BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 28^TH DAY OF FEBRUARY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OPs to refund the entire amount of Rs.7,00,000/- along with 18% interest per annum from the date of making payments till realization.
2. Direct the OPs to pay the complainant Rs.50,000/- toward compensation for deficiency in service.
3. Direct the Ops to pay compensation of Rs.2,00,000/- to the complainant towards shock, mental and physical suffering and loss of time due to the deficiency of service on the part of OP.
4. Grant such other reliefs

2. The case set up by the complainant in brief is as under:-

The complainant has booked 2 BHK flat bearing No.203(S3) 2^nd Floor, total measuring 1135 sq. feet after super built up area in the proposed project known as NISHITA SVKM AISHWARYAA, proposed to be constructed on the site bearing No.2 and 3, Khatha No.817(Old No.115/3) measuring east to west 45 +42/2 feet and north to south 74+82/2 feet in all measuring 3349.5 sq. feet, situated at Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk, 254 sq. feet undivided share, right, title and interest in the composite schedule A property, proportionate to built up area, for a sale consideration of Rs.35,00,000/- with the OP and paid in total a sum of Rs.7,00,000/- through two cheques dated 01.01.2016, one for Rs.3,00,000/- and another for Rs.4,00,000/- issued in favour of OP3. 

3. After receipt of payments the Ops have entered into Agreement of sale. As per the Commitment letter dated 05.10.2016 if the Ops have not started the project on time, Ops have promised that they will repay the entire amount along with compensation and bank interest. Inspite of repeated requests Ops have not constructed the proposed apartment nor returned the amount to the complainant. Ops have dragging on the matter on one pretext or the other.

4. Complainant further submits that with a promise to return the amount of Rs.7,00,000/- Ops have obtained all the original documents from the complainant. Complainant has harassed mentally, physically and financially due to bad and deficient service of the OP.  Complainant got issued legal notice dated 25.02.2020 calling upon the OP to refund the amount within seven days, but the Ops have not returned the amount. Hence this complaint.

5. Though notice was served on the OPs, they have not appeared before this Commission. Hence OPs placed exparte.

6. The complainant has filed his affidavit evidence and relies on 06 documents.
7. Heard the arguments of advocate for the complainant. 

8. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

9. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

10. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint and documents 1 to 6.

11. Inspite of issue of notice through paper publication, the Ops 1, 3 and 4 remained absent. Hence OPs neither challenged the allegations made in the complaint and also documents and they remained unchallenged.

12. The complainant has booked 2 BHK flat for a total sale consideration of Rs.35,00,000/- and complainant has paid a total sum of Rs.7,00,000/- through cheque and an agreement of sale was entered into between the parties. Ops have agreed to construct and gave possession to the complainant within 15 months from 05.10.2016.

13. Inspite of repeated request Ops have not started to construct the proposed apartment and they have dragging on the matter on one pretext or the other. Hence the complainant has sent a legal notice dated 25.02.2020 calling upon the OP to refund the amount, but the Ops have not returned the amount.

14. The evidence of the complainant and documents remained unchallenged.  The document No1 to 5 clearly discloses that the complainant has booked the 2 BHK apartment as per Ex.P1 booking form dated 31.12.2015. Ex.P.2 is the Commitment letter issued by Nishita’s Properties dated 05.10.2016. Ex.P3 is the receipt dated 01.01.2016 for having paid a sum of Rs.3,00,000/- and Rs.4,00,000/- to the OPs.  Ex.P.4 is the Agreement of sale and construction. Inspite of the request, OPs neither refunded the amount nor completed the project. Under these circumstances, the complainant has clearly established the negligence and deficiency of service and unfair trade practice on the part of the OPs. Hence the complainant is entitled for the relief claimed in the complaint. Therefore we answer point No.1 in affirmative and point No.2 partly in affirmative.

15. Point No.3:- In view the discussion referred above the complaint is liable to be allowed in part and OP is liable to pay the amount of Rs.7,00,000/- with interest at 9% p.a., from the date of payment i.e., from 01.01.2016, till realization which was received by them with compensation of Rs.1,00,000/- along with litigation expenses of Rs.10,000/- to the complainant. Hence we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund Rs.7,00,000/- with interest at 9% p.a., from 01.01.2016 to till realization to the complainant.
3. OP is further directed to pay compensation of Rs.1,00,000/- to the complainant along with litigation expenses of Rs.10,000/-.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 10% p.a. after expiry of 60 days on Rs.7,00,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^th day of FEBRUARY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party;

NIL