O R D E R

SRI.S.L.PATIL, PRESIDENT

1. This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 praying for an order against Opposite Party (herein after referred as OP) to direct the OP to refund Rs.5,00,000/- by adding 24% interest p.a. from 27.07.2015 till realization of the amount, to award compensation of Rs.75,000/- by directing the OP to compensate the complainant for deficiency in service which has caused loss, damage, mental agony, inconvenience, to pay a sum of Rs.5,000/- towards expenses for legal notice, to pay Rs.40,000/- as cost of legal expenditure and to grant such other reliefs under the circumstance of the case in the interest of justice and equity.
2.  The brief averments made in the complaint are as follows:

The complainant submits that he was interested in purchasing a residential flat constructed by OP and has booked 3 BHK flat/apartment No.2104, Tower II measuring with super built up area of 1725 sq.ft. on the 10^th Floor at the price of Rs.4175 per sq.ft in project named “Golden Panorama” along with one car parking which was being constructed in converted land Sy.No.42 measuring 1 Acre 4 guntas and land in Sy.No.44 measuring 3 Acres 30 guntas totally measuring 5 Acres situated at Gubbalalu Village, Uttarahalli Hobli, Bengaluru South Taluk.

It is further submits that the total sale consideration for the said apartment was Rs.92,79,365/- and as per terms of booking by paying amount of Rs.5,00,000/- through cheque No.723201 dated 27.07.2015 drawn on Axis Bank, Bengaluru.  In this regard, OP issued a receipt No.713 dated 27.07.2015 to complainant and acknowledged the receipt of Rs.5,00,000/- as booking amount. 

Further complainant stated that OP has sent a payment demand note dated 01.08.2015 for paying instalment due and when complainant requested to send the draft of agreement of sale, OP has not sent the same.  Repeatedly complainant asked the OP to send the draft agreement of sale, the OP has sent a blank draft of agreement of sale without mentioning any details like, name of parties, consideration amount with respect to the apartment.  Then complainant further requested to OP to fill the blank spaces to know exact charges to be paid and payment schedule, but OP has not sent any reply. 

It is further submitted by the complainant that being the situation, suddenly complainanat received an E-mail dated 02.10.2015 stating that the unit which complainant had booked was not available as it was earlier sold to an investor and now he wanted to retain it, as such, OP asked complainant to swap his unit to 1785 sq.ft. on the 11^th Floor in Town II, Unit No.21156.  It should be noted that, this is gross negligence on OP.  It is further submits that complainant informed OP that he wanted to cancel the booking of the above said flat and requested to refund the booking amount.  All of a sudden again OP informed that it would provide the same flat which was booked by complainant and OP has sent a blank draft of agreement of sale without mentioning any details.  Complainant further requested to OP to fill the blank spaces, but OP has not sent any reply.  Finally, complainant had received an E-mail on 30.10.2015 regarding refund of amount and OP had stated that within 30-45 days process would complete, but to the utter shock of complainant it never happened.  Further after several mails and personal visits to OP’s office and site, again OP sent an E-mail on 19.03.2016 stating that OP has already started the process for refund of booking amount.

It is further submits that instead of Rs.3,00,000/- the OP has collected booking amount of Rs.5,00,000/- by cheating the complainant.  It is further submits that again on 05.01.2017 he received an E-mail by OP that booking amount would be issued post April, 2017 due to current situation in the real estate industry and due to demonetization and GST.  Further complainant had co-operated all along with OP and borne the pain for no mistake of his.  Further OP is put to strict proof that on what basis OP has not refunded the booking amount.

It is further submits that even after April, 2017 when complainant did not receive the booking amount once again  requested for refund of money and this time on 07.07.2017 Ms.Thanuja, CRM, Customer Care, sent an E-mail and promised that booking amount of Rs.5,00,000/- would be refunded along with 12% p.a. and once again OP made the same promise on 12.02.2019 that they would return the booking amount by April, 2019 after discussing with Mr.Sukhjeet (CRM Head).  But till date, complainant has not received any response from OP. 

Later also the scenario remained the same as OP gave so many assurances that OP will solve the issue within short span of time and they would give the money back.  Further it is very sad that OP was not bothered to attend complainant’s queries.  The complainant further submits that OP made all false assurances and none of the promises were fulfilled.  When complainant tried to contact OP in this regard, OP is avoiding complainant’s calls and not responding to his                      E-mails as well.  Further this action of OP is clear violation of Consumer Protect Act and Section 406 and 420 of Indian Penel Code and the same is actionable.

The complainant made several communications to the OP and also sent a legal notice dated 06.12.2019 and the same was received by OP.  It is submitted that the OP failed to render the services as promised to the complainant. This act on the part of OP thus amounts to deficiency in service and unfair trade practice. 

The cause of action arose on 27.07.2015 when the complainant booked the apartment and made the payment and on 06.12.2019 when the complainant sent the legal notice and continues even to this day.

3. On receipt of the notice, OP did appear and filed vakalath through its advocate and prays to file verison.  But not filed any verison. 

4. Complainant has filed affidavit evidence and also produced documents marked as Ex.A.1 to A.9.  Heard the learned counsels for both sides.

        4. The points that arises for our consideration are:

  5. Our answer to the above points:

REASONS

7. Point No.1: In this case, as we have stated above OP did appear but not filed any version.  Under such circumstances, 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 contents of the complaint filed by the complainant with reference to the documents produced by him.  As the booking of the said apartment was not materialized.  Hence, the complainant sought for the refund of the amount for the reasons stated in para 6 of the complaint.  In response of the repayment of the said amount so far paid by the complainant, the response of the OP is very important.  In this context to place the reliance on the contents of the Ex.A.2 (Annexure-B) in page 12 reads thus:-

Dear Dr.Vivek Sri, Good Morning Sir hope you and your family are all fine and in a good health I am Extremely sorry to inform you that the Unit 2104 which you had booked is not available as it was earlier sold to an investor and now he wants to retain it.  It was on the assurance of Mr.Sandeep Reddy (GM) that I had proposed you this particular apartment and now he is not in a situation to abide and adhere on his words.  As a company’s responsible Representative and as a Sales Representative firstly I want to apologize and regret for the confusion that has happened and taking the complete responsibility with the assistance of my CRM team I would request you to swap your Unit to 17855 Sq.ft. on the 11^th Floor in the same Tower (Tower 2) at the same cost, Unit No.(2115).  It is my humble request to you and your family to revisit the site and check the Unit.  My sincere Apology Awaiting you kind response.

Warm regards,

Rajiv Galkwad

      Further we place the reliance on the contents of the Ex.A.4 (Annexure-B) in page 13 reads thus:-

Dear Mr.Vivek, Greatings from Golden Gate Properties, we regret to inform you that your refund of your booking amount of Rs.5,00,000/- will be issued only post April, 17 due to the current situation in the Real estate industry and the demonstration which has really impacted us and so currently GGPL has prioritized its funds towards the construction and progress of Golden Penorama.

      Further we place the reliance on the contents of the Ex.A.5 (Annexure-B) in page 14 reads thus:-

As per the cancellation policy, your booking amount will be refunded in a time frame of 90 days from the receipt of your request for cancellation.  However, our finance team has assured to refund your booking amount of Rs.5,00,000/- towards your flat No.2104 along with an interest applicable at 12% per annum.  We are extremely apologetic for the inconvenience caused in this regard.  We once again request you to bear with this delay while allowing all the required work at out end to materialize. 

Regards,

Thanuja.

        9. If the above E-mail texts are strictly construed which we duly sent by the OP, it is evident that as per the cancellation policy, the booking amount will be refunded in a time frame of 90 days from the date of request letter for cancellaton.  However, the OP has assured to refund the booking amount of Rs.5,00,000/- towards said flat No.2104 along with interest applicable at 12%  p.a.  These facts are admitted facts hence, need not be proved under Section 58 of the Evidence Act.

          10. With regard to the claim of the complainant is concerned, the option is left open to the complainant as per the decision 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.

11. In the light of the decision cited supra, we come to the conclusion that since the complainant has sought for refund of the advance amount of Rs.5,00,000/- with admissible interest.  Hence, this Commission has no other go except to consider the claim of the complainant for refund of Rs.5,00,000/- with interest at the rate of 12% p.a. from the date of periodical payment.  Accordingly, we direct the OP  for the refund of Rs.5,00,000/- with interest at the rate of 12% p.a. from the date of periodical payment with litigation cost of Rs.5,000/-.  Accordingly, we answer the point No.1 in the affirmative. 

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

ORDER

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act, 1986 is allowed. 
2. The OP is directed to refund an amount of Rs.5,00,000/- with agreed rate of interest at 12% p.a. from the date of payment till realizaiton with cost of Rs.5,000/- to the complainant.
3. This order to be complied by OP within six weeks 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 Forum on this 9^th day of November, 2020).

List of documents produced by the complainant marked as Ex.A.1 to A.9 are as follows:-