

Dubai, U.A.E,

Both are also at Maurishka palace,

                 8^th Floor, Flat No.807, Kadri Kambla Road,

Mangalore, Karnataka State.

                                                       ……… Complainants

(Advocate for Complainant by Sri. BJF)

                            VERSUS

               1. Sri. Yogesh L. Mehra, Director/CEO,

Better Homes Relators Pvt.Ltd,

228, Regus Business Center,

Level 2, Connaught Place,

Bund Garden road, Pune 411001.

Better Homes, Pune,

Unit No.57, Hills, and Dales,

S.No.13/14, Undri,

Pune 411028, Maharastra.

Labh Shelters Pvt. Ltd,

1533, Shiv Sagar Apartments,

                  4^th floor, Above House of Laptop,

Pune, Maharasta.

             2. Sri. Gaurav Singh,

C/o Sri. Yogesh L mehra,

Director/CEO, Major,

Better Homes Realtors Pvt.Ltd,

228, Regus Businees Center,

Level 2, Connaught place,

Bund Garden Road, Pune 411001.

               3. Sri. Gladwin Baptist,

C/o Sri. Yogesh L Mehra,

Director/CEO, Major,

Better Homes Realtors Pvt.Ltd,

228, Regus Business Center,

Level 2, Connaught Place,

Bund Garden Road, Pune 411001.

                                                     …. Opposite Parties

        (Opposite Party No.1, 2 and 3: Ex parte)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

1.  This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.

The brief facts of the case are as under:

          The complainant submits that the Opposite Party 1 to 3 are the promoters and realty Developers having their head office at Pune, India.  For the progress of the project Labh Shelters Pvt. Ltd Ville Fiesta, Opposite Parties came to Dubai to sell and develop plots at Sawantwadi, Pune, Maharashtra. The Opposite Parties approached the complainants with their above project, and the presentation placed by them impressed the complainants and they booked a plot of Labh Shelters pvt. Ltd, Villa fiesta.  The Opposite Parties made the complainants to believe that the plots will be ready within few months.  Believing the presentation made by the  Opposite Parties, the complainants paid the entire amount of the Villa, amounting Rs. 15,29,430/ through State Bank of India, Kankanady Branch, Mangalore to the account of Labh Shelters Pvt. Ltd, at Axis Bank, Account No.911020063034371 through R.T.G.S/ Neft on 29.3.2014 and that too at the instructions of the 1^st Opposite Party.  After the payment of the above amount the Opposite Party concern allotted plot No.78, phase III at Sawantwadi, Pune.

          The complainant further submits that the Opposite Parties promised and assured to complete the above project at the earliest and deliver possession, failed to deliver the same, inspite of the repeated requests of the complainants.  In the meanwhile complainant No.1 fell ill and suffering from liver cirrhosis wherein he was recommended for liver transplant which would cost more than Rs. 30 to 40 lakhs.  Since Opposite Party 1 to 3 did not complete and handover the possession of the Villa as promised pertaining to the plot he had booked, he requested them to return back the paid towards the plot.  The 1^st Opposite Party on behalf of the concerned though agreed to pay back the amount paid by the complainants with interest not bothered to return the money.  The act of Opposite Parties in not delivering the plot fully completed or not returning the money as agreed amounts to deficiency of service on the part. Therefore the complainant issued legal notice on 19.2.2016. Except e-mail conversation no reply.  Hence the above complaint filed by the complainant before this forum under section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction from this Fora to the Opposite Parties to deliver plot Villa plot No.78 phase III at Sawanthwadi, Pune or in the alternative return the amount of Rs. 15,29,430/  paid on 29.3.2014, with 21% interest per annum, from the 29.3.2014 till the date of realisation and to pay Rs.5,00,000/ compensation/ damages.

II. . Version Notice served to the opposite parties by RPAD, inspite of receiving notice the Opposite Parties neither appeared nor contested the case.  Hence we have proceeded Ex-parte as against Opposite Parties.  Version of Opposite Parties not filed hence treated nil.   

III.     In support of the above complaint the complainant Jessy Moras, filed affidavit evidence as CW1 and documents produced got marked Ex.C1 to C8. Since the Opposite Party placed Ex parte, Opposite Party not filed version nor led any evidence.

IV.     In view of the above said facts, the points for arise for our consideration in the case are:

1. Whether this forum has territorial jurisdiction to entertain the complaint?
2. Whether the Complainants proved that the Opposite Party committed deficiency in service?
3. If so, whether the Complainants is entitled for any of the reliefs claimed?
4. What order?

        We have considered the arguments submitted by the complainant and also considered the materials was placed before the Fora and answered the points are as follows:

                              Point No. (i)  : Affirmative

                              Point No. (ii) and (iii) : Affirmative

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

REASONS

V.   POINTS No. (i), (ii) and (iii): 

          In order to substantiate the case.  The 2^nd complainant filed evidence by affidavit and produced documents Ex.C1 to C8 as listed in the annexure. After perusal of the evidence and documents both the complainants approached Opposite Parties and booked a plot of Labh Shelters private Limited, Villa Fiesta at Pune and paid entire amount of the villa for Rs.15,29,430/ by way of R.T.G.S and NEFT though SBI Kankanady branch, Mangalore as per Ex. C7.  complainant paid Rs.7,29,486/ to Labh Shelters Pvt. Ltd though RTGS and on 21.4.2014 complainant paid Rs.8,00,025/ to Labh Shelters pvt. Ltd though NEFt.  As per instructions of the Opposite Party the complainant paid full amount and was allotted plot No.78 Ph III at Sawantwadi, Pune.        

Thereafter the Opposite Parties are not complete the project and failed to deliver in same hence issued Ex.C1 to Ex.C4 legal notice and acknowledgments.  Ex.C5 and C8 is the Email correspondents between the parties and the Ex.C6 is Receipt issued on 11.6.2014 and signed by both the parties which shows that amount received from Jacintha Roselima Moras for Rs.7,29,430/ and Rs. 8,00,000/.  On behalf of Labh Shelters pvt. Ltd.  Hence it is sufficient to prove that the Opposite Party received the amount from the complainant for the proposed project is not disputed.

          Apart from the above, we also noted that even though the Opposite Parties are residents of not within the territorial jurisdiction of this fora, the transactions between the parties are within the jurisdiction of this fora as per Ex.C7.  the Section II (2) ©reads thus.

          C) The cause of action, wholly or in part arises. Considering the above jurisdiction point does not arise.  Further the entire evidence placed on record not controverted nor contradicted, hence which requires no further proof. 

          In view of the above, since the project is not completed as per the complaint, order for delivering the possession of plot does not arise and to meets ends of justice, the Opposite Party. No.1 to 3 shall refund the amount of Rs.7,29,430/ and Rs.8,00,000/ as per Ex.C7. along with 9% interest p.a. from the date of legal notice till the date of payment.  Further Rs.20,000/ as compensation and Rs.5,000/ as cost of the litigation expenses is justified accordingly point No. 1, 2 and 3 is affirmative.

In the result, accordingly we pass the following Order.

ORDER

                The complaint is allowed with cost.  Opposite Party 1 to 3 are jointly and severally liable to refund the amount of Rs.7,29,430/ (Rupees Seven lakh twenty nine thousand four hundred  thirty only)  and Rs.8,00,000/ (Rupees Eight lakh only), along with 9% interest per annum from the date of legal notice till the date of payment.  Further pay Rs.20,000/ (Rupees Twenty thousand only) as compensation and Rs.5,000/(Rupees Five thousand only) as cost of the litigation.  Payment shall be made within 30 days from the date of receipt of this order.

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

(Page No.1 to 7 dictated by Member to the Stenographer typed by him, revised and pronounced in the open court on this the 23^rd March 2017)

             MEMBER                                        PRESIDENT

      (LAVANYA M RAI)                    (VISHWESHWARA BHAT D)

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

             Mangalore                                       Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Jessy Moras

Documents marked on behalf of the Complainants:

Ex.C1: 19.2.2016: Office copy of the legal notice issued to the Opposite Parties.

Ex.C2: Un-served registered post envelop issued by the complainant to the Opposite Party No.1 (2 in Numbers)

Ex.C3: Original Postal receipts for issuing legal notice to the Opposite Party No.1 to 3 (5 in numbers).

Ex.C4: Original registered post acknowledgements for having service  of legal notice dated 25.2.2016 by Opposite Party No.1 to 3 (3

          in numbers).

Ex.C5: Copy of Email conversation between complainant No.1 and Opposite Party No.1.

Ex.C6: Scanned copy of receipt issued by the Opposite Parties in the name of complainant No.2.

Ex.C7: original pass book issued by the SBI, Kankanady Branch pertaining to the complainant and others.

Ex.C8: 10.1.2015: copy of Email conversation between 1^st  Complainant and 1^st opposite Party.

           19.3.2015: copy of Email conversation between 1^st  Complainant and 1^st opposite Party.

           10.11.2015: copy of Email conversation between 1^st complainant and 1^st Opposite Party.

           12.12.2015: copy of Email conversation between 1^st  complainant and 1^st Opposite Party.

           27.4.2016: copy of Email conversation between 1^st complainant and 1^st Opposite Party.

           28.5.2016: copy of Email conversation between 1^st complainant and 1^st Opposite Party.

           16.6.2016: copy of Email conversation between 1^st complainant and 1^st Opposite Party.

           29.7.2016: copy of Email conversation between 1^st complainant and 1^st Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents marked on behalf of the Opposite Parties:

Nil

Dated: 23.03.2017                                    MEMBER