CC No.581/2018                                Date of filing: 03.04.2018

                                                          Date of Disposal: 09.12.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 09^TH DAY OF DECEMBER 2019

CONSUMER COMPLAINT NO.581/2018

PRESENT:

Sri Venkatasudarshan .D.R.,  B.Com, LL.M.,   …. PRESIDENT

Smt. L.Mamatha, B.A., (Law), LL.B.                  …. MEMBER

COMPLAINANTS:

1. Ms. Renuka,

Aged about 22 years

R/at No.2157, 11^th cross,

Sanjeevini Nagar, Sahakarnagar,

Post Bengaluru North,

2. Mr. Eshwar Rao,

Aged about 52 years,

R/at No.2157, 11^th cross,

Sanjeevini Nagar, Sahakarnagar

Post, Bengaluru North,

3. Mrs. Hemavathi,

Aged about 45 years,

R/at No.2157, 11^th cross,

Sanjeevini Nagar, Sahakarnagar

Post, Bengaluru North

(Complainant – In person)          

V/s

OPPONENTS:

Aastha Properties Kum.Kalavathi,

D/o Shanmugham Naidu,

Office at No.1, Ground Floor,

Chandra layout,

(Opponent by Sri. D.M. Manjunath, Advocate)

= = = = = = = = = = = =                              

Written by SMT.L.MAMATHA, MEMBER

            ******

//ORDER//

This is a complaint filed by Ms. Renuka and others under section 12 of the Consumer Protection Act 1986 against M/s Aastha Properties praying for a direction to the opposite party to refund a sum of Rs.1,00,000/- with interest and also to pay another sum of Rs.50,000/- as compensation.

2.      The brief facts of the case of the complainants as per the complaint are that after seeing an advertisement which appeared in TV-9 channel Aastha Properties on 01.02.2017 the complainants enquired about the same.  Since the complainants have enquired after seeing the advertisements appeared in TV-9 the opponent has offered to allot a site at special price of 249 per Sq.ft. with EMI of Rs.5,000/- every month.  The total cost of the site was Rs.2,99,800/-.  On 02.02.2017 the complainants went in a cab of opposite party to a place taken by Mr. Vishwa, the General Manager.  It was the complainant No.2 Mr. Eshwar Rao and his son Rajesh who went to see the site and the phase No.1 was already sold out.  They have agreed to allot the site in Phase No.2 which is survey No.202/2 at Doddanaanjerlu Village, Somenahalli Hobli, Gudibande Taluk, Chikkaballapur District which is known Apple nest.  They were taken to the office at Chandra layout, Bangalore where the opponent convinced them to book for a site paying Rs.5,000/-.  The complainant gave a cheque for Rs.5,000/- drawn on State Bank of Mysore in the name of the first complainant Renuka, who is the daughter of Eshwar Rao.

3. It is the case of the complainant that similarly the advance payments were made by way of six cheques of Rs.5,000/- each drawn on State Bank of Mysore to the opposite party.  Apart from that a sum of Rs.70,000/- was also paid through cheque bearing No.951266 to the opposite party.  Though the cheques were given from the account of the 2^nd complainant and his wife, the site was booked in the name of his daughter Renuka.  That was because Mr. Eshwar Rao was a watchman in ATM, who has removed from service on account of over age and his wife is a home maker and therefore in order to do something for the better future life of their daughter, the site was booked in the name of the daughter of the complainant.

4. It is the further case of the complainant that after collecting Rs.25,000/- over a period of 9 months the opponent started to demanding for more amount so that they can enter into an agreement as soon as possible as a site papers would be ready. By saying so the opposite party collected Rs.70,000/-.  It is the case of the complainant that Mr. Vishwa, who took the complainants to see the site has started playing double game by saying while they were travelling in the cab that the site which we wanted to buy was not having the value. So he suggested a different site for which Mr. Eshwar Rao and his wife did not agree.  Though Mr. Vishwa showed another site with value of Rs.369/- per Sq.ft,  the complainants did not agree and asked him to show the site which they had earlier seen.

5. It is the further case of the complainant that after collecting the sum of Rs.1,00,000/- on 12.07.2017 the opponent started saying that the papers are not ready and asked the complainants to go over to the office after few days.  This type of answers was being given by the opposite party time and again.  When the opposite party was bent upon allotting a different site which is 2 to 3 kilo meters away from the village the complainants did not agree and finally the complainants not being satisfied, demanded for the refund of the amount.  The opposite party did not refund, instead went on postponing for one or the other reasons.  Hence, this complaint.

6. There is only one opposite party in this case.  After admitting the complaint the notice was ordered to be issued to the opposite party.  The opposite party entered appearance and filed version.

7.  In the version filed it is admitted that there was an advertisement regarding AASTHA properties dated 01.02.2017 to sell the sites at 249 per Sq.ft. for a sum of Rs.2,90,000/- on a monthly EMI of Rs.5,000/-.  It is also admitted that Mr. Eshwar Rao had booked one site in the name of his daughter Renuka.  It is also admitted that the complainants have paid in all Rs.1,00,000/-.  It is stated that the complainants have violated the terms of the agreement.  The complainants were not ready to pay the balance amount of Rs.1,98,800/- to get the site registered.  All other averments in the complaint have been denied.  It is contended that there was no co-operation from the complainant’s side to fulfill the obligation.  Hence, prays for dismissing the complaint.

8. When the case was set down for recording evidence, the complainant Sri. Eshwar Rao in his capacity and also power of attorney holder of his daughter and his wife got himself examined by filing his affidavit evidence.  On behalf of the opponent one person by name Kalavathi, who is the CEO of Aastha Properties filed her affidavit evidence. 

9. The complainants as well as the opponent have filed their written arguments.

10. The points that arise for our determination are:-

1. Whether the complainants prove that there was deficiency in service on the part of the opponent?

2. If so what is the relief to which the Complainants are entitle?

11.    Our findings on the above points are:-

Point No.1:- In the Affirmative

Point No.2:- Partly in the Affirmative

Point No.3:- As per the final order

                             for the following.

12.    POINT NO.1:-     This is the complaint filed under section 12 of the Consumer Protection Act by the complainants Ms.Renuka and 2 Others against the opposite party praying for direction to the opposite party to refund Rs.1,00,000/- and also to pay Rs.50,000/- as compensation and also for cost of litigation.

13.   On perusing the pleadings along with documents produced by the complainants, it reveals that the advertisement which appeared in T.V.9 channel Aastha Properties’ on 01.02.2017 the complainants enquired about the same.  In T.V.9 the opposite party has offered to allot a site at special price of 249 per sq.ft. with EMI of Rs.5,000/- every month. The total cost of the site was Rs.2,99,800/-.  On 02.02.2017, the complainant No.2 and his son went in a cab of opposite party to a place taken by Mr.Vishwa, the General Manager of opposite party.  But Phase No.1 was already sold out.  Then opposite party have agreed to allot the site in phase No.2 which is in survey No.202/2 at Doddananjerlu Village, Somenahalli Hobli, Gudibande Taluk, Chikkaballapura District which is known as Apple nest.  Complainants made payments through 6 cheques of Rs.5,000/- each drawn on SBM to opposite party.  Apart from that a sum of Rs.70,000/- was also paid through cheque bearing No.951266.  Though the cheques were given from the account of the 2^nd complainant and his wife, the site was booked in the name of his daughter Renuka.  After collecting Rs.1,00,000/- opposite party started saying that the papers are not ready.  Complainants repeatedly requested opposite party to allot site.  But the opposite party bent upon allotting different site which is 2 to 3 km away from village.  So complainants did not agree for the same and demanded for refund of money.  But opposite party went on postponing by giving one or other reasons.  To substantiate this case, the complainant No.2 in his capacity as complainant and also as Power of Attorney Holder of his daughter and his wife got himself examined and filed his affidavit evidence and sworn to its contents in which he has reiterated all the complainants’ averments. The complainants produced original advance agreement for site dated 23.07.2017, the booking receipt dated 02.02.2017 issued by opposite party, the receipt No.566 dated 12.07.2017 issued by opposite party and statement of bank account of S B Account number complainant No.2, another statement of account of complainant No.3 which are all marked as Ex.P1 to P5.  By looking into these documents it clearly shows that the complainant booked a site at special price of 249 per sq.ft and paid Rs.5,000/- each through 6 cheques and Rs.70,000/- through cheque bearing No.951266.  But opposite party not ready to allot agreed site but postponed by giving one or other reasons.  Due to this complainants suffered mental agony and financial loss.  By all these it clearly shows that opposite party failed to do this part of service.  Therefore from the evidence available on record it clearly goes to show that opposite party neither allot site nor refund the advance amount to the complainants.

14.     The opposite party has admitted that there was an advertisement regarding Aastha properties in TV9 on 01.02.2017 to sell sites at Rs.249 sq.ft for a sum of Rs.2,90,000/- on monthly EMI of Rs.5,000/-.  It is also admitted that 2^nd complainant booked one site in the name of 1^st complainant and paid Rs.1,00,000/-.  It is stated that the complainants have violated the terms of the agreement.  In support of this defence one Mrs. Kalavathi of opposite party has filed her affidavit evidence.  In her sworn testimony she has reiterated the same. Hence prays for dismissal of complaint.

15.     With this it can no doubt be said that complainants booked plot with opposite party for a total consideration amount of Rs.2,99,800/- out of which they paid Rs.1,00,000/- to the opposite party.  The opposite party acknowledged the receipt for said amount.  In the version opposite party admitted the allegation made by the complainants and agreed to refund the amount to the complainants.  Complainants spend their hard earned money with fond of getting site for their residential purpose.  But opposite party has not fulfilled the promise.  Due to the deficient act of opposite party the complainants suffered mental agony and suffered financial loss.  It is the duty of the opposite party to abide by their promise.  But they failed to do the same.  Instead of that opposite party made allegations against complainants.  The opposite party concealed the true facts. There is deficiency of service on the part of the opposite party.  Accordingly we answer point No.1 in the affirmative and in favour of complainants.

16.   POINT NO.2 AND 3:-     In view of finding recorded on point No.1 holding in affirmative and thereby making opposite party liable for its acts of deficiency of service, the next aspect is to be considered is the relief to which the complainants are entitled. 

17.  The complainant sought for direction to the opposite party to refund Rs.1,00,000/- together with interest from the date of payment till the date of actual payment. This claim in our view is fully justified and therefore the opposite party is liable to refund the advance amount of Rs.1,00,000/-.  The complainant has paid Rs.1,00,000/- to the opposite party towards advance.  The opposite party is liable to refund the same to the complainants for the reason already discussed above.  Apart from this the opposite party is also liable to pay interest on the said sum.  This is because the said money being the hard earned money of the complainants is blocked with the opposite party.  The opposite party has got enriched at the cost of the complainants.  Therefore the opposite party has to compensate the loss occasioned to the complainants by paying interest on the said sum.  The complainants claimed interest at the rate of 18% P.A. This is excessive.  The grant of interest @ 15% P.A. as the said sum from 23.07.2017 from the date of actual payment would in our view meet the ends of justice.   

18.    Apart from the above the opposite party made the complainants to suffer both physically and mentally by not allotting site nor refund the advanced amount.  This type of conduct is not expected from the establishment like opposite party whose business includes the selling of plots.  The opposite party is bound to compensate the complainants for the mental agony would meet the ends of justice.  Having regard to the facts and circumstances of the case we deem it fit and proper to award Rs.30,000/- as compensation to the complainants for causing mental agony which is payable by opposite party.

19.     The conduct of opposite party has driven the complainants to file this complaint in the year 2018 and therefore incurred expenditure in order to take this litigation to a logical end.  Therefore this also needs to be compensated by the opposite party.  We award a sum of Rs.3,000/- being the cost of the litigation.  Accordingly we answer point No.2 in the affirmative and proceed to pass the following final order:   

-:ORDER:-

1. The complaint filed by the complainants Ms.Renuka.E and 2 others U/s 12 of the Consumer Protection Act 1986 against the opposite party is allowed holding that there is deficiency in service on the part of the opposite party.
2. The opposite party is directed to refund a sum of Rs.1,00,000/- (Rupees One Lakh only) along with interest at the rate of 15% P.A. from the date of respective payment to till the date of realization to the complainants.
3. The complainants are also entitled to receive a sum of Rs.30,000/- (Rupees Thirty Thousand only) from opposite party as compensation for the mental agony undergone by them.

4.  The complainants are also entitled to receive a sum of Rs.3,000/- (Rupees Three Thousand only) from the opposite party being the cost of litigation.

5. The opposite party is liable to comply the order with the above directions within 30 days from the date of the order.

     Supply free copy of this order to both the parties.

(Dictated to the Steno, typed by her, transcript corrected, revised and then pronounced by the open Forum on 09^TH day of DECEMBER 2019)                        

          (L.Mamatha)                       (D.R.Venkatasudarshan)                 

        MEMBER                                  PRESIDENT

//ANNEXURE//

Witness examined for the complainant side:

Complainants – Mr.Eshwar, who being the complainant has filed his affidavit.

List of documents filed by the complainants:

1. Original Advance Agreement for Site dated 23.07.2017 is marked as Ex.P1
2. Booking Receipt dated 02.02.2017 is marked as Ex.P2
3. Receipt dated 12.07.2017 is marked as Ex.P3
4. Statement of Account are marked as Ex.P4 and Ex.P5
5. Legal notice dated 25.11.2017 with acknowledgement

Witness examined on behalf of the Opposite Parties:

Mrs.Kalavthi, working as Chief Executive Officer who being the opposite party has filed her affidavit.

List of documents filed by the Opposite parties:

• Nil -

         (L.MAMATHA)                          (D.R.VENKATASUDARSHAN)                 

           MEMBER                                       PRESIDENT