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

DATED 22^ND DAY OF JANUARY 2016

O R D E R

SRI.P.V.SINGRI, PRESIDENT

One Mr.Bhaktavatsalam.P S/o.Kamesawara Rao.P, (herein after referred as complainant) resident of Bellandur was looking for a residential site and during his search for residential site he came across Maxworth Realty India Ltd., Bangalore  as well as his Chairman and Managing Director Mr.Keshav.K (herein referred as OP 1 & 2) who are engaged in property developers and were plan of developing a residential layout in the namely Max Residency within a limits of Thindlu Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District.  The complainant after having come to know about the scheme undertaken by the OPs decided to purchase two sites bearing No.138 & 136 in the above mentioned residential layout.  Accordingly, the complainant booked site No.128 situated in Sy No.190/1/2, and site No.136 which is situated in Sy. No.193.  The complainant having decided to purchase the above mentioned sites sought legal opinion by paying legal charges of Rs.20,000/- and during the said process he was informed that Sy. No.190/1/2 in which site No.128 is situated has been mortgaged to PLD Bank and the OP is not authorised to deal with the said land.  When the complainant brought the same to the notice of the OPs, the OPs informed him to pay 30% of the sale consideration in respect of the site No.128 only, after redemption of mortgage of the said property by them.  Upon getting the legal clearance for site No.136 the complainant proceeded to purchase site No.136 for valid consideration of Rs.9,60,000/-.  The complainant accordingly paid a sum of Rs.2,88,000/- being the 30% of sale consideration on 01.02.2014 by way of cheque drawn on SBI, Bangalore.  The OPs acknowledged the receipt of the said amount and issued a receipt dated 01.02.2014.  At the time of receiving the said amount, the authorised representative of OPs assured the complainant that the sale agreement will be executed within two days from the receipt of payment.  After two days when the complainant called upon the OPs to execute the agreement of sale, the OPs went on giving the vague reply and finally complainant came to know that the said site bearing No.136 is already been allotted to someone else.  The complainant after hearing this was every much annoyed and on 17.02.2014 he sent an e-mail to the OPs cancelling the booking of the said site and asked for refund of advance sale consideration amount. 

2. On 01.03.2014 the complainant once again submitted a letter of cancellation to the OPs for which authorised representative of OPs having acknowledged the said letter promised to refund the advance amount on 17.03.2014.  The OPs thereafter failed to refund the advance amount as promised by them on 17.03.2014 in pursuance of the terms and conditions of the booking form.  The complainant thereafter approached the HSR layout police with a complaint and the authorised representative who appeared before the police undertook to refund the amount on or before 28.03.2014.  Considering the assurance of the OPs the complainant did not proceed with the complaint.  However, the OPs again failed to refund the amount by 28.03.2014.   The complainant thereafter sent several mail and requested to refund the amount, but they went on taking time on one or other pretext.  Therefore, the complainant got issued a legal notice to the OPs calling upon to refund the advance amount together with interest.  The OPs though undertook to refund the advance amount, but again failed to refund the advance amount.  Therefore, he was compelled to approach  this Forum with a request to direct the OPs to refund him a sum of Rs.2,88,000/- paid by him towards booking of the site, Rs.50,000/- towards compensation of deficiency in service, Rs.20,000/- towards fee paid for obtaining legal opinion together with litigation cost of Rs.10,000/-.

3. In response to the notice issued, OPs appeared through their advocate and filed version admitting the transaction between themselves and complainant.  However they contended that a sum of Rs.2,88,000/- paid by the complainant is not towards site No.136 alone but towards both the sites bearing sites No.128 and 136.  It is further contended by the OP that the said advance amount is 15% of the value of the both the sites and as per terms and conditions of the application the complainant is entitled to obtain an agreement of sale only if he pays 30% of the total sale consideration.  Therefore, it is contended by the OPs that since the complainant has not paid 30% of the total sale consideration in terms of the booking form he is not entitled to an agreement of sale.  OPs further contended that after receipt of the letter of cancellation from the complainant they agreed to refund the advance amount to the complainant.  It is further contended by them that as per terms and conditions of the booking the complainant is neither entitled to any damages nor interest on the said amount.  The OPs further contended that the complainant is not entitled to any legal expenses etc. However the OPs submitted that they are ready to pay said amount of Rs.2,88,000/- to complainant. Therefore, the OPs prays for dismissal of the complaint with a direction to the complainant to appear before them and receive the said sum of Rs.2,88,000/-.

4. On the rival contention of both the parties, the points that arises for our determination in this case are as under:

1. Whether, the complainant proves the deficiency in service on the part of the OPs as alleged in the complaint?

2. If so, what order or relief the complainant is entitled to?

5.  The complainant to substantiate the allegations made in the complaint filed his affidavit evidence in lieu of oral evidence and also produced copy of the booking form and other relevant documents including the e-mail correspondences between them, so also the copies of legal notice and the reply.  The OPs in support of their case filed affidavit evidence of their Deputy General Manager Mr.Roopesh and placed reliance on certain documents including the e-mail correspondences etc.  Both the parties submitted their written submission and placed reliance on certain authorities. 

6. Our answer to the above points:

7. POINT NO.1:  The OPs admitted the receipt of Rs.2,88,000/- from the complainant towards the sale of the sites as mentioned in the complaint.  The OPs also admitted their liability to repay the said amount to the complainant.  However, the OPs contended that despite their instruction to come to their office to collect the said advance amount the OP did not come to their office and collected the amount.  Therefore, it is contended by the OPs that there is no any deficiency of service on their part.

8. It is pertinent to note that either in their version or in the affidavit evidence the OPs did not deny that the land Sy. No.190/1/2 in which site No.128 is situated, was mortgaged with PLD Bank at relevant time of the transaction in this case.  The OPs did not deny that they did not hold clear title over of the said site so as to execute an agreement of sale in favour of the complainant.  Thus it is apparent that the OPs despite mortgaging the land Sy. No.190/1/2 to PLD Bank misled the complainant and made him to part away with huge money towards advance for the sale of the said site.  This conduct of OPs amounts to gross negligence and also unfair trade practice. 

9. Since the OP did not had a selected title over site No.128 the complainant had requested them to treat the said advance amount of Rs.2,88,000/- as 30% advance amount towards the sale of site No.136.  The receipt that the total consideration agreed for the sale of site No.136 is Rs.9,60,000/-. Rs.2,88,000/- paid by the complainant amounts to 30% of the total consideration amount.  Therefore, the OPs were liable to execute an agreement of sale in favour of the complainant inspite of site No.136.  However, the OPs neither executed the agreement of sale nor refunded the amount.  When the OPs failed to execute the agreement of sale within stipulated period as mentioned in the booking form.  Complainant having no other choice has cancelled the booking and requested the OPs to refund the advance amount of Rs.2,88,000/- paid by him.  The complainant has produced the letter of cancellation of site, one of which is dated 17.02.2014 and other is dated 01.03.2014. In pursuance of one of the terms and conditions of the booking form the OPs are liable to refund the booking amount within 30 working days from the date of the cancellation.  For the reasons best known to them the OPs have failed to act in accordance with the terms and conditions of their own booking form which again amounts to gross negligence and gross deficiency in service.  Despite their willingness to refund the said amount as per their own e-mail communication dated 20.03.2014, OPs have failed to refund the said amount without their being any valid cause.  Nothing prevented the OPs to send the said amount through registered post to the residence of the complainant either by DD or cheque.   The OPs without their being any valid reason have retained the amount of Rs.2,88,000/- with them.  Therefore, they are liable to pay interest on the said amount.  Further, the conduct of the OPs in not refunding the said amount within stipulated period must have caused the complainant great inconvenience, hardship and mental agony.  Therefore, the OPs are liable to pay adequate compensation towards deficiency in service on their part. 

10. In view of the discussion made above, we are of the opinion that the OPs have to be directed to refund the said sum of Rs.2,88,000/- to the complainant together with interest at the rate of 18% per annum from 01.04.2014 till the date of realization.  Further, the OPs are directed to pay compensation of Rs.25,000/- for  deficiency in service on their part together with litigation cost of Rs.5,000/-.

11. The order could not be passed within the stipulated time due to heavy pendency.  In the result we proceed to pass the following:-

ORDER

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act 1986 is allowed.

2. OPs are hereby directed to refund a sum of Rs.2,88,000/- to the complainant together with interest at the rate of 18% per annum from 01.04.2014 till the date of realization.

3. Further OPs are directed to pay compensation of Rs.25,000/- for  deficiency in service on their part together with litigation cost of Rs.5,000/-.

4. The OPs shall comply the order of this Forum within a period of four weeks from the date of communication of the order.
5. Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Forum by us on this the 22^nd day of January 2016)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

C.C.No.1086/2014

Witness examined on behalf of the complainant dated 17.10.2014

1. Sri.Bhaktavatsalam.P

Witness examined on behalf of the OP dated 21.11.2014

1. Sri.Roopesh Sulegai

MEMBER                               MEMBER                              PRESIDENT