BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

27^th DAY OF OCTOBER 2016

O R D E R

SMT. P.K SHANTHA, MEMBER

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to refund amount of Rs.4,74,000/-, to pay interest @ 12% p.a on Rs.4,74,000/-, to pay compensation of Rs.3,00,000/- and to pay Rs.2,00,000/- towards expenses and financial loss suffered by the complainant along with cost of the proceedings.

2. The brief averments made in the complaint are as under:

The complainant has booked a 2 BHK Flat in the proposed project of OP-1 for Flat No.E-210 by paying a sum of Rs.1,00,000/- through cheque drawn on HDFC Bank, Cambridge Branch.  OP issued a receipt and booking dated 08.03.2015 to the complainant.  Subsequently the complainant paid Rs.3,74,000/- to the OP through cheque drawn on HDFC Bank.  For that also OP issued receipt dated 13.04.2015.  On regular follow up from complainant for the aforesaid Flat the OPs expressed their inability to construct/complete the project due to defect in the land documents and promised to refund the advance amount of Rs.4,74,000/-.  Pursuantly, in order to discharge their liability, OP had issued a cheque dated 10.03.2016 for a sum of Rs.4,74,000/- to the complainant.  When the aforesaid cheque was presented by the complainant it was returned by a memo dated 28.04.2016 with a endorsement “Insufficient Funds”.  Complainant felt deficiency of service and unfair trade practice on the part of OPs.  Complainant got issued legal notice dated 02.05.2016 to OPs calling upon them to repay the amount.  OPs not replied to the notice.  OPs failed to construct the apartment after receiving the consideration amount till date the OPs have not refunded the amount.  Hence the complainant has approached this Forum for the reliefs. 

3. After registration of the complaint, notice was issued to OPs.  Inspite of service of notice, OPs remained absent without sufficient reasons and cause.  Hence, OPs are placed ex-parte and case was posted for filing affidavit of the complainant.

4. In support of complaint averments, the complainant in this case filed his affidavit by way of evidence reiterating the complaint averments along with documents.

5. The sworn testimony of the complainant has remained unchallenged.  OPs neither filed version not denied the sworn testimony of the complainant.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainant.

6. We have perused the documents produced by the complainant.  Document No.1 is the copy of receipt No.509 dated 08.03.2015 for Rs.1,00,000/-.  Document No.2 is also the copy of receipt No.521 dated 13.04.2015 for Rs.3,74,000/-.  Document No.3 is the booking form in which the complainant has booked the Flat on 08.03.2015 for a total cost of Rs.23,70,000/-.  Document No.4 is the copy of HDFC Bank cheque No.448386 dated 10.03.2016 in favour of complainant.  Document No.5 is the memo dated 28.04.2016 with endorsement of ‘Insufficient Funds’.  Document No.6 is the copy of legal notice issued by the complainant dated 02.05.2016 through his advocate.

7. On perusal of oral and documentary evidence produced by the complainant, it is crystal clear that OP has received Rs.4,74,000/- paid by the complainant towards the booking of the Flat.  The OPs themselves expressed their inability to construct/complete the project due to defect in land documents and promised to refund the advance amount of Rs.4,74,000/-.  But OPs failed to do so.  This conduct of OPs amounts to deficiency of service.  Further the cheque given by them got bounced and even after regular follow up the OPs have not refunded the amount till date which amounts to unfair trade practice.  The complainant invested his hard earned money with the sole intention to buy his dream house.  The complainant unable to fulfill his dream due to the non performance of the promise made by the OPs caused hardship, inconvenience and mental agony.  The OPs received the notice issued but have not replied nor returned the advance amount of Rs.4,74,000/- which amounts to gross negligence and deficiency of service.  Therefore, the OPs are liable to pay damages to the complainant apart from refunding the amount together with interest.  The very fact of OP not contesting the proceedings leads us to draw an inference that OPs are admitting the claim of the complainant.  There is no reason to disbelieve the unchallenged affidavit of the complainant and the documents produced.

8. In view of the discussions made above, we are of the considered opinion that the complainant has successfully proved the deficiency of service on the part of OPs.  Therefore OPs are directed to refund a sum of Rs.4,74,000/- together with interest at the rate of 12% p.a from the date of payment till the date of realization and directed to pay compensation of Rs.10,000/- for mental agony, torture and harassment along with litigation cost of Rs.3,000/-.

9. In the result, we proceed to pass the following: 

       O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are directed to refund a sum of Rs.4,74,000/- together with interest @ 12% p.a from the date of payment till the date of realization.  OPs are also directed to pay compensation of Rs.10,000/- for mental agony, torture and harassment along with litigation cost of Rs.3,000/-.

This order is to be complied within 30 days from today.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 27^th day of October 2016)

MEMBER                             MEMBER                    PRESIDENT

Vln* 

COMPLAINT No.794/2016

Witnesses examined on behalf of the complainants dated 03.10.2016.

1. Sri.Rajesh Kumar Agarwal.

   Witnesses examined on behalf of OPs – Nil.

   Documents produced by the OPs - Nil

MEMBER                             MEMBER                    PRESIDENT

Vln*