Date of Filing: 22.01.2009 Date of Order: 18.06.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 18TH DAY OF JUNE 2010<br /> PRESENT<br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 134 OF 2010<br /> <br /> Mohammad Fahim Aziz<br /> S/o. Abdul Aziz<br /> Residing at Flat No. 305, ‘B’ Block<br /> Prime Blue Forest, Rajapalya<br /> Hoodi, Bangalore 560 048 Complainant<br /> <br /> COMPLAINT NO: 135 OF 2010<br /> <br /> M.S.H. Majid<br /> S/o. Mohammad Sajid Ishack<br /> Residing at Flat No. 305, ‘B’ Block<br /> Prime Blue Forest, Rajapalya<br /> Hoodi, Bangalore 560 048 Complainant<br /> <br /> V/S<br /> <br /> Ittina Properties Pvt. Ltd.<br /> No. 1054, 3rd Block, 7th Main<br /> Koramangala, Bangalore 560 034<br /> Represented by its Director Opposite Party<br /> <br /> COMPLAINT NO: 520 OF 2010<br /> <br /> Naveen H Kosgi<br /> S/o. Hanmanth B. Kosgi<br /> R/at Flat No. 403, SIRI Enclave<br /> Beside Baby’s Desire Shop<br /> Green Glen Layout, Bellandur<br /> Off. Sarjapur Outer Ring Road<br /> Bangalore 560 103 Complainant<br /> V/S<br /> <br /> 1. M/s. Ittina Properties Pvt. Ltd.<br /> (Registered under the Companies Act 1954)<br /> No. 1054, 3rd Block, 7th Main Road<br /> Koramangala, Bangalore 560 034<br /> <br /> Also at : Ittina Centre<br /> No. 380, Opp. to CPWD Quarters<br /> 2nd Block, Koramangala<br /> Bangalore 560 034<br /> <br /> 2. Mona Ittina<br /> Executive Director<br /> M/s. Ittina Properties Pvt. Ltd.<br /> No. 380, Opp. to CPWD Quarters<br /> 2nd Block, Koramangala<br /> Bangalore 560 034<br /> <br /> 3. Manu Ittina<br /> Director<br /> M/s. Ittina Properties Pvt. Ltd.<br /> No. 380, Opp. to CPWD Quarters<br /> 2nd Block, Koramangala<br /> Bangalore 560 034 Opposite Parties<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> These three complaints are clubbed together for passing common order since the opposite parties in all the three cases are one and the same and these three cases can be conveniently disposed off by passing common order. <br /> The respective complaints are filed under section 12 of the Consumer Protection Act claiming refund of the booking amount paid to the opposite party for flat. The complainant in C.C. No. 134/2010 Mohammad Fahim Aziz has in all claimed Rs. 2,90,000/- to the opposite party. The complainant submitted that the opposite party failed to execute the sale deed in respect of flat. Complainant waited for sufficient time. He approached the opposite party who is not genuine and bonafide. Legal notice was issued to opposite party demanding refund of advance amount paid with interest. The complainant M.S.H. Majid in C.C. No. 135/2010 has paid in all Rs. 2,65,000/- to opposite party towards booking of flat. The complainant approached the opposite party for allotment of flat. But, have not taken any action for allotment of flat. Therefore, he has also got issued legal notice demanding refund of amount with interest. The complainant Naveen H. Kosgi in C.C. No. 520/2010 has paid in all Rs. 2,50,000/-. The opposite party never completed the project. Opposite party themselves had offered cancellation of booking. The complainant expressed willingness to cancel agreement and requested for refund of the advance amount with interest. Complainant got issued legal notice to opposite party demanding advance amount of Rs. 2,50,000/-. Notice is not complied with. Hence, the complainants have filed respective complaints for a direction to the opposite party to refund amount with interest and compensation.<br /> 2. The opposite party filed defence version admitting that respective complainants have paid the consideration amount and flats have been booked. The opposite party admitted in the version that complainant Mohammed Fahim Aziz has paid Rs. 2,90,000/- for a flat called Ittina Project. The opposite party also admitted that complainant MSH Majid has paid Rs. 2,65,000/- as booking amount of flat and complainant has signed the booking form by paying Rs. 2,65,000/- through cheque. Complainant had agreed to pay remaining amount at the time of entering into sale agreement with opposite party. Thereafter, the complainant never approached the opposite party and they never paid the remaining balance sale consideration amount. Opposite party is entitled for 30% deduction as agreed between parties. The opposite party has also admitted that complainant Naveen H. Kosgi has paid Rs. 2,50,000/- as booking amount of flat. Complainant has not paid next installment. The project was facing problems with BBMP and there was bound to be delay in executing the project. As per the contact between parties 30% is liable to be deducted while refunding advance amount. <br /> 3. There is absolutely no dispute as far as the advance amount received by the opposite party. Since, the complainants have prayed the relief of refund of advance amount under these circumstances filing of affidavit evidence by both parties is dispensed with. Both the counsels for the parties have also agreed that there are no dispute between parties. Therefore, filing of affidavit is not necessary. Therefore, in view of these submissions, arguments of both the parties have heard. Perused the complaint averments, defence version and documents filed by the complainants.<br /> 4. The points for consideration are:<br /> 1. Whether the complainants have proved deficiency of service on the part of opposite party?<br /> 2. Whether the respective complainants are entitled for refund of the amount paid by them with interest?<br /> 5. It is admitted case of the parties that the respective complainants have paid part consideration amount for booking of flat. It is also admitted fact that the opposite party being a developer of property had received booking amount from the respective complainants. The amount received as stated by the complainants has been clearly admitted by the opposite party in the version. There is absolutely no dispute between parties in respect of payments made by the complainants to the opposite party for booking flats. The opposite party submitted due to problem with BBMP and other legal hurdles the project cannot be completed. Therefore, the opposite party is not in a position to construct the flats and complete the project. So under these circumstances the complainants demanded refund of the booking amount. They have approached the opposite party personally and requested to refund the amount. But the opposite party did not respond to their request. Ultimately, complainants have got issued legal notice to the opposite party demanding refund of amount with interest. The opposite party never responded to legal notice also. Since, the opposite party failed to refund the amount paid by the complainants, the complainants are forced to file the complaints against opposite party seeking refund of the amount with interest. On the facts and circumstances of the case it is very clear that the opposite party has committed deficiency of service in not completing the project. Therefore, the opposite party is bound to refund amount received from the complainants with reasonable rate of interest. The opposite party having obtained the money and acknowledge same and utilised the money for their use, they are bound in law to pay interest on the refund amount. On the facts and circumstances of the case granting interest at 9% p.a. on the refund amount would be just, fair and reasonable. The question of granting compensation to the complainant does not arise at all in the nature of the present cases. The ends of justice will be met in ordering opposite party to refund the amount received from the respective complainants with 9% interest p.a. from the date of receipt of the amount. In the result I proceed to pass the following:<br /> ORDER<br /> 6. All the three complaints are allowed. The opposite party is directed to refund Rs. 2,90,000/- to the complainant Mr. Mohammed Fahim Aziz in complaint No. 134/2009.<br /> 7. The complainant MSH Majid in complaint No. 135/2009 is entitled for refund of Rs. 2,65,000/-.<br /> 8. The complainant Naveen H. Kosgi in complaint No. 520/2010 is entitled for refund of Rs. 2,50,000/-.<br /> 9. The respective complainants are entitled interest on the refund amount at 6% p.a. from the date of respective payments made by them to the opposite party till payment / realisation.<br /> 10. The respective complainants are entitled for Rs. 1,000/- each as cost of the present proceedings from the opposite party.<br /> 11. Keep the copy of the order in connected case file. <br /> 12. Send the copy of this Order to both the parties free of costs immediately. <br /> 13. Pronounced in the Open Forum on this 18TH DAY OF JUNE 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br />