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

DATED 25^th DAY OF FEBRUARY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed under Section 35 of C.P.Act, 2019 against the OPs for the following reliefs:-

(a) Direct the OP to refund a sum of Rs.3,00,000/- with 18% interest to the complainant which is legally entitled to received from the OP for the two plots, which was paid towards the advance amount and booking amount to purchase the residential plot/site No.260 and plot No.204 and 280 in the proposed layout in Max Marvel-III of the OP site within the Sy.No.14, 15 and 16 situated at Maragondana Halli, Kundana Hobli, Devana Halli Taluk, Bengaluru Rural District.

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

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

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

(e) Grant such other relief/reliefs as this Hon’ble Commission/Forum deems fit to under the facts and circumstances of the case, in the interest of justice and equity.

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

The complainant booked three plots bearing No.260,204 and 208 measuring 30 x 40 ft. for a price of Rs.4,80,000/- each.  The complainant paid Rs.1,00,000/- in respect of plot No.260 on 16.09.2012 by means of a cheque.  He also made payment of Rs.10,000/- on 27.08.2012 by way of cash and Rs.90,000/- by means of a cheque dated 30.08.2012 in respect of plot No.204.  The complainant has also made payment of Rs.1,00,000/- by way of cheque in respect of plot No.280.  It is further case of the complainant that the repeated requests, the OP failed to allot the plots.  Ultimately, by letter dated 07.03.2020 and legal notice dated 07.06.2021, the complainant called upon the OP to refund Rs.3,00,000/- with interest at 18% p.a. and compensation.  But, the OP failed to do so.  This act of the OP amounts to deficiency of service.

3. In response to the notice, OP appears through his counsel and files a version.  The OP admits the payment of Rs.3,00,000/- in respect of plot Nos.260, 204 and 208 against the total cost of Rs.7,38,000/-.  The complainant is not a consumer and complaint is barred by limitation.  He requests to dismiss the complaint.

4. The complainant has filed the affidavit evidence and relies on 13 documents. No evidence is adduced by the OP.  No argument is advanced by both the parties.    

5. 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?

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

       Point No.1:  In the affirmative.

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

7. Point Nos.1 and 2:  According to the complainant, he booked three plots bearing Nos.260, 204 and 280 by paying advance amount of Rs.1,00,000/- each to the OP and OP failed to refund the amount despite repeated requests, letter and legal notice.
8. It is one of the contention of the OP that the complainant is not a consumer who applied for number of plots, the OP placed reliance on the order of 3^rd Additional District Consumer Redressal Forum in CC No.791/2016 dated 31.12.2018.  We carefully perused this order, it indicates that the complainants had applied for two plots bearing Nos.38 and 39.  But, this vary Op being the OP in that proceedings admitted that he was ready to pay principle amount after deducting 15% of advance amount. The OP also contended that the complainants failed to comply the booking norms. 
9. The documents produced by the complainant are not in dispute.  We carefully perused the document No.1 to 13 perused by the complainant.  The complainant had applied for three plots each measuring 30 x 40 ft. worth Rs.4,80,000/- and paid Rs.1,00,000/- each.  We carefully perused the general terms and conditions mentioned in the booking form, the condition No.3 indicates that “The payment should be made by way of demand draft/local cheque favoring Maxworth Realty India Limited”.  But, in this case, present OP has received cash of Rs.10,000/- on 26.08.2012.  It clearly indicates that both the parties were not serious about terms and conditions mentioned in the booking form.  Even though, there is a condition that sale agreement cannot be changed or altered.  It is relevant note that there is no sale agreement between the parties to this proceeding.  The another condition of booking form indicates that sale agreement should be executed within 20 days from the date of booking or stipulated period of time, depending on the project booked and sale agreement will be executed only on 30% payment of the total sale consideration.  It is not the case of the OP, it called upon the complainant to pay 30% of total consideration for execution of sale agreement.  The inaction on the part of parties clearly indicates that they are not serious about these general terms and conditions.  Therefore, decision relied on by the OP is not applicable to the present case on hand. 
10. The complainant made a request for cancellation of plots booking and repayment of the advance booking amount by E-mail dated 5^th April, 2021.  The complainant also served legal notice dated 14.06.2021 calling upon the OP to refund Rs.3,00,000/- paid as advance.  In response to this E-mail and notice, the Op has not responded.  Therefore, complaint filed on 30.08.2021 within two years from April 2021 is not barred by limitation.  Therefore, first contention of the OP is rejected.
11. It is true that complainant booked three plots. But it does not mean that the complainant was indulged in commercial activities and he booked these plots with the purpose of resale.  Therefore, the complainant is a consumer and complaint filed by him is maintainable.
12. The payment of Rs.3,00,000/- in respect of three sites is not in dispute.  Despite E-mail and legal notice, the OP failed to refund the amount.  Therefore, complainant is entitled to refund of Rs.3,00,000/-.  The complainant has not paid advance as an investment.  Therefore, the complainant is not entitled to interest from the date of payment till realization.  The complainant claims Rs.4,00,000/- as a compensation without any basis and evidence.  The compensation of Rs.4,00,000/- is exorbitant.  Amount paid by the complainant is lying with OP. Therefore, it is proper to award compensation of Rs.1,00,000/- only.  The complainant has availed service of advocate and paid nominal court fee.  The claim of Rs.50,000/- towards legal expenses is too exorbitant. Therefore, it is proper to award Rs.10,000/- towards cost of litigation.
13. Point No.3:- In view of the discussion referred above, complaint requires to be allowed in part.  OP is liable to refund Rs.3,00,000/- with compensation of Rs.1,00,000/- and Rs.10,000/- towards cost of litigation to the complainant.   We proceed to pass the following 

  O R D E R

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

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 25^th day of February, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OP which are as follows:-