Karnataka

Bangalore 4th Additional

CC/1824/2018

Smt Girija Prakash, - Complainant(s)

Versus

Golden Gate Properties Ltd., - Opp.Party(s)

03 Jan 2020

ORDER

Complaint Filed on:13.11.2018

Disposed On:03.01.2020

                                                                              

 

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

 

 

 

   03^rd DAY OF JANUARY 2020

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

Complaint  No.1824/2018

 

 

 

COMPLAINANT	Smt.Girija Prakash, W/o S.Shivaprakash, Aged about 45 years, R/at SHOBHA RUBY, Flat No.3144, 14th Floor, Nagasandra Post, Tumkur Road, Bangalore – 560 073.   Advocate – Sri.Raghavendra S.C         V/s
OPPOSITE PARty	GOLDEN GATE PROPERTIES LTD., Having its registered office at “GOLDEN HOUSE”, No.820, 80 Feet Road, 8th Block, Koramangala, Bangalore – 560 095.   Represented by its Managing Director   Advocate – Sri.Shivaprasad M.K

                                           

 

O R D E R

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

This complaint is filed by the complainant against the Opposite Party (herein after called as OP) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OP to refund the amount of Rs.3,00,000/- with interest @ 18% p.a, to pay Rs.30,000/- towards cost of the proceedings, to pay Rs.50,000/- towards the inconvenience and mental agony and to grant such other reliefs.

 

2.      The brief facts of complaint is as under:

 

Complainant submitted that OP is a real estate company engaged in selling immovable properties wherein they have launched a residential apartment complex called ‘Golden Panorama’ at Banashankari, Bangalore.  The complainant with an intention to buy a flat approached the OP.  OP has offered to sell a flat No.3115 in tower-3.  OP insisted for an advance amount of Rs.3,00,000/-.  The complainant has paid an advance amount of Rs.3,00,000/- by way of cheque No.424203 dated 21.12.2015 drawn on Vijaya Bank, Bangalore.

 

The complainant further submitted that the complainant has paid an advance amount of Rs.3,00,000/- subject to legal clearance and the same was acknowledged.  On detail verification of the document, few queries were raised and sought for certain documents for the purpose of legal opinion.  But OP has failed to comply the same despite of multiple reminder as such she did not proceed further and requested for refund of the amount of Rs.3,00,000/-.

 

Complainant further submitted that complainant has communicated many time and requested for refund of Rs.3,00,000/- over phone calls and e-mails.  The OP has failed to do so.  Hence complainant issued a notice on 14.03.2017 demanding for refund of the advance amount.  The OP has requested the complainant to allow some time for refund through e-mail dated 01.08.2017, 08.01.2018 & 16.01.2018 respectively.  But the OP has failed to meet the promise.  Hence complainant issued legal notice dated 05.10.2018 and the same was served through RPAD which has been duly served to the OP.  But the OP failed to refund the advance amount.  Hence the complainant approached the Forum for seeking reliefs.

3. In response to the notice issued, OP appeared through their advocate and filed their version in brief as under:

 

OP submitted that the complainant is not a consumer as defined U/s.2(1) (c) of the Consumer Protection Act, 1986.  Section.2 (C) defines only with respect to goods and services whose value does not exceed Rs.20 lakhs.  The complainant booked a flat of super built up area of 1785 at the rate of Rs.3800/-.  The basic cost is of Rs.67,83,000/-, well beyond the pecuniary jurisdiction of this Forum.  Hence on this ground alone the complaint is liable to be rejected.  OP submitted that the complainant voluntarily has paid the advance booking amount of Rs.3,00,000/- to OP.  OP has not insisted the complainant to pay the advance booking amount, it is voluntarily paid by the complainant to book the Apartment.

 

OP further submitted that the complainant has booked an apartment No.3115, 3 BHK, in Block No.3, Floor No.12, measuring Super Built up Area of 1785 sq. ft in the project known as ‘Golden Panorama’ situated at Sy. No.42 and 44 totally measuring of 5 acres of residentially converted land situated at Gubbalalu Village, Uttarahalli Hobli, Bangalore South Taluk.  The actual cost of the said Apartment is Rs.1,07,22,515/-.  However the complainant has negotiated with the OP for the best sale price, finally agreed for a total consideration of Rs.89,25,303/-.

OP further submitted that OP has ever ready to comply any clarifications but the complainant has not made her mind not to purchase the aforesaid apartment from the OP the reason is best known to her.  The complainant seems to be interest in making correspondence and speculation.  She is not seriously interested in purchase the Apartment.  The OP has taken the project approvals from many leading financial institutions viz., 1) S.B.I (2) LIC Housing Finance (3) ICICI Bank (4) Axis Bank (5) P.N.B (6) HDFC and these Banks have cleared and certified the project right, title and interest over and above the OP has never stepped back in compliance of the queries of the complainant.

 

Clause-10 of the application form reads here as under:

 

“In case cancellation is accepted for any special reasons, refund of amount paid shall be made after resale of apartment and collection of money from new purchaser, without any interest, after deducting the cancellation charges as per Agreement of Sale”.

 

OP further submitted that the complainant herself agreed under the booking application form that, only after the third party purchase of the Apartment, the OP is able to pay back the advance refund amount, under such terms the OP has replied in such way.  OP further submitted that the OP has not entered into agreement of sale with the complainant.  The complaint allegations do not amount to any deficiency in service.  It is not a dispute of civil nature wholly cognizable by the Civil Court and not Consumer Forum.  Therefore the complaint is not maintainable.  The rest of the allegations made by the complainant is denied by OP.  Hence OP prayed for dismissal of the complaint.

 

4. In the course of enquiry into the complaint, the complainant and the OP have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OP has submitted written arguments.  Complainant and OP have produced certain documents.  We have heard the arguments of complainant and OP and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

 

5. Based on the above materials, the following points arise for our consideration;  

 

1. Whether the complainant is a consumer under Sec.2 (1) (d) of the C.P Act 1986?

 

2. Whether the complainant has proved that there is deficiency in service on the part of the OP, if so, whether she is entitled for the relief sought for?

 

 

3.  What order?

 

6. Our findings on the above points are as under:

 

Point No.1 & 2:   Affirmative in part

Point No.3:          As per the order below

 

REASONS

 

 

7. Point No.1 & 2:  Admittedly complainant paid an advance amount of Rs.3,00,000/- to the OP to purchase a Flat No.3115 in tower-3 of OP project called ‘Golden Panorama’ on 21.12.2015.  The complainant alleged that the complainant paid an advance amount of Rs.3,00,000/- subject to legal clearance.  The complainant raised some few queries and sought for certain documents for the purpose of legal opinion but the OP has failed to comply the same despite of multiple reminders.  Hence complainant seeking for refund of amount of Rs.3,00,000/-, though they have accepted to refund the amount but till today OPs have not refunded the amount to the complainant.

 

8. On perusal of Ex-A3 & A4 letter sent by the OP to the complainant, which reads here as under respectively:

 

Dear Sir,

 

Greeting to you..

 

Sincere apologies for inconvenience caused.  I can personally imagine how important that 3 laks would be for you.  On the other hand in Real Estate due to RERA and GST implications we have temporary slump in the market, out cash flow structure is not allowing us to prioritize refund at this juncture, after long discussion with Managing Director we have decided to refund your booking amount in Dec 2017.  Kindly Cooperate with us for the same.

 

 

Dear Mr. Shiva Prasad,

 

Greeting to you..

 

Thank you for co-operating with us for the refund amount to be paid of your booking with us.  We had a slump due to demonetization early this year.  We are getting stable now from the situation.

 

Kindly forward us your banking details we will transfer the funds as soon as possible.

 

Waiting for your reply.

 

9. On perusal of the above two e-mails, it is clear that the OP has admitted to refund the booking amount of the complainant but till today the OP has not refunded the amount.  The OP has taken a contention in the version under the booking application form only after the third party purchase of the Apartment, the OP is able to pay back the advance refund amount without interest.  The OP has not produced any documentary to prove that the said apartment is vacant and not purchased by any third party.  Moreover the OP himself assured the complainant that they will refund the advance amount in the year 2017 itself, till today the OP has not refunded the advance amount.  Hence we find there is deficiency in service on the part of OP.  Further the complainant paid advance amount of Rs.3,00,000/- to purchase a flat from the OP project.  The OP has received the same.  Hence complainant is a consumer under sec.2 (1) (d) of the C.P Act.

 

10. On the above discussions made hitherto we direct the OP to refund the advance booking amount of Rs.3,00,000/- together with interest at the rate of 9% p.a from the date of actual payment till the date of realization along with the litigation cost of Rs.10,000/-.  Accordingly, we answer the point No.1 & 2 affirmative in part.

 

11. Point No.3: In the result, for the foregoing reasons, we proceed to pass the following order:          

 

 

 

                 

  O R D E R

 

 

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

 

2) OP is directed to refund the advance booking amount of Rs.3,00,000/- (Three Lakhs only) to the complainant together with interest at the rate of 9% p.a from the date of payment till the date of realization.

 

3) Further OP is directed to pay litigation cost of Rs.10,000/- to the complainant.

 

4) This order is to be complied by the OP 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, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 03^rd day of January 2020)

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

 

                         
             

 

                     

Witnesses examined on behalf of the complainant by way of affidavit:

 

Sri.S.Shiva Prakash, who being the husband of complainant.

 

 

 

Copies of documents produced on behalf of complainant:

 

1)	Copy of payment receipt issued by OP.
2)	Copy of Bank statement.
3)	Copies of e-mail sent by OP.
4)	Copy of legal notice.
5)	Copy of postal receipt.
6)	Copy of postal delivery status.
7)	Copies of authorities (3 in nos.)

 

Witnesses examined on behalf of the OP by way of affidavit:

 

Sri.N.Srinivas.

 

Documents produced on behalf of Opposite Party:

 

Ex-B1	Copy of project approval letter issued by SBI Bank.
Ex-B2	Copy of project approval letter issued by LIC housing finance.
Ex-B3	Copy of project approval letter issued by Axis Bank.
Ex-B4	Copy of project approval letter issued by ICICI Bank.
Ex-B5	Copy of project approval letter issued by P.N.B Housing Finance Bank.
Ex-B6	Copy of project approval letter issued by HDFC Ltd.
Ex-B7	Copy of booking application form dated 29.12.2015 signed by complainant.

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT