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

DATED 24^TH DAY OF JULY 2023

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 for the following reliefs against the OP:-

1. Allot plot No.70, measuring 9 X 12 sq. meters(1162 sq. ft) in the Max souparnika project of the Maxworth Realty situated at Kusugal Village, Shiruguppi Hobli, Hubli Taluk immediately.
2. Or alternatively refund an amount of Rs.3,74,200/- along with compound interest of 24% p.am from the date of receipt of each payment.
3. Payment of compensation of Rs.10,00,000/- towards damages for deficiency of service
4. Rs.50,000/- towards cost of the complaint
5. Grant such other direction that this Hon’ble Commission deems fit

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

It is the case of the complainant that she had booked a plot No.70 in the project situated at Kusugal Village, Shiruguppi Hobli, Hubli Taluk and project known as Max Souparnika, developed by the OP and paid a sum of Rs.58,000/- on 04.11.2015, Rs.1,16,200/- on 21.12.2015  through cheque and again she has remitted an amount of Rs.1,00,000/- on 23.04.2017 through cheque. Again the complainant has remitted an amount of Rs.1,00,000/- on 06.07.2017.  The complainant has paid a total amount of Rs.3,74,200/- to OP as a consideration amount for allotment of plot No.70.

3. It is further case of the complainant that the complainant not only exhausted her hard earned savings but also borrowed hand loans from friends and relatives of her husband.  The complainant husband also borrowed a loan from Bajaj Finance Services and also from HDFC Bank.
4. The complainant and her husband have approached the OP as well as other officials of the OP on several occasions in the year 2017 and demanding registration of plot No.70 in the layout. The husband of the complainant have also spent considerable amount towards travel and other incidental expenses.  During the last two years the OP started avoiding the meeting and telephone calls of the complainant.  In view of this the complainant and her husband have sent several whatsapp messages to the OP and at last the Dy.General Manager of the OP Mr.Roopesh Sulegai, vide his reply dated 31.03.2021 assured that he will inform the complainant of the date of registration and asked them to wait for his call.  When the Ops have failed to register the plot NO.70 even after seven years after received full consideration amount, the complainant have got issued legal notice on 26.122.2022 calling upon the OP to allot the site and register the same in favour of the complainant or otherwise refund the amount with compensation of Rs.10,00,000/-  even after receipt of the legal notice, the OP have neither allotted the site nor refunded the amount with interest.  The complainant is eagerly waiting from the last seven years, that the OP will allot a site but the Ops failed in their notice to allot the residential site.  There is total deficiency of service by the Ops. Hence the complainant filed this complaint.
5. After registration of the complaint, notice has been issued to OP.  After receiving notice, OP has appeared through the counsel and filed version. Since the complaint is vexatious and frivolous is not maintainable either in law or on facts and liable to be dismissed in lemine.
6. The allegations made in complaint with respect to booking of site No.70 in Max Souparnika the for total sale cost is Rs.6,00,000/- and complainant paid Rs.3,74,200/- advance amount denied as false. Further allegations made in the complaint with respect to there were no developmental activities carried on after receipt of the said amount waiting of OP for approval from the Government Authorities, made several request to register the sale deed. Ultimately requested to refund the amount, OP given the false promise and assurance, cheated the complainant by receiving the amount with a dishonest intention, the act of the OP is unfair trade practice and has utterly caused deficiency of service all are baseless allegations, are specifically denied as incorrect.
7. The OP always ready and willing to execute the absolute sale deed in favour of the complainant either in the “Max Souparnika” project which are fully developed by obtaining all government approvals but the complainant not ready to register.  When the complainant violated the terms and conditions of booking form and is not ready and willing to purchase the sites ready with full consideration to get absolute sale deed, unfair trade practice and deficiency of service on the part of the OP does not arises. Hence, pray for dismissal of the complaint.
8. The complainant has also filed Rejoinder to the version filed by the OP stating that the complaint is not barred by limitation.  The cause of auction is a recurring and continuing leading to the complainant to issue legal notice dated 26.10.2022.  The OP failing either to allot the site or to refund the amount with interest.  Hence the complaint is filed within the period of limitation as the cause of action is a continuing one. Hence the complainant prayed to reject the version filed by the OP.
9. Complainant has filed his affidavit evidence.  The complainant has produced documents which are marked as Ex.P1 to Ex.P16.  The OP has not filed affidavit evidence and also written arguments. Heard the counsel for complainant.
10. 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?

11    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

12. 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 and documents 1 to 16.
13. We have perused the documents produced by the complainant.  Copy of the booking form marked as Ex.P1,  Copy of the cheques dated 04.11.2015, marked as Ex.P.2, Copy of the payment receipts issued by OP as Ex.P3.Copy of assignment agreement executed by OP on 14.11.2015 marked as Ex.P4, Copy of the bank statement, marked as Ex.P5 and P6, Copy of the receipts for having paid Rs.1,00,000/- each marked as Ex.P6 and P7, Copy of the loan account statement of Bajaj Finance, marked as Ex.P8 and P9, Loan account statement of HDFC Bank, marked as Ex.P10, whatsapp correspondence between the complainant and the General Manager of OP, marked as Ex.P11 to P13, copy of the legal notice, marked as Ex.P14, copy of the advertisement furnished by the OP Ex.P.15.
14. We have perused the averments, affidavit evidence and documents, it is crystal clear that complainant with an intention to purchase a plot, approached the OP and paid advance amount of Rs.3,74,200/- by way of cheques and payments receipts as per Ex.P2 and 3. After receiving the above said advance sale consideration from the complainant, the OP had not taken proper steps as guaranteed and the OP has stopped development of the Max Souparnika project.  The complainant approached the OP requesting them to develop the project and to sell schedule property to the complainant as she has made arrangements for payment of the remaining sale consideration to the OP company.  But, the OP has not at all heeded to the request of the complainant and it has willfully neglected the development of project.  The OP company failed to execute the sale deed of the property in favour of the complainant and thus deprived the complainant of having ownership of the property and it has cheated the complainant by making misrepresentation and false assurances and it amounts to unfair trade practice and deficiency of service and ultimately complainant requested the OP to refund a sum of Rs.3,74,200/- the advance sale consideration made along with  interest.
15. The legal notice dated 26.10.2022 was also issued to OP, served on OP.  The said legal notice is produced as Ex.P14.
16. The attitude of the OP company is only making of false promises and collecting of advance amount and making false assurances and all this attitude of OP amounts to unfair trade practice, misrepresentation, cheating.  The complainant has suffered hardship, mental agony and financial loss due to the unfair trade practice.
17. From the available materials on record, it is crystal clear that OP having received a sum of Rs.3,74,200/- from the complainant till date the OP neither developed the project nor refunded the amount inspite of service of notice.  The act and deeds of OP amounts to deficiency of service on his part, as he has collected the amount by giving false assurances of the development of the land into residential plots and failed to execute the sale Deed and also failed to refund the advance amount. 
18. Hence we are satisfied that the complainant proved deficiency in service on the part of OP.  Under the circumstances, we are of the considered view that OP is liable to refund the advance amount of Rs.3,74,200/- to the complainant along with interest at 10% p.a. by way of compensation from the date of payment till realization and also direct to pay litigation cost of Rs.10,000/-.  Accordingly, Point No.1 in the affirmative and Point No.2 partly in the Affirmative.
19. Point No.3:  In the result, we pass the following:

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.3,74,200/- with interest at 10% p.a., from the date of respective payment till realization.
3. OP is further directed to pay a sum of Rs.10,000/- towards litigation expenses to the complainant.
4. OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.3,74,200/- 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 24^TH day of JULY, 2023)

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

Documents produced by the representative of opposite party;

NIL