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

DATED 06^TH DAY OF JULY 2022

ORDER

KUM. RENUKADEVE DESHPANDE, MEMBER

1. This complaint has been filed under section 35 of C.P.Act 2019 (herein after referred as “Act”)  against the OPs for the following reliefs.

1. To direct the     opposite parties to refund the amount of Rs.11,16,000/- paid by the complainant to the OP from 13.03.2013 to 06.10.2015.
2. Direct the OP to pay a sum of Rs.2,00,000/- compensation, mental agony and harassment caused to complainant  by not refunding Rs.11,16,000/- paid by the complainant to OP from 13.03.2013 to 06.10.2015
3. Direct the OP to pay  cost of expenses towards litigation.
4. Court such other relief as this Hon’ble Commission deems fit in the interest of justice and equity.

2.The brief facts of the complaint is as follows:

That the OPs in the year 2013 have  represented to the complainant that they are of business of real estate and they have developed  residential vacant plots by name Max-Orchids, Phase-III situated at Devanahalli, Bengaluru and had offered to sell two vacant plots bearing no.8 & 9 measuring 1200 Sq.ft. at Max-Orchids,Phase-III to the complainant for a sale consideration each plot was fixed at Rs.6,96,000/-. Total sale consideration of two plots were booked at Rs.13,92,000/- towards above mentioned sale consideration as monthly installments. In total 31 installments were paid  amounting to Rs.11,16,000/-. The copy of the receipt dt.11.03.2013 and 03.01.2014 issued by the OPs. The OPs are liable to execute sale deed in the month of October 2015, but when contacted they informed the complainant  that few approvals from Government of Karnataka and Local bodies  has to be sought and same will be completed within few weeks. Since 2017 they kept in postponing  the registration of sale deed on one or other protext. Even after requests for refund of amount of Rs.11,16,000/- the OPs by avoiding the complainant. Finally, the complainant on 19.12.2018 issued legal notice  for asking to refund of said amount, same was acknowledged by the OPs on 22.12.2020 and 24.12.2020, but the OPs have not replied. This followed up to till February 2020. When the complainant visited OPs office to enquire the status of refund the OPs informed that there is not scope for refund.

OPs have neither  executed sale deed in favour of the complainant nor refunded Rs.11,16,000/- to the complainant. The said act of the OP amounting to deficiency of service, untrade practice, fraud and misrepresentation. Hence, this complainant.

3. On receipt of notice, OPs did appeared and not filed version. The OPs contended that since complaint is vexatious, frivolous and not maintainable either in law or on facts and liable to be dismissed lemine. The allegations made in the complaint with respect to the booking  of site no.8 & 9 in Max Orchids, Phase-III, costs Rs.7,38,000/- and  instead of Rs.11,16,000/- advance amount is denied as false. The complainant is not consumer as per section 2(1)(d)(II) of the Act, because  the complainant booked  aforesaid two plots for commercial purpose and not for livelihood. One site is enough for livelihood as per law. The complaint is barred by limitation of six years. Hence, complaint is not maintainable. The OPs prays to dismiss the complaint.  The complainant is ready to get registered   the same or alternative sites to get register the absolute  sale deed by paying balance sale consideration in project of Max Marvel or Max Jaghruthi, which are fully developed  by obtaining all government approvals.  By taking contentions the OP denies all other allegations made in the complaint and prays  this commission to dismiss the complaint.

4.  The  Complainant filed affidavit evidence through GPA holder and also produced documents  are marked as exhibits A1 to A9.  OPs filed version and  have not filed affidavit evidence and not produced any documents.

5.    Though opportunity provided to complainant and OP, both parties not advanced their  arguments. Perused records.

6.       The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OPs as alleged in the complaint?
2. What  relief or order?

7. Our answer to the above points are as under:

       Point No.1:- Affirmative in part.

      Point No.2:-As per the final order.

REASONS

8.  Point No.1:   We have briefly stated the contents of the complaint as well as version filed by the OP. We going through the contentions of the complaint it shows that the complainant had booked site bearing no.8 & 9 of Max Orchids, Phase-III measuring  1200 sq.ft. situated at Devanahalli, Bengaluru for a total sale consideration of Rs.13,92,000/-( Each plot booked for Rs.6,96,000/-) and the complainant  has paid monthly installments basis it amounts to Rs.11,16,000/-. The OPs acknowledges the receipt of Rs.11,16,000/-. Copy of the receipt dt.11.03.2013 and 03.01.2014 issued by OPs is marked as Exhibit P3& P4 and also copy of bank statement, in which the payment credited to their account marked as Exhibit P5.

9.  The OPs were liable to execute sale deed in the month of October 2015, when  contacted the OP they informed the complainant  that few approvals  from the Government of Karnataka and  other local bodies  has to be sought and same will be completed within few weeks. But up to 2017 they kept on postponing  the registration of the sale deed with one or other protext. In spite of  approach of the complainant several times requesting the OPs to get register the sale deed, but OPs have not executed registered sale deed. The complainant deprived to have  plots of their own. Therefore, the complainant asked the OP for refund of advance amount of Rs.11,16,000/-. Since, there is a deficiency of service on the part of OPs.  When the complainant sought for refund of advance amount on the part of deficiency of service of OP.

10. The complainant filed his affidavit evidence through GPA holder and relies on documents 1 to 9 marked as Exhibits A1 to A9.

11. OPs filed version, allegations made in the complaint with respect to booking of site no.8 & 9 in Max Orchid, Phase-III total cost of site is Rs.7,38,000/- and the complainant paid Rs.11,16,000/- advance amount is denied by OPs, but did not adduce affidavit evidence and documents for prove of OPs case.

12. The  OPs contends  in version, the complainant is not consumer as per section2(1)(d)(II) of the Act, because the complainant has booked aforesaid 2 sites for commercial purpose and not for his livelihood. In this regard application for two plots by the complainant does not means to commercial purpose……same OP did prove the contents by producing documents or evidence for support of his contents. The Hon’ble National Commission ruled in decision reported in 2022(2) CPR 292 in the matter between Nitishree Victims  Welfare Association V/s M/s Shourya Tower Pvt. Ltd. That mere booking  of more than one residential units does not “if so  the facto” will taken as commercial purpose.  In view of this reported decision it may be rarely held that mere submission of application for two plots by the complainant does not means to commercial transaction.

The OP also contends that complaint is barred by limitation of six years and the complaint is not maintainable, but the complainant has repeatedly requested the OPs for allotment of site till 2017, they kept postponing the registration of the sale deed on one or other pretext. In support of above contents the decision reported  in IV(2017) CPJ 229(NC) where it is held that under section 24(A) and 21(a)(i) limitation continuous  cause of action in failure of delivery of possession of the bungalow given rise to continuous cause of action to complainant. In the instance case, the OP is also not legs to stand. In this light of above decision we come to the conclusion that complaint filed by the complainant is well within the time.

13. In the above reasons  we come to the conclusion that  complainant has proved the deficiency of service  much less the unfair trade practice played by the OP. Accordingly, we come to the conclusion that  the complainant is entitled to refund of  Rs.11,16,000/- with interest @ 9% p.a. by way of compensation with litigation cost of Rs.5,000/-. Accordingly, we answer the Point-1 in the affirmative in part.

14. Point No.2: In the result, we proceed to pass the following

O R D E R

1. The complaint is allowed in part.
2. The OP shall refund Rs.11,16,000/- with interest at 9% p.a. from the date of respective payments till realization as compensation and cost of litigation of Rs.5,000/-.
3. The OP shall comply this order within 60 days, failing which the OP shall pay interest at 10% p.a. on Rs.11,16,000/- 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 6^th  day of July, 2022)

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

Documents produced by the representative of opposite party – R.W.1 : Nil