BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

29^th DAY OF NOVEMBER 2016

O R D E R

SMT. SHANTHA P.K, MEMBER

The complainant’s have filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to repay the booking amount of Rs.15,22,500/-, to pay interest at the rate of 24% p.a. from the date of MOU till the date of realization, to pay cost of the proceedings and other reliefs deems fit.

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

The complainants approached OP with an intention to buy an Apartment Flat in the month of August 2014.  At that time the OP had launched a new apartment project in the name and style “SAMARPIT” near Manyata Tech Park, Nagwara, Bangalore.  Initially the first complainant has booked one flat in his name at 100% payment option.  As it was a pre-launch offer DREAMZ fixed the price at Rs.13,50,000/-.  The First complainant issued two cheques.  The details are given as under.

1. Chq. No.973811 drawn on Bank SBI dated 18.08.2014 for Amount of Rs.4,50,000.

2. Chq. No.973816 drawn on Bank SBI dated 18.08.2014 for Amount of Rs.9,00,000/-.

After this, the complainants decided to book two flats at 50% payment option i.e., 50% of payment to be done immediately and 50% payment to be made by Bank loan once the project started.  OP fixed the price at Rs.15,22,500/- for each flat.  Accordingly the complainants had to pay Rs.7,61,250/- for each flat.  For two flats it would be Rs.15,22,500/-.  Since the complainants had already paid Rs.13,50,000/-, the balance payment of Rs.1,72,500/- is due.  The complainant paid Rs.1,72,500/- through cheque No.264840 drawn on Bank SBI dated 23.08.2014.  The OP executed two MOU’s between the first complainant and OP, represented by its Managing director Ms.Disha Choudhary, dated 24.08.2014 and second MOU between the second complainant and OP represented by its Managing Director Ms.Disha Choudhary, dated 03.09.2014.  Till this date, the OP has not done anything at the schedule property.  In the past two years since the MOU was signed OP gave options to the complainants to change to other projects.  But none of them were in any signs of work progress, let alone completion.  In the month of April 2016 the complainants issued a notice to the OP through their advocate asking for termination of the MOU since the OP has not commenced any work at the schedule property even after 20 months from the date of signing the MOU.  For this the OP replied through their advocate, asking the complainant to meet in the office of OP for amicable settlement resolving the issue or to initiate the process of cancellation.  The first complainant met OP executives in the month of June 2016 and asked them to initiate the process of cancellation and refund the booking amount.  But the executives of OP convinced the complainants to swap the booking of flats from ‘SAMARPIT’ project to another project near Bommanahalli lake.  The complainants booked up the project but were not satisfied with the credential of the site as it was abutting the lake embankment and looked to be on encroached land of the lake.  The complainants sent a letter for cancellation of booking to the OP through registered post with acknowledgement due on 29^th June 2016.  The Acknowledgement was duly returned on 4^th July 2016.  But to this date there has been no communication from the OP regarding the cancellation of the booking and refund of the same.  Hence complainants filed this complaint. 

3. After registration of the complaint, notice was issued to OP.  Inspite of service of notice, OP remained absent without any sufficient reason and cause.  Hence OP is placed ex-parte and the case was posted for filing affidavit of the complainants. 

4. In support of complaint averments, Sri A.J. Vijayan and his wife Geetha Rani have filed their affidavit by way of evidence reiterating the complaint averments along with documents. 

5. The sworn testimony of the complainants have remained unchallenged. OP neither filed version nor denied the sworn testimony of the complainants.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainants.

6. We have perused the documents produced by the complainants, it is clear that, the OP has admitted that certain amount has been paid by the complainants towards the booking of Flats.  The complainant produced the receipt No.2147, dated 18^th Aug 2014 for Rs.13,50,000/- received by OP from the second complainant as document No.1.  The amount paid in two cheques through the SBI Bank by way of Cheque No.973811 for Rs.4,50,000/- and cheque No.973816 for Rs.9,00,000/-.  The Bank statement dated 31^st Aug 2016 produced as document No.2.  Another receipt No.12687 issued in the name of the first complainant on 23^rd Aug 2014 for Rs.1,72,500/- produced as document No.3, the bank statement dated 31^st Aug 2016 produced as document No.4.  Thereafter two MOU’s are executed between the first complainant and OP dated 24.08.2014 and also between the second complainant and OP dated 30.09.2014 is produced as document No.5 & 6 respectively.  When the OP has not done anything at the schedule property more so described fully in MOU, the complainant got issued a notice to the OP.  Copy of which is produced as document No 7.  The reply of OP for this notice is produced as document No.8 asking the complainant to meet in the office of OP for amicable settlement resolving the issue or to initiate the process of cancellation. 

7. Though the complainant met the OP executives but not convinced to swap the booking of flats from the ‘SAMARPIT’ project to another project near Bommanahalli lake.  The complainants were not happy and satisfied.  They sent cancellation of booking to OP.  But OP neither replied nor refund the amount.  This conduct of OP amounts to grave deficiency of service.  OP has failed to refund the amount to the complainants despite having failed to allot the Flat as promised by them.  The conduct of OP must have put the complainants to great hardship, inconvenience and mental agony.  Therefore, OP is liable to pay compensation to the complainants apart from refunding the amount together with interest. 

8. Due to the irresponsible behavior on the part of OP, the complainant has suffered financial loss and mental agony.  The conduct of the OP in not refunding advance amount to the complainant amounts to gross negligence and deficiency in service on their part.  The complainants suffered inconvenience and mental agony due to non performance of the promise made by the OP.  Certainly the complainants must have suffered mental agony and financial loss because of not refunding the advance amount paid by them.

9. The very fact of OP not contesting the proceedings leads us to draw an inference that OP is admitting the claim of the complainants.  There is no reason to disbelieve the unchallenged affidavit of the complainants and the documents produced.  The complainants suffered inconvenience and mental agony due to non-performance of the promise made by the OP.  In view of the discussions made above, we are of the considered opinion that the complainants have successfully proved the deficiency of service on the part of OP.  Therefore, OP has to be directed to repay the booking amount of Rs.15,22,500/- with interest @ 18% p.a. from the date of payment till the date of realization also directed to pay compensation of Rs.50,000/- together with the litigation cost of Rs.3,000/-.

10. In the result, we proceed to pass the following.

       O R D E R

The complaint filed U/s.12 of the Consumer Protection Act, 1986 by the complainants is allowed in part.  OP is directed to pay Rs.15,22,500/- (Rupees Fifteen Lakhs Twenty Two Thousand Five Hundred only) to the complainants being the booking of apartment Flats together with interest @ 18% from the date of payment till the date of realization.  Further OP is directed to pay compensation of Rs.50,000/- along with the litigation cost of Rs.3,000/-.

OP shall comply the order passed by this Forum within a month from today.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 29^th day of November 2016)

MEMBER                            MEMBER                     PRESIDENT

Vln* 

Witnesses examined on behalf of the complainants dated 02.11.2016.

1. A.T Vijayan.
2. Geetha Rani. P.

                 OP    -       Absent

MEMBER                           MEMBER                      PRESIDENT

Vln*