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

DATED 25^TH DAY OF JULY 2022

ORDER

KUM. RENUKADEVI DESHPANDE, MEMBER

1. This complaint has been filed under section 35 of C.P.Act 2019 (herein after referred as “Act”)  against the OPs for the following reliefs.

1. To direct the opposite parties to jointly and severally pay to the complainant Rs.4,46,000/- with interest at 20% p.a., from 17.09.2016 till payment.
2. To direct the OPs to jointly and severally pay to the complainant compensation of Rs.4,00,000/- for deficiency of service, unfair trade practice, mental agony, pain, suffering and hardship undergone by the complainant.
3. To direct the opposite parties to pay cost and grant such other reliefs as this Hon’ble Forum deems fit in the interest of justice.

2.The brief facts of the complaint is as follows:

The complainant approached the OP in August 2016 for purchase of a flat.  The OP have engaged in construction of residential flats in Bangalore at discounted price and construction of resplendent and affordable homes with a host of amenities as stated in the OPs pamphlet and booklet.  Considering the above, complainant booked two BHK flat measuring 1150 sq feet., in their project “GK GLADIOLUS” on 17.09.2016 for a total sum of Rs.15,00,000/-.  OP agreed to handover possession of a flat to the complainant within 20 months from 17.09.2016.  The complainant has paid a sum of Rs.4,46,000/- to the OP towards part payment of the sale consideration.  However OP did not start construction in the said project.  The complainant after waiting till December 2018, called upon the OP to refund the amount of Rs.4,46,000/- paid by him.  The OP agreed to refund the amount.  Inspite of repeated requests, reminders and demands, the OP failed to pay the amount of Rs.4,46,000/- to the complainant.  Hence the complainant got issued legal notice dated 14.01.2019 to the OP through RPAD, but the notice was returned unserved.  Hence this complaint.

3. After registration of the complaint, notice was issued to OP, hence paper publication was taken in kannada daily newspaper Hosa Diganta, which was daily published.  OP called out absent. Hence placed exparte.
4. The complainant has filed his affidavit evidence in support of her case and that marked as Ex.P1 to P13.
5. Perused the records.
6. The points that would arise for our consideration as under:-

1. Whether the complainant proves deficiency of service on the part of the OP as alleged in the complaint?
2. What  relief or order?

7. Our answer to the above points are as under:

       Point No.1:- Affirmative in part.

      Point No.2:-As per the final order.

REASONS

8.  Point No.1:    The sworn testimony of the complaint has remained unchallenged, OP neither filed appeared nor denied the sworn testimony of the complainant.  So under such circumstances, we have no reason to disbelieve the sworn testimony of the complainant.  We have perused the documents and receipts produced by the complainant.  The sworn testimony of the complainant coupled with documents establishes that OP having received Rs.4,46,000/- failed to deliver the possession of the flat.  This conduct of the OP in not constructing the flat in the said project, amounts to deficiency of service and unfair trade practice.  Complainant has suffered financial loss and mental agony.

9.     The allegations made in the complaint sworn testimony of the complainant and coupled with a receipts go to establish that complainant was intended to purchase of a flat from OP and paid Rs.4,46,000/- out of the total consideration of Rs.15,00,000/-.  OP issued 09 receipts dated 17.09.2016, 17.09.2016, 17.09.2016, 27.09.2016, 05.10.2016, 06.10.2016, 07.10.2016, 14.10.2016 which is marked as Ex.P1 to P8, but OP failed to start the construction of the flat in the said project.  Hence complainant got issued legal notice to the OP on 14.01.2019, which is marked as Ex.P9 and OP also failed to reply to the legal notice of the complainant.

10.    The very fact of OP is not contesting the proceedings leads us to draw an inference that OP admit the claims of the complainant.  There is no reason to disbelieve the unchallenged affidavit evidence of the complainant and documents.  The complainant suffered inconvenience and mental agony, due to non-performance of promise made by the OP.  Complainant has successfully proved that OP have received the amount of Rs.4,46,000/-, failed to start construction work and to hand over the possession of the flat within 20 months from 17.09.2016.  The said conduct of OP amounts to deficiency in service and unfair trade practice.  This conduct of the OP put the complainant to hardship, inconvenience and mental agony.  Therefore OP is liable to pay Rs.4,46,000/- with interest at 9% p.a., from the date of respective payment till realization and also litigation cost of Rs.3,000/- to the complainant.  Accordingly we answer point NO.1 partly in affirmative.

11.    Point No.2: In the result, 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.4,46,000/- along with interest at 9% p.a., from the date of respective payment till realization and litigation cost of Rs.3,000/- to the complainant. 
3. The OP shall comply this order within 60 days from the date of this order.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 25^{th day} of July, 2022)

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

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