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

DATED 27^th DAY OF JULY 2023

ORDER

SMT. K. ANITA SHIVAKUMAR, MEMBER

Complaint filed by the complainant U/s 35 of Consumer Protection Act 2019 seeking direction to OP’s to repay sum of Rs.5,00,000/- paid towards advance amount for  the site with interest at the rate of 18% per annum, direction to OP’s to pay sum of Rs.1,00,000/- as damages for mental agony, to pay sum of Rs.25,000/- towards legal expenses incurred for filing this complaint and such other reliefs.

2. Brief facts of this case are as follows:-

Complainant stated that OP’s have approached, promised, assured that they have vast experience in the field of forming layouts and selling the sites in various parts of Karnataka through the Brundavan Properties Pvt. Ltd. OP’s have formed the layout plan ‘Brundavan Pranathi’ situated at Hesarghatta Village, Hesarghatta Hobli, Bangalore North Taluk. During the month of December 2019. OP’s authorized person/manager approached complainant, represented that they have formed layout, and showed the layout plan. They also represented that number of sites are ready for registration for construction. Believing the statement of OP, the complainant had visited the office of OP, there they showed layout plan and asked complainant to select the site. Accordingly complainant chose site No.40 measuring 1200 sq ft, at the said layout. The very layout has valued a sum of Rs.6,39,000/- and asked him to pay part amount towards the sale consideration. Complainant stated in the complaint that he paid sum of Rs.5,00,000/- towards site amount to the OP by way of cheque on 30.12.2019 and on 13.01.2020. The same has been acknowledged by OP’s after realization of cheque and given receipt. OP has assured to execute the sale agreement in favor of the complainant, after completion of site will be registered sale deed in the favor of the complainant.

3.  Complainant further stated that after completion of period as assured by the OP complainant approached OP’s to furnish the copies of title document with regard to the said property in favor of complainant but OP’s are give one or the other pretext reasons to the complainant but not executed the sale deed. Thereafter complainant demanded OP to return the advance amount along with interest. After repeated request, OP has tendered 3 postdated cheques in the month of July 2021 of sum of Rs.1,66,000/-, Rs.1,66,000/- and sum of Rs.1,67,000/- cheques bearing No.000370, 000371, 000372 drawn at ICICI Branch, Rajajinagar Branch, Bangalore dated 26.08.2021 and 26.10.2021 to clear the sale consideration amount. OP given assurances that the said cheques will be realized without any problem. But the complainant presented the cheques to encash, they dishonored for the reason of insufficient fund. Complainant alleged that OP’s neither returned the advance amount nor registered the sale deed in favor of the complainant, even after several requests made personally to OP’s. Hence complainant stated that it caused huge damages and loss, which amounts to deficiency of service on the part of OP’s. For that OP’s are liable to compensate. 

4. Complainant further stated that he caused legal notice on 10.11.2021 through his counsel by RPAD calling upon OP to refund the advance amount within 15 days but the notice sent to OP’s returned un-served with a postal endorsement that “always door locked”. Complainant was very much in need of site, only believing the OP’s representation and assurances hoping to build his own house by purchasing the site in the said layout. The negligence, carelessness and irresponsibility attitude of OP. complainant undergone mental and financial harm. By exhausting all the avenues, complainant approached this commission for the relief referred supra.

5. Notice sent to OP’s No.1 to 2 through RPAD, were returned as door locked. After complainant furnished the correct address of OP’s, notice duly served on OP No.3 only. OP No.3 called out, was absent, hence placed Ex-parte. The stage is for taking steps against OP No.1&2 but the complainant did not take steps, in spite of sufficient time granted to him. Hence, complaint is dismissed against OP No.1&2 as steps not taken.

6. The stage is set down to adduce affidavit evidence of complainant. In spite of giving sufficient opportunities complainant has neither taken steps against OP No.1&2 nor adduce his evidence. Hence, affidavit evidence of complainant is taken as NIL. Counsel for complainant was absent on the date of argument. Hence, argument on the part of complainant is taken as heard. We perused the document on record.

7.  On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant has proves the deficiency of service on the part of OP’s?

ii) Whether complainant is entitled for the relief?

iii) What order?

8.  Our answers to the above points are as follows:-

Point No.1:- Negative.

Point No.2:- Negative.

Point No.3:- As per the final order.            

                  REASONS

9. Point No.1:- Upon going through the documents placed before the commission complainant has submitted sale agreement which discloses OP’s have formed the layouts situated at Hesaraghatta hobli, Bangalore North Taluk. As per the assurances given by OP’s complainant has decided to purchase the site at the said layout that is ‘ Brundavana Pranathi’  and he chose the site bearing No.40 measuring 40*30 feet. It also discloses that the sital value for 1200 sq ft is for sum of Rs.6,39,000/-. Out of that complainant has paid Rs.5,00,000/- in two installments that is on 30.12.2019 and on 13.01.2020 by way of cheque for Rs.2,50,000/- each and also discloses his due for Rs.1,39,000/- towards sital value, OP neither formed the layout as assured and collected the money from the complainant without rendering any services to the complainant, retaining the same is unjust and unfair. Even after several requests from the complainant, OP did not come forward to execute the sale deed or refunding the money which the complainant has paid. Complainant has issued legal notice on 10.11.2021 through his counsel which was not served on them, returned as ‘door lock’.

10. OP issued 3 post dated cheques for the amount of Rs.5,00,000/- to complainant, were dishonored. The copies of cheques are produced before this commission which shows the OP has issued cheques in favor of complainant but went in vain. As per the documents placed before the commission complainant has paid Rs.5,00,000/- and made effort to get refund from the OP’s several times but the copies of cheques revealed that the payment were not refunded even after several requests and legal notice.

11. Complainant initially attended the proceedings of this commission. After 23.09.2022 complainant and his counsel remained absent till now. He neither taken steps against OP No.1&2 nor adduced evidences to prove his case and allegations against OP’s. In spite of several opportunities complainant did not taken steps against OP No.1&2 who are liable to refund his money.  Therefore the complaint against OP No.1&2 was dismissed on 29.03.2023. Later the stage was set down to adduce the affidavit evidence of complainant. Complainant did not take interest to adduce his evidence to prove his case against OP’s. Hence, it is taken as nil. Therefore the complaint against OP No.3 remained final and the case is proceeded against OP No.3 on merits. After perusing the sale agreement OP No.3 is neither the party in the sale agreement nor she is held responsible to the allegations of complainant. Hence in our considered view complainant is not interested to prove his case with a proper participation and he did not take steps against OP No.1&2 who are necessary parties to get relief. On the above reasons we answer Point No.1 in negative.

12. Point No.2:- Since the payment of Rs.5,00,000/- towards site is made by complainant is true and proved by the documents. But complainant is not adduced evidence and even OP No.3 is not liable to refund his amount, since she is not proper party to the proceedings as per the documents. For the foregoing reasons we answer Point No.2 in negative.

13. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed by complainant is hereby dismissed against OP No.3. Complaint is already dismissed against OP No.1&2 as steps not taken. No cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 27^th day of JULY, 2023)

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

Documents produced by the representative of opposite party – R.W.1;

NIL