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

DATED 29^TH DAY OF FEBRUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP  to direct the OPs to refund Rs.3,07,000/- with interest and damages as per last notice dated 26.05.2023 with cost of this proceedings.
2. The case set up by the complainant in brief is as under:-

It is the case of the complainant that he had booked a site No.255 measuring 1200 sq. feet in the project called as “MAX ORCHIDS” Phase III, situated at Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk, Bengaluru Rural District, developed by the OP and paid a sum of Rs.2,07,000/- through cheques out of the sale consideration of Rs.6,90,000/- as on the date of agreement 15.10.2014 with an intention to own a residential site around Bangalore. The provisional site No.255 was allotted to the complainant. The OPs have agreed to complete the transaction within 18 months from the date of agreement. Again as per the demand of the OP the complainant has paid another amount of Rs.1,00,000/- through cheque on 09.12.2017.  Thereafter there is no progress in the developmental works. The OPs have failed to perform their part of the contract and obligation without any justifiable reason.

3. The complainant enquired with the local persons at the spot and he came to know that the OPs have not formed internal roads laying of power poles or any developmental works in the proposed layout. The complainant visiting the office of the OPs on several times, but the marketing manager was not available for any communication and the office bearers used to direct the complainant to contact the director who is not available for any sort of communication.  The complainant felt that there was some foul play about the formation of layout itself.
4. After that the complainant got issued notice in August 2022 and called the OPs to execute the sale deed by receiving the balance sale consideration or to refund the amount with 18% interest. Again the complainant got issued legal notice on 27.07.2022 and inspite of received the notice the OP did not choose to reply. The complainant came to know that the layout plan was not at all approved from the concerned authorities. The OPs have willfully failed to complete the transaction and not deliver possession as per the contract period which amounts to deficiency of service. The OPs received amounts from the complainant and other innocent purchasers and misused the funds by deceiving their interest. The OP without denying or executing the register conveyance keep on postponing to act as per the terms of the agreement by receiving the amount from the general public. Hence the complainant has filed this complaint.
5. In response to the notice, OP1 appeared but failed to file version within the prescribed time. Though notice was sent to the OP2, he has not appeared before this Commission. Hence OP2 placed exparte.
6. The complainant has filed his affidavit evidence and relies on 13 documents. 
7. Heard the arguments of advocate for the complainant only.  Perused the documents.

8. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

9. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

10. 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, affidavit evidence of documents of the complainant. Though OP1 has appeared has not filed their version. Hence OPs neither challenged the allegations made in the complaint and also documents and they remained unchallenged.
11. The complainant agreed to purchase the site No.255 offered by the OP in the layout called as MAX ORCHIDS Phase III and entered into sale agreement and has paid an advance amount of Rs.2,07,000/-.  The complainant after verification of the brochures issued by the OPs accepted the offer and entered into sale agreement as Ex.P1 on 15.10.2014 and paid the amount of Rs.2,07,000/- as per Ex.P2 and P3.  The site No.255 measuring 30X40 feet was booked as per Ex.P4 and the total cost of the site was Rs.6,09,000/- and the booking amount of Rs.2,07,000/- was paid by the complainant through cheque as per Ex.P5.  As per the demand the complainant has paid another amount of Rs.1,00,000/- on 09.12.2017 as per Ex.P6.
12. As per the agreement the OP has to complete the project and hand over the site within 18 months from the date of execution of agreement. When the OP has failed to register the sale deed the complainant has gone to the spot and came to know that the there was no progress in the development works.  The layout plans supplied by the complainant was not yet approved from the authorities and the OP has failed to supply the documents to the complainant for legal scrutiny.  After that the complainant came to know that the OP have not at all formed the layout by providing internal roads laying power poles in the said layout.  After that he got issued legal notice as per Ex.P9, P12 and P13.  Inspite of service of the notice the OP has neither sent any reply nor complied the demands of the complainant.
13. It is clear from the evidence and documents that even though the OPs have received the advance amount of Rs.2,07,000/- 15.10.2014 and also Rs.1,00,000/- on 09.12.2017 itself the OP neither formed the layout nor allotted any site that to site No.255 provisionally allotted in favour of the complainant or refund the amount to the complainant. The very layout plan of the OP was not at all approved by the competent authority and other formalities are also not complied by the OPs. The conduct of the OP clearly discloses that they have merely collected amount from the complainant and other innocent purchasers by giving false assurance that they are going to form the layout and they will allot the site within 18 months. The OPs neither formed any layout nor refund the advance amount even after lapse of more than seven to eight years.  The very conduct of the OP in not forming the layout and not returning the amounts even after lapse of seven to eight years clearly discloses that there is a deficiency of service on the part of the OP and the OPs are practicing unfair trade practice and they are cheating the public by giving false assurances to the innocent public. Hence the complainant has clearly established the deficiency of service and fraud played on the part of the OP.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

14. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OPs are hereby directed to refund of Rs.3,07,000/- with interest at 12% p.a., from the date respective payment till the date of realization.
3. OPs are further directed to pay compensation of Rs.50,000/- with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 14% p.a. after expiry of 60 days on Rs.3,07,000/- till final payment.
5. Furnish the copy of this order and return the extra 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 FEBRUARY 2024)

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

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

NIL