CC No.885.2015

Filed on 11.05.2015

Disposed on 14.07.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE14^thDAY OF JULY2016

CONSUMER COMPLAINT NO.885/2015

PRESENT:

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

                             MEMBER

Sri.BALAKRISHNA V.MASALI B.A., LL.B

              MEMBER

                                              V/S

ORDER

BY SMT. L.MAMATHA, MEMBER

1.        This Complaint was filed by the Complainantsagainst the Opposite Parties under Section-12 of the Consumer Protection Act, 1986 praying to pass an order directing the Opposite Parties to refund the advance amount of Rs.4,00,000/-along with 24% p.a. in entire advance amount from 12.12.2012 till realization.   Further to pay a sum of Rs.10,00,000/- as compensation and Rs.50,000/- towards cost of litigation to the complainant. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainantsalleged that the Opposite Party No.1 & 2 are engaged in the business of real estate and development.   The Opposite Party No.1 claims to have a reputation in marketing residential layouts and various other projects.   The Opposite Party No.2 also claims to have a great reputation in development of various residential layouts.   The complainants desirous of purchasing a residential plot in Bangalore.   For that, they approached OP1 & 2.   On 12^th December, 2012, an Agreement for Sale (Hereinafter ‘the Agreement’) was executed by the owners/sellers viz. one Mr.N.H.Prasada Reddy, one Mr.N.H.Bhaskar Reddy in favour of the complainants with Opposite Parties No.1 & 2 acting as confirming parties thereto.   As per the Agreement, it was agreed that they had agreed to sell a Site bearing No.35 measuring East to West 60 feet and North to South 40 feet totally measuring 2400 square feet carved out of Survey No.86, situated at Doddahagade Village, KasabaHobli, Anekal Taluk, Bangalore Urban District.   Further, the Schedule Property would be sold to the complainants herein at a fixed rate of Rs.700/- per square foot with the total agreed sale consideration being Rs.16,80,000/- (Rupees Sixteen Lakhs Eighteen Thousand) and the complainants paid an advance sale consideration of Rs.4,00,000/-(Rupees Four Lakhs) in favour of Opposite Party No.1.   The Opposite Party No.1 was in receipt of the aforesaid amount and the same has been acknowledged in the Agreement in addition to being acknowledged by receipts.   The said advance amount paid by the complainants to OP1, through cheque bearing No.350239 drawn on INGVysya Bank for Rs.1,00,000/- (Rupees One Lakh only) dt.20.07.2012, cheque bearing No.350246 drawn on INGVysya Bank for Rs.1,50,000/-(Rupees One Lakh Fifty Thousand only) dt.18.10.2012 and another cheque bearing No.350247 drawn on ING Vysya Bank for Rs.1,50,000/-(Rupees One Lakh Fifty Thousand only).  The said cheques were encashed by Opposite Party No.1 on 21.07.2012, 20.10.2012 and 20.11.2012 respectively.   It was also assured by Opposite Party No.1 that time was of essence in the Agreementand that the Sale Deed would be executed in favour of the purchasers after 1 month from the date of release of the Schedule Property from the BMRDA.  Believing the words of Opposite Party No.1, the complainant patiently waited for a communique from the Opposite Parties.   However, despite passing of much time viz. nearly two years since the date of execution of the Agreement, the assurances of Opposite Party No.1 & 2remained unfulfilled.   Owing to the inordinate delay and non-receipt of any information from Opposite Party No1, the complainants called up Mr.Chalapathy Naidu over phone to inform that because of the delay, the complainants were not willing to proceed further with the transaction and that the complainants wanted a refund of Rs.4,00,000/-(Rupees Four Lakhs only) paid contemporaneous to the Agreement.   After receiving many evasive replies, Mr.ChalapathyNaidu answered the call and much to the shock and surprise of the complainants blatantly and rudely notified the complainants that no sale deeds/any documents would be executed in the near-future.    The Opposite Party No.1 and2 were also unreachable over phone/emails.   The complainants being put to immense financial stress and mental agony was constrained to have issued legal notice  dt.25.02.2015 to Opposite Party No.1 & 2 and their land owners calling upon them to repayment of the advance sale consideration of Rs.4,00,000/-(Rupees Four Lakhs only).  However notice on Opposite Party No.1 were returned un-served with an endorsement of ‘No such firm in address’ and the notice on Opposite Party No.2 and the land owners returned with an ‘Unclaimed’ endorsement.   The complainants states that the Opposite Parties have been blatantly and fraudulently negligent and deficient in responding to the complainant’s requests for repayment of the advance amount and have been deliberately and maliciously withholding the complainant’s legitimate amount. 

3. Wherefore, in view of the foregoing circumstances, it is most respectfully prayed that this Hon’ble Forum pleased to direct the Opposite Parties to jointly and severallyrepay Rs.4,00,000/- (Rupees Four Lakhs only)paid as advance booking amount along with interest at the rate of 24% p.a. from 12.12.2012, till realization, thereof and to direct the Opposite Parties to jointly and severally compensate the complainants for Rs.10,00,000/-(Rupees Ten Lakhs only) the stress and mental agony owing to the blatantly negligent and deficient actions.  Hence, this complaint. 

4.      Even though notice was served on the Opposite Parties, the Opposite Parties fails to put their appearance, hence placed ex-parte. 

5.      In support of the complainant, the complainants havefiled their affidavit by way of evidence.   Heard the arguments of the complainants.  

6.      The points that arise for consideration are:-

1. Whether the Complainants have proved the alleged deficiency in service by the Opposite Parties?
2. If so, to what relief the Complainantsare entitled?

7.      Our findings on the above points are:-

                   POINT (1):-Affirmative

                   POINT (2):-As per the final Order

REASONS

8.      POINT NOs. 1& 2:On perusing the pleadings along with documents produced by the complainants, it reveals that the OP1 and Opposite Party No.2 are engaged in the businessof real estate and development.  The Opposite Party No.1 claims to have a reputation in marketing residential layouts and various other projects.  The Opposite Party No.2 also claims to have a great reputation in development of various residential layouts.   The complainants desirous of purchasing a residential plot in Bangalore.   Hence, a booking amount of Rs.4,00,000/- (Rupees Four Lakhs only)was paid to the Opposite Parties through cheque bearing No.350239 drawn on INGVysya Bank for Rs.1,00,000/- (Rupees One Lakh only) dt.20.07.2012, cheque bearing No.350246drawn on INGVysya Bank for Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only)dt.18.10.2012 and another cheque bearing No.350247 drawn on ING Vysya Bank for Rs.1,50,000/-(Rupees One Lakh Fifty Thousand only) dt.17.11.2012.  On 12.12.2012 an agreement for sale entered into between owners/sellers vizone Mr.N.H.Prasada Reddy, one Mr.N.H.Bhaskar Reddy infavour of the complainants with Opposite Parties acting asconfirming parties thereto.  As per the agreement,it was agreed that had agreed to sell a Site bearing No.35 measuring East to West 60 feet and North to South 40 feet totally measuring 2400 Sqft cared out of Survey No.86, situated at Doddahagade Village, KasabaHobli, Anekal Taluk, Bangalore Urban District.   The Schedule Property would be sold to the complainants herein at a fixed rate of Rs.700/- per square foot with the total agreed sale consideration being Rs.16,80,000/- (Rupees Sixteen Lakhs Eighteen Thousand).   In the agreement stating that both the parties hereby under this agreement that the sale deed will be executed in favour of the purchaser or any of his nominees after one month from the date of release from BMRDA the said Schedule property.  After lapse of one month, the complainants repeated requests to the Opposite Parties to execute the sale deed, it was merely assured to the complainants that the sale deed would be duly executed at the earliest as the project had commenced and the development was being carried on according to a fixed timeline.   Even after nearly two years passed the assurances of Opposite Parties remained unfulfilled.   During to the inordinate delay,the complainants were not willing to proceed, further with the transaction and requested Opposite Parties to refund of Rs.4,00,000/-(Rupees Four Lakhs only)as booking amount.   The complainants approached Opposite Parties over phone and emails.   But they were unreachable over phone/emails.   On 25.02.2015 the complainantssent a Legal Notice to both the Opposite Parties calling upon them to refund the advance/booking amount of Rs.4,00,000/-(Rupees Four Lakhs only) along with interest at the rate of 24% p.a. from 17.11.2012, till realization thereof.   The said Legal Notice to OP1 returned un-served with an endorsement of ‘No such firm in address’ and the notice on Opposite Party No.2 and the land owners returned with an ‘Unclaimed’ endorsement.   The said Notice is produced by the complainants.   Since the Opposite Parties have withheld the amount paid by the complainants as booking amount for almost 4 years without any valid reason, thereby, it amounts to deficiency of service on the part of the Opposite Parties.  Hence, this point is held in affirmative.  

9. POINT No.2:- In view of the finding on point No.1, we proceed to pass the following order:

ORDER

The Complaint is allowed holding that there is deficiency of service on the part of the Opposite Parties. The Opposite Parties are directed to refund a sum of Rs.4,00,000/-(Rupees Four Lakhs only) to the complainantsalong with interest at 15% p.a. from the date of payment, till order.   The Opposite Partiesare further directed to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation and Rs.10,000/- (Rupees Ten Thousand only) as costs of this litigation to the complainants.   The Opposite Parties are granted 45 days from the date of this order. 

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 14^thday of July 2016)

BALAKRISHNA V.MASALIL.MAMATHA

MEMBER                             MEMBER

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. ChandanSetty and ManasaKusuma, who being Complainants have filed their affidavit.

List of documents filed by the Advocate for Complainant:

1. Copy of the brochure/leaflet/pamphlet pertaining to Amoda Springs
2. Copy of the Agreement for Sale
3. Copy of the receipt given by Opposite Party No.1
4. Copies of the relevant portions of the passbook/e-statement of the complainants revealing encashment of the cheques
5. Copies of recent photographs of ‘Amoda Springs’
6. Office copy of the legal Notice dt.25^th February, 2015,
7. Copies of he returned postal envelopes
8. Copies of all email correspondences between the complainants and Opposite Parties

Witness examined on behalf of the Opposite Parties:

Ex-parte

List of documents filed by the Opposite Parties:

NIL

MEMBER                                                      MEMBER