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

DATED 29^TH DAY OF NOVEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. This  complaint has been filed under section 12 of C.P.Act, 1986 for the  following reliefs

1. Direct the OP to refund entire amount of Rs.13,40,000/- along with 18% interest per annum from the date of making payments till realization.
2. Direct the OP to pay the complainant Rs.50,000/- towards compensation for deficiency of service.
3. Direct the OP to pay compensation of Rs.50,000/- to the complainant towards shock, mental and physical suffering and loss of time due to the deficiency of service on the part of the OP.
4. Grant  such other reliefs deemed fit and proper under the circumstances of the case in the interest of justice and equity.

2. The case of the complainant is that:

The complainant booked 3 BHK flat  measuring 1400 sq. ft.  in the  proposed project called Gruha Kalyana Archid-II. The OP offered to sell the said flat for a total consideration of Rs.24,00,000/- and the complainant paid sum of Rs.13,40,000/-  and both have entered into Memorandum of Understanding dt.20.08.2016. The complainant with a fond hope that OP and her staff will start the project  and complete the same within a stipulated period. When the OP did not start the project and the complainant started enquiring  about delay in starting the project. The OP and her staff were postponing the same  by giving one and another reason and did not start the project till date. On the request and instructions of OP, the complainant filed cancellation and returned all the original documents  to the OP on the assurance given by the OP that they will return the advance amount received along with interest.

It is further case of the complainant that he again approached OP and all efforts went in vain finally when the OP not available in the office at HSR layout and other branches all over the Bengaluru and have not refunded the advance amount, which is clear indication  of the OP that they have played calculated fraud on the complainant by creating the documents, forged the documents and committed criminal breach of trust and finally cheated the complainant. It is clear from the inception OP had no intention to start the project and OP involved in unfair trade practice and clear deficiency of service on offered by the OP.

It is further grievance of the  complainant that he approached the jurisdictional Madivala Police station, where the office of OP is situated and he has given complaint to the Police authorities and they have given assurance that they would get back the money from the OP. The complainant also signed and lodged complaint along with other investors. The Madivala Police  Station have registered a case in Crime No.82/2017  for the office punishable under section 420, 120(B) IPC  and now the investigation is taken up by the COD police, Karnataka state.

It is further grievance of the complainant that he was harassed mentally, physically and financially due to bad and deficient service of the OP.  At last, the complainant got issued legal notice on 03.11.2018 calling upon the OP to refund the amount within 07 days. The said notice was returned unserved with an endorsement addressee left. Inspite of sending legal notice the OP has not returned money. Hence, the complainant filed this complaint.

3. After filing of the complaint, notice was issued to the OPs, remained absent even after notice was taken by the complainant  through  paper publication  in “Hosa Digantha” news paper.

4. The complainant in order to prove the contentions has filed affidavit evidence and relied on documents i.e. Exhibits P1 to P5.

5. Complainant’s counsel has not filed written arguments.  We have heard the arguments submitted by the complainant’s counsel.

6. The following points arise for our consideration:-

1. Whether the complainant has proved the  deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs claimed in the complaint ?
3. What order?

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

       Point No.1:- Affirmative

      Point no.2:- Affirmative in part

      Point No.3:-As per the final order.

REASONS

8. Point No.1 and 2: These two points are inter related and  hence they have taken for common discussion.  We have perused the allegations made in the complaint and affidavit evidence of the complaint and documents P1 to P5. Inspite of issue of notice through paper publication, the OP remained absent. OP neither challenged the allegations made in the complaint and also evidence and they remained unchallenged.

9. It is clear from the evidence and allegations made in the complaint and documents that the OP is a company registered under the Companies Act. On the basis of the advertisement given by them, the complainant has booked 3BHK flat measuring 1400 sq.ft. in the proposed project named Gruha Kalyana Archid-II. The complainant agreed to purchase the said flat for a total consideration of Rs.24,00,000/- and he has paid Rs.13,40,000/-  and entered into MOU on 20.08.2016 with the OPs.

10. Even though OP has agreed to complete the project has not at all started the project and they have simply postponing the project by one or the other reason. After that the complainant  has cancelled the MOU and also requested the OP for refund of the advance amount received along with interest within a period of one month. After enquiry the complainant came to know that OP have closed their offices  and also not available. After that he lodged complaint before the Madivala Police station in Crime No.82/2017 for the offences punishable under section 420, 120(B) of IPC against the OP and staff, now the investigation is taken up by the COD Police, Karnataka. After that the complainant has issued legal notice dt.03.11.2018 calling upon the OP to refund the amount within 07 days, but said notice was returned with an endorsement that addressee left.

11. In support of the contentions of the complainant, he has produced copy of the booking form Ex.P1, copy of MOU Ex.P2, copy of complaint Ex.P3, copy of legal notice Ex.P4 and Ex.P5 the postal receipt for having sent notice to the OP.

12. Even thought, the complainant has paid substantial amount of Rs.13,40,000/- out of Rs.24,00,000/-, the OP have neither started the project nor handed over the possession of the 3BHK flat in favour of the complainant as agreed in the Ex.P2. The payment made by the complainant is not at all disputed by the OP. The OP has not at all developed the proposed project after receiving the amount within a agreed period and there by committed deficiency of service and untrade practice. As per assurances given by the OP and on the basis of the advertisement given by the OP, the complainant has entered into MOU with the OP and also paid part of the sale consideration in the year 2016 itself. The OP has neither refunded money nor handed over the flat. There is no evidence or documents placed before this Commission that the OP have completed the project or they have handed over the possession of the apartment booked by the complainant. The conduct of the OP clearly discloses that the only intention of the OP is to grab the money from the prospective buyers and utilize the amount for their own purposes. The OP have  no intention to develop the project and handed over the flat to the prospective buyers even after collecting substantial amount from them.  In view of this the complainant suffered mental, physical and financial harassment. Under these circumstance, the complainant clearly established the deficiency of service on the part of the OP. Therefore, the complainant is entitled for the relief and the complaint is liable to be allowed in part. Hence, we answer the Poin-1 in the affirmative and Point No.2 partly in the affirmative.

13. Point no.3:-.  The complainant is entitled for entire amount of Rs.13,40,000/- paid to the OP as advance along with interest  at the rate of 10% per annum from the date of filing of the complaint till realization, failing which the amount will carry additional interest at 12% per annum. The complainant is also entitled  for compensation of Rs.50,000/- towards deficiency of service and he further entitled for compensation of Rs.50,000/- towards shock, mental, physical suffering and for  loss of time due to deficiency of service on the part of the OP. The complainant is also entitled for litigation expenses of Rs.10,000/- from the OP. The OP has directed to pay entire amount in favour of the complainant within 60 days from the date of this order.  Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund entire amount of Rs.13,40,000/- with interest at the rate of 10% p.a. from the date of complaint till realization.
3. The OP further directed to pay compensation of Rs.1,00,000/- towards shock, mental suffering and deficiency of service.
4. The OP further directed to pay Rs.10,000/- towards litigation expenses.
5. If the OP failed to pay the amount within 60 days, the amount of  Rs.13,40,000/- will carry additional interest at 12% p.a. after expiry of 60 days .
6. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^th  day of November, 2022)

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

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