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

DATED 09^TH DAY OF JANUARY 2023

ORDER

SMT.JYOTHI N., MEMBER

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 OP1 to refund the entire amount of Rs.4,80,000/- (Rupees Four lakhs Eighty thousand only) along with 18% interest p.a., from the date of making payment till realization
2. Direct the OP to pay the complainant Rs.50,000/- (Rupees Fifty Thousand only) towards compensation for deficiency of service.
3. Direct the OP to pay compensation of Rs.50,000/- (Rupees Fifty Thousand only) to the complainant towards shock, mental and physical sufferings and loss of time due to the deficiency of service on the part of OP.
4. Grant such other relief deems fit and proper under 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 OP is the company incorporated under the registration of companies and Disha Choudary being the Managing Director of company by the name of Dreams Infra India Pvt. Ltd., and Sachin Naik being the Founder Chairman of company.  The OPs representing the company gave advertisement in daily newspaper, television, channel with attractive benefits to the Members of the general public to approach the OP for allotment of site/plots in various parts of Bangalore City, such as Kanakapura Road, Mysore Road, and electronic city and Hebbal, HAL, Bellandur etc., by putting huge sign boards with RCB cricket players advertising the name of the company on the T-shirt the company logo. In the course of their representations and assurances the other OP dishonestly induced the general public for allotment of either sites or plots in different locations of Bangalore City.  The OP deliberately and dishonestly perpetrated fraud by using forged documents as genuine and cheated the complainant and general public.

        3.     It is the specific case of the complainant that he has contact with OP for purchasing of 2 BHK apartment which was to be part of residential project known as “Dreams Susthapit”, measuring 850 Sq.ft. of super built up area situated at Sy.No.79/4, total measurement of 20 guntas, Veerasandra Village, Attibele Hobli, Anekal Tq., Bangalore Urban District, for a total consideration of Rs.16,00,000/- and the complainant has paid a sum of Rs.4,80,000/- on different dates.

4.     It is further case of the complainant that complainant with the fond hope that OP will start the project and complete the same within the spiculated period and the OP did not start the project the complainant enquiring about the delay in starting the project, the OP was postponing the same by giving one or the other reason and they did not start the project till date.  On the request and instruction of OP the complainant filed the cancellation and returned all the original documents to the OP.

        5.     In the further grievance of the complainant that the OP from the inception had no intention to develop the project and is involved in unfair trade practice and it is clear deficiency in service offered by OP. Other purchasers have also approached before this Commission by filing various complaints in this Commission.

        6.     It is further case of the complainant that he approached the jurisdiction police and the police gave printed format with filling the blanks to file the complaint with an assurance that they would get back the money from the OP. The complainant has also signed and lodged the complaint with other investors. The police have registered the case for the offences punishable u/s 420 of IPC against the OP and now the investigation taken by COD police, Karnataka state.

        7.     The complainant being harassed mentally, physically and financially due to bad and deficiency of service of OP at last has got issued a legal notice on 10.09.2018, calling upon the OP to refund the amount but the notice returned with acknowledgement the addressee left. Hence the complainant has filed this complaint.

        8.     Even though the complainant has taken the notice to the OP through the paper publication, OP has not turned up and remained absent and placed exparte.

9.       The complainant filed his affidavit evidence relies on documents-1 to 5.

10.     Heard the arguments of advocate from the complainant. Perused the written documents.

11.     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?

12.     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

13.     Point No.1 AND 2: The complaint and his affidavit evidence and the documents produced by the complainant remains unchallenged, hence there is no reason to disbelieve the evidence and documents submitted by the complainant.

14.     It is clear from the evidence and the document that the complainant impressed by the advertisement given by the OP company has booked the 2 BHK flat measuring 850 sq. ft. in the proposed project known as “Dreams Susthapit”, and paid an advance sale consideration of Rs.4,80,000/- and entered into a Memorandum of Understanding with OP.  After enquiry about the delay in starting the project the complainant came to know that the OP was postponing the same by giving one or the other reasons and they have not started the project till date.

15.     It is further case of the complainant that as per the request and instructions of OP she has filed cancellation form and returned all the original documents to OP on their assurance that they will return advance amount received from the complainant along with interest with one month.  The OP has issued the cheque for a sum of Rs.4,80,000/-, said cheque was dishonored. After that the OP closed their office and they are not available in any area of Bangalore.  The legal notice issued by the complainant returned unserved with an endorsement addressee left.

16.     Failure on the part of OP to form the sites in the layout as agreed and to execute the sale deed and to deliver the site or refund of the amount paid by the complainant as assured by the OP is clear deficiency of service.

17.     In support of his contention the complainant was examined as PW1 and he filed his affidavit evidence reiterated all the allegations made in the complaint. He has produced the Doc-1 copy of Booking form, Doc-2 Copy of Memorandum of Understanding, Doc-3 Copies of receipts issued by the company, Doc-4 copy of complaint dt.10.12.2016, Doc-5 copy of legal notice returned RPAD cover.

18.     Even though the complainant has paid an advance amount of Rs.4,80,000/- on the date of entering into Memorandum of Understanding out of the sale consideration of Rs.16,00,000/- the OP has played fraud on the complainant and not yet started the project.  The OP has also given false assurance to the complainant stating that he will return the advance amount if the complainant filed the cancellation letter and return all the original documents. The complainant has given cancellation letter with all original documents to the OP, the OP has issued cheque for Rs.4,80,000/- after collecting all the original documents with the cancellation letter, the cheque was dishonored. After that the OP closed their office in Bangalore city.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

19.     Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.4,80,000/- with interest at 9% p.a., from the date of complaint till realization.
3. OP is further directed to pay compensation of Rs.40,000/- and a sum of Rs.10,000/- towards litigation expenses to the complainant.
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 on Rs.4,80,000/- 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 09^TH day of JANUARY, 2023)

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

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

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