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

DATED 7^TH DAY OF MARCH 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act, 2019 (herein under referred as an Act) for the following reliefs against the OP:-

(a) Direct the OP to refund Rs.2,00,000/- with 18% interest to complainant which is legally entitled to received from the OP for two plots/sites bearing Nos.311 and 312 in the proposed layout in MAX MARVEL-III within Sy.Nos.14,15 and 16 situated at Maragondana Halli, Kundana Hobli, Devana Halli Taluk, Bangaluru Rural District.

(b) Direct the OP to pay a compensation of Rs.2,00,000/- towards mental agony and hardship caused to complainant.

(c) Direct the OP to pay a compensation of Rs.2,00,000/- towards the deficiency of service committed by OP.

(d) Direct the OP to pay a sum of Rs.50,000/- towards the legal expenses and litigation charges.

(e) Grant such other reliefs.      

2. The case set up by the complainant in brief is as under:-

The complainant has paid Rs.1,00,000/- an advance in respect of site No.311 on 27.08.2012 and he has also paid Rs.1,00,000/- an advance amount in respect of site No.312 measuring         30 x 40 ft. each to the OP on 30.08.2012.  The total cost of both the sides was Rs.9,60,000/-.  But, OP neither developed the plots nor refunded the advanced amount.  Therefore, he issued a letter dated 07.03.2020 cancelling the booking and called upon the OP to refund Rs.2,00,000/- with interest. The OP despite receipt of legal notice dated 28.06.2021 failed to refund the amount.  The OP has committed deficiency of service is not developing the sites and non-refund of amount.  Hence, this complaint.

3. After receipt of notice, the OP appears and files version.  The OP denies receipt of Rs.2,00,000/- in respect of site Nos.311 and 312.  The complainant is not a consumer as per Section 2(1)(d) of the C.P.Act as complainant booked two sites for commercial purpose and not for his livelihood.  The OP is always ready and willing to execute absolute sale deed in favour of the complainant either in Max Marvel Project or other project.  But, complainant is not ready to accept the terms and conditions.  The complaint is barred by limitation.  He requests to dismiss the complaint. 

4. The complainant files his affidavit evidence and relies on 10 documents.  No evidence is adduced on behalf of OP.  Heard the arguments of the advocate for complainant only.  No argument is advanced on behalf of OP.

8. The following points arise for our consideration:-

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 Nos.1 and 2:  Partly in the affirmative.

      Point No.3: As per final orders

REASONS

10. Point Nos.1 and 2:  Even though, OP denies receipt of advance amount of Rs.2,00,000/- from the complainant.  But, evidence of complainant including Annexure-A1 to A6 clearly indicate that the complainant made payment of Rs.1,00,000/- in respect of site No.311 and Rs.1,00,000/- in respect of site No.312 each measuring 30 x 40 ft. against the consideration amount of each site is Rs.4,80,000/-.  The complainant by issuing letter dated 07.03.2020 got cancelled the booking and called upon the OP to refund Rs.2,00,000/- with interest at bank S.B. account 4.5%. Despite receipt of legal notice dated 28.06.2021, OP failed refund the amount.
11. It is pertinent to note that even though OP denies receipt of amount of Rs.2,00,000/-.  But, the OP specifically contends that the complainant has booked two sites for commercial purpose.  The burden lies on the OP to prove that the complainant booked 2 sites bearing Nos.311 and 312 for commercial purpose.  OP failed lead evidence in this regard. It is relevant to note that site Nos.311 and 312 are adjacent to each other.  When the sites are available at 30 x 40 ft., there is nothing wrong on the part of the complainant for booking 2 sites measuring 30 x 40 ft. with an intention to have a common sites measuring 60 x 40 ft.  Therefore, complainant is a consumer.
12. It is relevant to refer general terms and conditions of booking form, Clause No.6 of booking form clearly indicates that “in case of cancellation of booking by the purchaser Maxworth Realty India Pvt. Ltd., will not be liable to pay any interest on the booking amount” and further indicates that “refund of booking amount will be done after 30 working days from date of cancellation”. Even though, as per the terms of booking form, the OP is not liable to pay interest on booking amount, but the OP even after lapse of 30 working days from 07.03.2020 failed to refund the amount to the complainant.  It is also relevant to note that the sale agreement will be executed only on payment 30% payment of total sale consideration.  Even though, OP contends that the sites were fully developed and ready for registration.  But, no point of time, the OP called upon the complainant to pay the balance amount and to get sale deed executed in his favour.  The OP neither placed any records nor substantiated this contention through evidence.  Even after lapse of 30 working days from 07.03.2020, the OP failed to refund the amount.  The OP has not placed any material to show that the sites were fully developed and ready for execution of sale deed even prior to 07.03.2020.  Therefore, the contention of OP with regard to sites fully developed for sale for registration cannot be accepted.  Even though, OP is not liable to pay interest on the booking amount, but the OP was liable to refund amount within 30 working days from the date of cancellation dated 07.03.2020.  Even 30 working days added to 07.03.2020, the OP was supposed to refund the amount atleast by 15^th April 2020.  The failure on the part of the OP even after expiry of 30 working days from 07.03.2020 amounts to deficiency in service.
13. It is true that the booking was made in August 2012, but both the parties were not serious about sale and purchase of sites.  Under such circumstances, the OP is not right saying that complaint is barred by limitation.
14. As per the terms and conditions, the complainant is not entitled to interest from the date of booking.  But, complainant is definitely entitled to compensation for non-refund of amount atleast after expiry of 30 working days from 07.03.2020.  
15. The complainant makes a claim of interest at Rs.3,24,000/- and Rs.2,00,000/- towards compensation and Rs.50,000/- towards cost of litigation. But, this claim of interest is not permissible in view of the terms and quantum of compensation is exorbitant.  The OP pressed into the service, order of 3^rd Additional District Consumer Commission, Bengaluru in CC No.791/2016 dated 31^st December, 2018 stating that the complainant was not a consumer.  It is pertinent to note that in the decision there was a claim, to direct the OP to execute the sale deed.  The Consumer Forum/Commission has no power to direct the OP to execute the registered sale deed in respect of the site.  Therefore, the above order not applicable to the present case on hand.  It is also relevant to note that the complainant in that case had sought execution of sale deed in respect of site Nos.38 and 39.  In this case, the complainant never approached the OP to allot the site.  But, as per the terms and conditions of the booking form, the complainant was entitled to cancel the booking and amount will be refunded within 30 working days from the date of cancellation.  The complainant by issuing letter dated 07.03.2020, cancelled his booking.  This complaint came to be filed on 30.08.2021.  Without cancellation of booking, the complainant was not entitled to get the refund of amount. When the letter of cancellation itself is 07.03.2020, the complaint came to be filed within two years from that date. Under such circumstances, there is no substance in the contention of the OP that the complaint is barred by limitation.
16. The advocate for the complainant placed the reliance on the following decisions:-

1. Ghaziabad Development Authority Vs. Balbir Sing – Supreme Court of India.
2. State Consumer Chandigarh in the decision of Prem Lata Vs. Manohar Infrastructure.
3. National Consumer Commission decision Bhrigu Kaushiv and others Vs. M/s Ansal Hitech Township.
4. Lata Construction and others Vs. Dr.Ramesh Chanddra Ramilal Sha, Supreme Court decision.

17. We carefully perused the facts and ratio involved in the above decisions. In the present case on hand, the complainant is not entitled to interest on booking amount paid.  But, the OP failed to refund the amount within 30 working days from 07.03.2020.  Under such circumstances, the complainant is entitled to compensation.  The claim of cost of litigation of Rs.50,000/- is exorbitant.  It is proper to award compensation of Rs.1,00,000/- and cost of litigation is Rs.10,000/- directing the OP to refund Rs.2,00,000/- to the complainant with compensation and cost of litigation.
18. Point No.3:- In view of the discussion made in point Nos.1 and 2, the complaint requires to be allowed in part.  The Op is liable to refund Rs.2,00,000/- with compensation of Rs.1,00,000/- and Rs.10,000/- towards cost of litigation. We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OP shall refund Rs.2,00,000/- with compensation of Rs.1,00,000/- and Rs.10,000/- towards cost of litigation to the complainant.
3. The OP shall comply this order within 60 days from this date.  Failing which, the OP shall pay interest at 12% p.a. on Rs.2,00,000/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 7^th day of March, 2022)

Documents produced by the Complainant which are as follows:-

Document produced by the OP which is as follows:-