Complaint Filed on: 25.04.2014

Disposed on: 27.02.2016

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

27^TH DAY OF FEBRUARY 2016

                     O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant in person seeking direction against the Opposite Party (herein after called as OP) to pay Rs.5,00,000/- compensation towards mental agony and financial loss on the allegations of deficiency of service.

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

On 29.04.2012 complainant paid Rs.1,00,000/- and Rs.2,75,000/- on 22.07.2012 total Rs.3,75,000/- to OP by way of cheque drawn on HDFC Bank, Bangalore towards advance sital deposit.  OP without obtaining the required approvals from the authorities i.e., conversion of land approval/khata, without having clear title of the property, without obtaining the sanctioned plan/building construction, started demanding extra amount of Rs.1,00,000/- from the complainant.  Complainant requested OP stating after obtaining the required approval he can apply for home loan from the Bank.  Later on he came to know that OP has cancelled and booked his flat to someone else for higher prices.  OP claims that they have sent legal notice to the complainant before cancellation but the complainant did not receive any such notice.  OP could have sent the legal notice to the office address of the complainant where OP has sent MOU to the complainant.  Since almost two years complainant got mental torture and wastage of his precious time due to this act of OP.  Complainant called OP several times through telephone.  OP sought the complainant to fill cancellation form stating it is a mandatory process otherwise complainant will not get his amount back.  So complainant was forced to fill up the cancellation form on 19.12.2013.  OP refunded Rs.3,75,000/- through post dated cheque after 45 days.  Cheque for Rs.2,00,000/- dated 03.02.2014 drawn on SBI Bank and another cheque for Rs.1,75,000/- dated 07.02.2014.  OP has cheated many customers like complainant.  After repeated emails and correspondence OP neither paid the compensation nor paid the interest.  Hence, the complainant has come up with the present complaint.

3. On appearance, OP filed version contending that the complainant has not approached the Forum with clean hands and complaint is not maintainable.  With regard to para.2 of the complaint averments that without approvals from authority i.e., a) conversion of land approval/khatha b) clear title c) layout plan building construction approval, OP demanding extra money for sale agreement is denied by OP as false.  Further averment made in the complaint that complainant requested that he can pay only after required approvals so that he can apply for home loan from government Bank.  Soon he came to know that OP has cancelled and booked his flat to someone else for higher prices claiming that OP sent legal notice before cancellation but he did not receive any such notice etc., are denied by OP as false and concocted story.  With regard to allegations made in para.3 of the complaint that almost for two years complainant got mental torture and wasted his precious time from OP are denied as false.  The averments made in para.4 that OP has forced him to sign/fill the cancellation form is totally false. In fact complainant himself approached and expressed his willingness to cancel the booking for his own reasons which are accepted by OP and after cancelling the booking, complainant had received his entire booking amount of Rs.3,75,000/- from OP as admitted by him.  The averments made in para.5 of the complaint are denied by OP as false.  Further prayer of complainant for Rs.5,00,000/- as compensation is not supported by any valid grounds or reasons and it is a vague in nature and cannot be considered as he has not mentioned as to what is the actual loss happened to the complainant.  There is no deficiency in service on the part of the OP.  Accordingly OP prayed for dismissal of the complaint with exemplary cost.

4. So as to prove the case, one Mr.Shyam Kumar Sinha who being the complainant has filed his affidavit by way of evidence and produced copies of documents. Complainant also filed written arguments.

5. Inspite of giving sufficient opportunity OP has failed to file affidavit by way of evidence in support of its defence version.  Hence we are unable to consider the version filed by OP.

6. One Mr.Shyam Kumar Sinha, who being the complainant herein has filed his affidavit in support of complaint averments stating that on 29.04.2012 he paid a sum of Rs.1,00,000/- towards initial booking amount and Rs.2,75,000/- by way of cheque dated 22.07.2012 drawn on HDFC Bank, Bangalore totally a sum of Rs.3,75,000/- to OP towards 2 BHK flat measuring 800 square feets in the project called Dreamz Sanskriti situated at Roopena Agrahara Village, Begur Hobli, Bangalore South Taluk.  OP without obtaining the prior required approvals from the concerned authorities like conversion of land approval, khatha, clear title, layout plan/building construction approval etc., started demanding extra amount of Rs.1,00,000/- to enter into a sale agreement.  Complainant requested OP stating he can pay the amount only after OP obtained the required approval so that he can apply for home loan from Government Bank.  Soon after, he came to know that OP has cancelled and booked his flat to someone else for a higher price fraudulently OP claimed that they have sent him a legal notice before cancellation but he did not receive any such notice.  OP could have sent the legal notice to his office address by hand where they have sent him the memorandum of understanding.  Since almost two years he suffered mental torture and wasted of his precious time in communication and visiting the OP.  Complainant asked OP through telephone, if OP has cancelled his flat why he has to come to the office of OP for filing cancellation form.  OP replied stating it is mandatory process otherwise they will not refund advance paid of Rs.3,75,000/- back.  Since he was already in loss he was forced to fill that cancellation form on 19.12.2013.  Later on OP refunded only his principal amount of Rs.3,75,000/- after lapse of 1½ years through postdated cheque of 45 days later.  A cheque dated 03.02.2014 for a sum of Rs.2,00,000/- and another cheque for Rs.1,00,000/- dated 07.02.2014 both drawn on SBI, Bangalore.  Many times complainant through telephone and on personal visits requested OP to pay the interest amount along with compensation but OP failed to respond.  OP has cheated many customers like complainant who came to office of OP for cancellation.  Complainant fear that OP may try to harm/kill him.  On 12.06.2013 complainant received only one postal letter from OP stating project offer document for Dreamz Sanskriti, stating they will get plan approval by 03.08.2014.  How can OP cancel his flat before obtaining the plan approval as mentioned in their letter.  On 19.12.2013 complainant went to the office of the OP to fill up cancellation form that time OP showed him the legal notice dated 30.06.2013 which complainant did not receive through post.  So he took the copy of the said legal notice there itself.  In the said copy of legal notice, OP has mentioned that they are cancelling his flat because he is defaulter for second part of payment and OP has communicated to him through e-mails/phones.  But in fact OP neither wrote any letter nor sent any e-mails for second part of payment.  OP telephoned him stating he is required to pay Rs.1,00,000/- for making sale agreement.  He replied stating OP should not demand any extra amount because they do not have required authorities approvals and secondly it was agreed that rest of 75% payment he will pay by home loan only.  As per the booking form the agreed mode of payment was remaining 75% of amount by way of home loan.  As per clause-6 of MOU dated 01.08.2012 OP was well aware that they will not be able to hand over his flat within 20 months i.e., 01.04.2014.  To avoid payment of rent by way of penalty of approximate Rs.10,000/- per month from April 2014 to the complainant and they have not able to start the construction till date,  hence OP cancelled his flat. To attract the customers OP has given many attractive features in the brochure e.g., swimming pools, landscape garden, coffee shop etc., which they will not be able to make it.  He has lost more than Rs.60,000/- towards interest on the principal amount at the rate of 9.5% which OP did not pay him along with principal amount despite his repeated requests and e-mails and Rs.40,000/- spent on miscellaneous expenses towards personal visits, follow ups, telephone calls etc.  By this time the cost of the flat could have around 22- 25 lakhs, thereby he has incurred loss of Rs.7 to 10 lakhs in appreciation.  Due to this mental agony he has lost his career progress.  Hence, he prayed to allow the complaint against OP and grant relief as prayed in the complaint.

6. Let us have a cursory glance at the documents produced by the complainant.  Document No.1 is receipt dated 22.07.2012 issued by the OP to the complainant for having acknowledged a sum of Rs.2,75,000/-.  Document No.2 is also receipt dated 29.04.2012 issued by OP to the complainant for having acknowledged a sum of Rs.1,00,000/- towards flat No.206, 2^nd floor, flat North-East corner in the project Sanskriti, to the extent of 800 square feet.  Document No.3 is copy of MOU dated nil July 2012 entered into between OP and complainant.  Wherein it is mentioned that OP is a defaulter intends to develop the immovable property bearing No.1/A, Khatha No.136, measuring East to West 100 feet and North to South 50 feet situated in survey No.8/1, measuring 4000 square feet, survey No.1, measuring to an extent of 5000 square feet, totally measuring to an extent of 10400 square feet situated at Roopena Agrahara Village layout, Begur Hobli, Bangalore South Taluk.  As per clause-1 of MOU, OP is not liable to pay or incur any expenses in procuring the documents pertaining to the flat and the consideration agreed between the parties also includes service charges, brokerage and charges for procuring the documents.  It shall be the sole responsibility of OP-1 to procure all the documents of title, clearances, sanctions, permissions and NOC for sale in favour of second party.  Second party shall pay the sale consideration of Rs.15,00,000/- to the first party which is inclusive of car parking, BWSSB, BESCOM and other amenities, except registration and stamp duty.  Second party shall be liable to pay 25% of total sale consideration as first installment on or before 15^th day from the date of booking to the first party.  As per clause 6 (c) if either of the parties mutually cancelled the MOU they shall have no claims against each other and the MOU shall be held null and void, the amount paid by second party shall be refunded within the period of 60 working days from the date of cancellation without any deduction.  Document No.4 is the copy of letter of allotment dated 22.07.2012 issued by OP stating that allotment of flats at project DREAMZ SANSKRITI is ready along with the project plan and however it is confirmed that flat No.206 with one car parking has been allotted to the complainant.  Document No.5 is the project offer document dated 12.06.2013 issued by the OP to the complainant stating OP-1 offering amenities like indoor swimming pool with child safety lock, kitchen with height adjustable platform, Gymnasium, baby crèche, super market.  Document No.6 is the cancellation form stating that it was cancelled by builder reason is not known.  It was signed and acknowledged by OP on 19.12.2013 and original documents have returned to the OP.  Document No.7 & 8 are copies of account payee cheques dated 03.02.2014 & 07.02.2014 issued by OP in the name of complainant towards refund for a sum of Rs.2,00,000/- & Rs.1,75,000/- respectively.  Document No.9 is e-mails and correspondence made between the parties.  Document No.10 is copy of booking form issued by OP in the name of complainant.  Document No.11 is letter of cancellation sent by OP to the complainant dated 30.06.2013 cancelling the flat booked by the complainant calling upon the complainant to contact the office for refund of amount within 7 days failing which flat stands cancelled and OP shall forfeit the amount without any further intimation.  Document No.12 is copy of 2 BHK floor plan.  Document No.13 is brochure.  Document No.14 is booking form dated 29.04.2012.

7. On perusal of oral and documentary evidence of the complainant it is crystal clear that the complainant booked the flat by paying a sum of Rs.3,75,000/- to OP on 29.04.2012 and 22.07.2012 towards advance sital deposit as per Document No. 1 & 2, receipts issued by OP.  OP has failed to obtain conversion of land and layout approval.  OP demanded Rs.1,00,000/- for to enter the sale agreement.  Complainant requested that he can pay only after required approvals are obtained by OP, by applying for home loan in P.S.U. Bank.  Immediately OP cancelled his booking and booked the said flat to someone else for higher price and complainant did not receive any notice as claimed to have sent by OP.  Further, it is contended by the complainant that OP insisted the complainant to come over to his office for filling up of cancellation form.  Otherwise complainant won’t get refund.  Hence complainant forcefully filled the cancellation form on 19.12.2013.  OP returned only principle amount after 1½ years by way of postdated cheques dated 03.02.2014 and 07.02.2014 for a sum of Rs.2,75,000/- and Rs.1,00,000/-.  Inspite of repeated request and emails OP did not show any courtesy to pay interest or expenses.  Hence this complaint.

8. From the available materials on record, it is crystal clear that complainant has paid Rs.3,75,000/- towards advance sital deposit on 29.04.2012 and 22.07.2012.  OP has not produced any documents to show that they have obtained land conversion order and layout approval.  Hence, complainant denied to make further payment and sought for cancellation of the booking.  OP refunded the said amount of Rs.3,75,000/- to the complainant as per Document No.7 & 8, cheque dated 03.02.2014 and 07.02.2014 after nearly lapse of one and half years but not paid the interest amount.  If complainant had invested the said amount in any nationalized bank, it would have fetched him a fair amount of interest.  Non-payment of interest by OP amounts to deficiency on the part of OP.  We are satisfied that complainant proved deficiency in service against OP.  Under the circumstances OP is liable to pay interest at the rate of 18% per annum from the date of payment made i.e., 22.07.2012 till the date of refund i.e., 07.02.2014.  The act of OP in not paying the interest amount made the complainant to approach this Forum by incurring his precious time, energy and expenses.  Hence, OP is liable to pay compensation of Rs.10,000/- towards mental agony and deficiency in service along with litigation cost of Rs.3,000/- to the complainant.  Accordingly we proceed to pass the following:

                                  O R D E R

1. The complaint filed by complainant is allowed in part. 

2. OP is directed to pay interest at the rate of 18% per annum on a sum of Rs.3,75,000/- from 22.07.2012 i.e., the date of payment to till the date of refund i.e., 07.02.2014 along with compensation of Rs.10,000/- towards mental agony and deficiency in service.

3.  Further OP is directed to pay litigation cost of Rs.3,000/- to the complainant.   

4. This order shall be complied within 30 days from the date of receipt of this order.

5. Supply free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Forum by us on this the 27^th day of February 2016)

 MEMBER                       MEMBER                       PRESIDENT

NRS* 

CC.No.747/2014

Witnesses examined on behalf of the complainant dated 02.08.2014 1) Sri.Shyam Kumar Sinha

Witnesses examined on behalf of the OP – Absent

List of documents produced by the OP – Nil

MEMBER                           MEMBER                     PRESIDENT