Complaint filed on:04-06-2024
Disposed on:30-11-2024
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 30th DAY OF NOVEMBER 2024
//PRESENT//
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER
Consumer Complaint.No.74/2024
Sri.M.Y.Mahalingaiah S/o late Yenjappa,
Residing at Byraveshwara Nilaya,
1st B Cross, Maruthinagara,
Tumakuru.
……….Complainant
(By Smt.Poornima.S, Advocate)
V/s
Max Worth Realty India Limited,
By its Chief Executive Officer,
Kesava K. KMP House, No.12/2,
Yamuna Bai Road,
Madhava Nagara,
Bengaluru-560 001
…….Opposite Party
(absent)
//:ORDER://
SMT.G.T.VIJAYALAKSHMI - PRESIDENT
This complaint is filed by the complainant under section 35 of Consumer Protection Act, 2019 against the opposite party with a prayer, to direct the OP to repay the amount of Rs.1,00,000/- paid to the OP towards booking amount of plot No.254 in Max Orchard III with interest @ the rate of 18% p.a from 11.06.2014 till it realization and award a sum of Rs.5,00,000/- as damages and Rs.1,00,000/- towards mental agony and harassment, in the interest of justice and equity.
2. The brief facts of the complaint is as under:-
The complainant booked plot No.254 measuring 30X40 feet east facing in the project claimed as “Max Orchard III” at the agreed rate of Rs.600/- per sq feet. The total measurement of the plot booked by the complainant is 1200 sq feet with the total value of the plot booked is at Rs.7,20,000/-.
The complainant has paid an advance amount of Rs.1,00,000/- by way of crossed cheque bearing No.987508 dated 11.06.2014 in favour of the opposite party and the said cheque has been encashed by the opposite party in the month of June 2014 itself. Despite of repeated requests and when ever approached opposite party has giving evasive replies and it appears that the said project is not at all launched as claimed and promised by the opposite party despite of passing of more than 9 years period.
Infact, opposite party had promised that the project Max Orchard III will be developed and physical possession along with the sale deed will be executed within a period of 3 years from the date of booking on 11.06.2014 and until recently when approached personally during December 2023 the opposite party has falsely promised that the plot will be handed over soon or else the booking amount will be returned during 1st week of January 2024 with interest again when the complainant approached the opposite party during 1st week of January 2024 the opposite party did not execute the sale deed nor returned the booking amount of Rs.1,00,000/- with interest.
Hence, the complainant issued a legal notice to the opposite party through his advocate calling upon the opposite party to repay the booking amount of Rs.1,00,000/- paid the alleged plot No.254 in Max Orchard III through cheque which is enchased by the opposite party in June 2014 itself, insisting for reimbursement of the booking amount of Rs.1,00,000/- along with interest @ the rate of 18% p.a from the date of booking i.e., 11.06.2014 to till date. Hence, this complaint.
3. After service of notice from this Commission, the OP has not appeared before this Commission and remained absent.
4. The complainant has filed his affidavit evidence with documents which are marked at Ex.C1 to C8.
5. We have heard the arguments of complainant counsel. On perusal of copy of complaint, affidavit and documents filed by the complainant, the points that would arise for determination as follows;
1) Whether there is any deficiency in service on the part of OP?
2) Whether the complainant is entitled for reliefs sought for?
6. Our findings to the aforesaid points are as under:
Point No.1: In the affirmative
Point No.2: As per the final order
//:R E A S O N S://
7. Point Nos.(1) & (2):- The complainant filed an application to condone the delay in filing this complaint perused the application, with affidavit and other documents filed by the complainant with complaint. The complainant paid Rs.1,00,000/- on 11.06.2014 and repeatedly request the OP to complete the construction and handed over the possession of the apartment by receiving the balance amount. However, the OP failed to handed over the apartment and execute the sale deed. The repeated requests also considered as continuous cause of action and question of delay does not arise.
8. To prove the case, the complainant submitted Ex.C1 to C8. Ex.C1 is the booking form dated 11.06.2014 and signed by complainant and executions of OP. The Ex.C2 is the receipt dated 11.06.2014 issued by the OP. Ex.C3 is the copy of the cheque No.644327 dated 11.06.2014 for Rs.1,00,000/-. Ex.C4 and 5 is the copy of the passbooks and pass book entries. Ex.C6 is the legal notice issued by the complainant to the OP dated 16.01.2024. Ex.C7 is the postal acknowledgments and C8 is the ‘BIAAPA’ approved single residential site plan dated 16.10.2011.
9. From the above exhibits / records, it is evident that, the complainant booked plot No.254 measuring 30 X 40 feet in the project claimed as ‘Max Orchard III’ @ the agreed rate of Rs.600/- per sq feet and total consideration for the plot is Rs.7,20,000/-. The complainant paid Rs.1,00,000/- as advance by way of cheque and the OP encashed and acknowledge the same as per Ex.C3 and 2. The Ex.C4 also indicates the same. The repeated request and demands made by the complainant neither to complete the apartment construction nor refund the amounts went in vain. For no fault of the complainant, they were made to suffer both mental agony and financial loss. Being fed up with the hostile attitude of the OP, the complainant issued legal notice, requesting for refund of the amount. However, there was no reply from the Op. In spite of receiving the notice from this commission, the OP failed to appear before this commission. Hence, the evidence submitted by the complainant is unchallenged. Thus, it becomes clear that, inspite of receipt of the amount towards plot No.254 from the complainant, the OP neither shown any progress in construction of plot / apartment. Therefore, the act of OP neither construction of plot and execution of absolute sale deed nor refund of the amount, amounts to deficiency in service. Hence, the OP is liable to refund the booking amount of Rs.1,00,000/- received from the complainant with interest @ 9% p.a from the date of payment i.e., 11.06.2014 to till realization.
For the act of the OP, the complainant is compelled to approach this commission. Hence, the OP is liable to Rs.10,000/- as compensation for mental agony and Rs.6,000/- as legal expenses. Accordingly, we pass the following:-
//:ORDER://
The complaint is allowed in part.
The OP is directed to pay Rs.1,00,000/- with interest @ the rate of 9% p.a to the complainant from the date of payment i.e., 11.06.2014 to till realization.
The OP is further directed to pay Rs.10,000/- as compensation and Rs.6,000/- as litigation expenses.
Further, the OP is directed to comply the above order within 45 days, from the date of Receipt/knowledge of the order.
