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

DATED 8^th DAY OF FEBRUARY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complainant has filed this complaint under Section 35 of C.P.Act, 2019 (hereinafter referred as an Act) for the following reliefs:-

(a) Direct the OP to pay an amount of Rs.3,00,000/- in favour of the complainant immediately along with interest at the rate of 18% p.a.

(b) Direct the OP to pay a sum of Rs.1,00,000/- towards compensation for mental agony and financial loss suffered by the complainant.

(c) and to grant costs of the proceedings and to pass such other suitable relief which this Hon’ble Court deem fit to grant in the circumstances of the case in the interest of justice and equity.

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

The complainant has paid Rs.3,00,000/- to the OP as advance for site measuring 1200 sq.ft.

3. On 28.12.2020 he had been to the office of the OP wherein office boy gave him a cover containing two cheques for Rs.1,50,000/- each dated 26.08.2021 and 26.09.2021.  The complainant cancelled the agreement of sale on 06.07.2020.

4. The complainant by serving legal notice dated 29.12.2020 called upon the OP to refund his money.  But, the OP failed to refund his advance money.  This act of the OP amounts to deficiency of service.  Hence, this complaint.

5. In response to the notice, the OP appears, but fails to file version vide order dated 07.04.2021.

6. The complainant has filed his affidavit evidence and relies on 14 documents.  Heard the arguments of advocate for the complainant only.  No argument is advanced on behalf of OP.       

7. The following points arise for our consideration:-

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

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

       Point No.1:  In the affirmative.

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

9. Point Nos.1 and 2:  These two points are correlated to each other.  Even though, OP appeared through its counsel, but failed to contest the matter by filling version. 
10. The complainant has reiterated the facts pleaded in the complaint in his affidavit evidence and relied on 14 documents. 
11. The evidence produced by the complainant indicates that the complainant and OP have entered into assessment agreement of sale dated 06.09.2019 in respect of site measuring 30 x 40 ft. for sale consideration of Rs.9,00,000/-.  The agreement indicates that the complainant has paid Rs.2,00,000/- by means of a cheque as booking amount and agreed to pay balance amount of Rs.7,00,000/- at the time of registration of sale deed.  Ex.A.2 is the copy of the booking form.  It is proved from the statement of account produced along with Ex.A.2 booking form.  Ex.A.3 to Ex.A.8 are the receipts produced by complainant as he has paid in all Rs.3,00,000/- on different dates to OP in respect of the site.  But, due to in different attitude of the OP, the complainant by issuing letter dated 06.07.2020 cancelled the agreement and called upon the OP to refund of advance amount.  Ex.A.10 is the cancellation request form.
12. It is also the definite case of the complainant that the OP issued two cheques of Rs.1,50,000/- each towards refund of advance amount.  The issuance of two cheques is proved from Ex.A.11. By serving Ex.A.12 legal notice dated 29.12.2020, the complainant called upon the OP to refund Rs.3,00,000/- with interest at 18% p.a. within 15 days.  Despite receipt of this legal notice, as could be seen from Ex.A.13 and Ex.A.14 that the OP failed to refund the amount.  This act amounts to deficiency of service.  There is no contra evidence to disbelieve the case of the complainant.  The complainant proves the deficiency of service.  Therefore, complainant is entitled to refund of Rs.3,00,000/- from OP.
13. Even though, complainant proves payment of Rs.3,00,000/- on different dates and issuance of two cheques dated 26.08.2021 and 26.09.2021.  But, complaint came to be filed on 20.02.2021.  The OP even though issued post-dated cheques dated 26.08.2021 and 26.09.2021.  But, till this date failed to refund amount of Rs.3,00,000/-.  The complainant is entitled to refund of Rs.3,00,000/- from the OP.
14. The complainant claims 24% p.a. interest on this amount.  It is relevant to refer Ex.A.2 which indicates general terms and conditions.  It is relevant to refer certain important conditions which read thus:-

In case of cancellation of booking by purchaser Brundavan Properties will not be liable to pay any interest on the booking amount paid.

Refund of booking amount will be done after 90 working days from date of cancellation.

Cancellation without a valid reason 15% of booking amount will be deducted towards service and transport charges.

15. Even though, the OP issued letter dated 06.07.2020 cancelling the agreement due to personal reason.  But, OP failed to refund Rs.3,00,000/- within 90 days from 06.07.2020.  There is no agreement enabling the complainant to claim 18% p.a.  The OP failed to refund Rs.3,00,000/- even expiry of 90 days from 06.07.2020.  Under such circumstances, the OP is liable to pay interest at 10% p.a. from 06.10.2020 till realization as interest claimed by the complainant is exorbitant.
16. When we are granting interest at 10% p.a., it is not a fit case to award compensation.  The complainant has availed the service of advocate therefore, cost of litigation is quantified at Rs.10,000/-.
17. Point No.3:- Having regard to the discussion referred above, the complaint requires to be allowed in part.  The OP is liable to pay refund Rs.3,00,000/- with interest at 10% p.a. from 06.10.2020 till realization to the complainant and also liable to pay Rs.10,000/- towards cost of litigation.  The claim of compensation is rejected.  It is proper to put a condition on the OP to comply this order within stipulated period, failing which the OP shall liable to pay additional interest at 2% p.a. in case of voilaiton of condition. Hence, we proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OP shall refund Rs.3,00,000/- with interest at 10% p.a. from 06.10.2020 till realization to the complainant and also to pay Rs.10,000/- towards cost of litigation. 
3. The claim of compensation is rejected.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days till realization to the complainant.  
5. Furnish the copy of this order and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 8^th day of February, 2022)

Documents produced by the Complainant which are marked as Ex.A.1 to Ex.A.14: