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

DATED 11^th DAY OF JANUARY 2021

O R D E R

SRI.S.L.PATIL, PRESIDENT

The complainant filed this complaint under Section 12 of Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct the OP to refund the amount of Rs.11,00,000/- along with 18% interest p.a. from the date of respective payments till the date of realization, to pay Rs.50,000/- towards compensation, to pay Rs.10,000/- towards cost of litigation and to grant such other reliefs.     

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

  The complainant submits that OP is developer company and being the developer, has given advertisement in the newspapers and TVs stating that they are the leading developer in forming the residential layouts and apartments in the name and style Dreamz Sampoorna at Hebbal Village, Attibele Hobli, Anekal Taluk, Bengaluru Urban District and also offered the flats at half of the market price as a pre-launch offer with attractive discounts by offering various payment options of either 30/50/100% of the total cost.  After seeing the advertisement and got lured from the attractive discounts, the complainant has visited the office of OP on 31.07.2012 with an intent to buy a flat in its proposed residential apartment project by name Dreamz Sampoorna and also OP promised to complainant it would complete the project and hand over the possession of the flat within 20+3 months grace period from the date of MOU to be entered between them.

Further complainant submits that by believing the words and assurance of OP, he has booked 3 BHK Flat measuring 1250 sq.ft. of the above named apartment and for which the OP has quoted Rs.11,00,000/- and opted for 100% payment and he paid sale consideration of Rs.11,00,000/- through cheque/cash in the following details:-

It is further submitted by the complainant that OP has acknowledged the receipts and had entered into memorandum of understanding on 14.08.2012 with OP and complainant and his wife Smt.Sujatha Catherine and has assured to complainant that OP would complete the project within 20+3.  Further complainant submits that after the lapse of six months, OP has requested the complainant to swap his project from Dream Sampoorna to Dream Susthapit project due to inordinate delay in commencing the said project and for which the complainant has agreed and swapped his project from Dreamz Sampoorna to Dreamz Susthapit project and has booked 3 BHK flat No.205 measuring 1150 sq.f.t. of SBA in the 2^nd Floor of the aforesaid project.  Further submits that the OP has issued a letter of allotment on 26.05.2013 by informing that the flat No.205 on the 2^nd Floor measuring 1150 (3BHK) flat with one car parking has been allotted to him and also on 05.06.2013 the OP had entered into an agreement of sale and clearly assured that they would deliver the possession of the flat within September 2014 and on same day i.e. on 05.06.2013, the OP has issued a separate acknowledgement for receiving the entire sale consideration of Rs.11,00,000/-.

Further complainant submits that he has waited till September, 2014 and visited the location to see the developments in the said project, but to his utter shock there was no piece of work was done in project and immediately he has contacted the OP and enquired the reason for delay in commencement of the project and questioned about the non-delivery of the possession of the flat in spite of payment of 100% of sale consideration and being disappointed over the OP’s delayed attitude demanded for cancellation for which the OP had consoled the complainant in nice manner and also apologized for the delay and told to him that the OP had applied for approvals from various authorities and they are about to get the approvals at earliest point of time and bought some more time on plea of getting various approvals and assured to him that they would commence the project in March 2015 and hand over the flat within January, 2017.

The complainant further submits that by believing the OP, he has waited till January, 2017 in the fond hope of getting the flat and in the month of March, 2017 he has visited the location, but there was no development in the project, then he demanded the OP for cancellation of flat, but the OP has not ready to cancel the booking made by him and never allowed him to meet the OP.  It is further submits that the OP has neither commenced the project nor returned back the advance amount to him.  The complainant further submits that the OP neither registered the flat in favour of complainant nor refunded the advance amount.  Hence, the OP’s act is purely amounts to unfair trade practice and deficiency of service on its part.  Further complainant submits that he has issued the legal notice dated 03.04.2019 for refund of his amount and the said legal notice which is sent to the Company’s registered address is returned with shara “party left”. 

The cause of action has arose on January 2017 when the OP has failed to hand over the possession of the flat as agreed by him and on 03.04.2019 when the complainant issued legal notice to the OP and all the subsequent dates.     

3. After admitting the complaint, notice was ordered to issue to the OP, OP did not appeared, hence placed exparte.

4. Complainant has tendered his evidence by way of affidavit.  He has also produced documents in support of his case and marked Ex.A.1 to A.10.   Heard the complainant.

5. The points that arise for our consideration are:

1.  Whether the Complainant prove the deficiency of service on the part of OP, if so, entitled for the relief sought for?
2. What order?

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

       Point No.1:  Partly in the affirmative.

      Point No.2:  As per the final order for the following

REASONS

7. Point No.1:  In this case, we have stated above OP did not appear to contest the claim of the Complainant by way of filing the version, hence placed exparte. Under such circumstances, non-appearance and non-filing of version can be drawn an adverse inference that, the OP has admitted the claim of the Complainant in the light of the decision reported in 2018 (1) CPR 314 (NC) in the case of M/s.Singla Builders & Promoters Ltd., vs. Aman Kumar Garg, wherein it is held that,

“Non-filing of written version to complaint before the forum, amounts to admission of the allegations levelled against them in consumer complaint”.

8. Any how we place the reliance on the available materials on record.  On going through the contents of the complaint it is evident that the complainant is entered into MOU dated 14.08.2012, allotment letter was issued on 26.05.2013 and agreement of sale on 05.06.2013 for purchase of flat No.205 measuring 1150 (3 BHK).  In this context, the complainant has paid full sale consideration amount of Rs.11,00,000/- which is evident from the document produced by the complainant.  To falsify all these facts, OP did not appeared. Upon causing notice, OP did not respond.  It is submitted by the  complainant that she visited the OP in the month of September, 2014, it was known that there was no progress with regard to commencement of construction for the same project and OP also not sure about the time for commencement of construction.  Since there was no progress, he decided to cancel the booking and demanded for cancellation of the flat.  Thereafter, he approached the OP on numerous occasions but it could not get any further refund.  Hence, the complainant sought for refund of amount of Rs.11,00,000/- with interest at 18% p.a., etc., In this context to place the reliance of the judgement reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund of earnest money.

“This decision again followed by NCDRC in the decision reported in 2018 (1) CPR 436 (NC) in the case of Vatika Limited., V/s Shaleen Chugh and Anr. Wherein the important point is stated as under:

The act of the Petitioner in not refunding the amount deposited by the Complainants despite not having completed the project on time and further not even having communicated the promised date of delivery of possession, amounts to deficiency in service”.

Hence, option is left open to him for enforcement of the agreement of sale directing the OP for registration of the sale deed if not sought for refund of money.  In this context, we inclined to direct the OP to refund the amount of Rs.11,00,000/.

9. With regard to the compensation and interest is concerned, if the interest is charged at the rate of 10% p.a. by way of compensation in the light decision reported in 2019 (1) CPR 650 (NC) in the case of Pradeep Kumar Gupta and Ors. vs. Ireo Grace Realtech Pvt. Ltd., we hope ends of justice would meet sufficiently.  In the said judgement, it was held that:

“Consumer Protection Act, 1986 – Sec.14(1)(c) & (d) and 21–Real estate – Booking of residential flats by Complainants – Case of complainants is that not only possession of apartments was not offered to them, even construction is not complete despite they having made substantial payment to OP – If a builder fails to deliver possession of flat/plot booked with him, within time period committed for this purpose and is unable to justify the said delay, this would constitute defect or deficiency in service rendered by him to buyer and in such a case, this Commission, in exercise of powers conferred upon it by Section 14(1) (c) & (d) of Consumer Protection Act would be competent to direct refund of amount paid by buyer to builder, along with appropriate compensation for loss or injury suffered by buyer due to defect/deficiency in services rendered to him by builder-In all consumer complaints, opposite party shall refund entire principal amount received from complainants along with compensation in form of 10% simple interest- OP shall also pay sum of Rs.25,000/- as cost of litigation in each complaint”.

10. In the light of the decision cited supra, we come to the conclusion that complainant has proved the deficiency in service much less the unfair trade practice played by the OP.  Accordingly, the complainant is entitled to Rs11,00,000/- with interest at the rate of 10% p.a. by way of compensation with litigation cost of Rs.5,000/-.  Accordingly, we answer the point No.1 partly in the affirmative. 

11. Point No.2:  In the result, we pass the following:

O R D E R

1. The complaint filed by the complainant U/s 12 of the Consumer Protection Act, 1986 are allowed in part. 
2. The OP is directed to refund an amount of Rs.11,00,000/- (Rupees eleven thousand only) with interest at the rate of 10% p.a. by way of compensation from the date of deposit till realization with litigation cost of Rs.5,000/-.  
3. We also direct the OP to realize the above said amounts to the Complainant within 3 months from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.
4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 11^th day of January, 2021).

List of documents produced by the complainant marked as Ex.A.1 to A.10 are as follows:-