Complaint filed on: 24.07.2015
Disposed on: 09.09.2016
BEFORE THE BENGALURU IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COMPLEX, 1ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027
CC.No.1362/2015
DATED THIS THE 09th DAY OF SEPTEMBER 2016
PRESENT
SRI.H.S.RAMAKRISHNA, PRESIDENT
SRI.D.SURESH, MEMBER
SMT.N.R.ROOPA, MEMBER
Complainant: -
Mrs. Nutan Gupta,
W/o Sri. Deepak Gupta
R/at # Cypress-907,
St Johns Wood Apartment,
80, Tavarekere Main Road, Bengaluru-560029
V/s
Opposite parties:-
M/s Anuradha Properties & Townships Pvt. Ltd.,
Represented by its MD Mr.Ramachandra Reddy and His GPA holder Mr.C.Rajashekar Reddy,
#603, 15th Cross,
J.P.Nagar, 6th Phase, Bengaluru-560078
ORDER
SRI. D.SURESH, MEMBER
This is a complaint filed by the complainant against the Opposite Party, under section 12 of Consumer Protection Act, 1986, praying to pass an order, directing to the Opposite Party to refund amount of Rs.6,50,000/- collected from the Complainant along with interest at 24% p.a. till the date of realization and to pay compensation of Rs.2,50,000/- for mental agony and harassment for delay of 9 years and to pass such other order as the Honorable forum deems fit including legal expenses.
2. The brief facts of the complaint can be stated as under:-
The Opposite party originally offered to sell the site bearing No.127 & 128 each measuring 2400sqft carved out of the above mentioned survey number 182 at Bookasagara Village, Jigani Hobali, Anekal Taluk and collected a sum of Rs.6,50,000/- from the Complainant on 29.04.2006 as an advance amount and issued receipt bearing No.1913 dated 29.04.2006 and the Opposite party told the Complainant to collect the sale agreement of respective sites next day. Thereafter, the Opposite party informed the Complainant that the said sites No.127 & 128 are already booked by some other party and as such he convinced the Complainant to take sites No.20 and 375 instead of sites No.127 & 128 and hence the Opposite party alloted the sites No.20 & 375 in the same layout measuring 2460 and 2400 sqft respectively. Accordingly the Opposite party executed the sale agreements in respect of site No.20 & 375 on 29.04.2006 agreeing to register the sale deed within 90 days by collecting balance amount. After laps of few days that when the Complainant approached the Opposite party to know the status about approval from the APA/BMRDA, the Opposite party informed to the Complainant that the approval is under process and they would inform the same at the moment the Opposite party receives the approval from the competent authorities. Then, when the Complainant made objection for the long delay and asked for compensation as the Opposite party promised in the beginning itself that any delay in implementation of the project will be compensated and accordingly Opposite party gave compensation of Rs.1,00,000/- to the Complainant in the month of August 2009. There after the Complainant made e-mail correspondences with the Opposite party on 05.08.2009, 19.02.2010, 27.02.2010, 15.03.2010, 02.04.2010, 23.05.2011, 28.09.2011, 08.11.2011, 30.11.2011, 16.04.2015, 10.05.2015 and lastly on 23.06.2015. But there was absolutely no response from the Opposite party. The Complainant personally visited Dayal Residency site at Bookasagara village and the Complainant shocked and surprised to see that the nothing except the barren land and further it is brought to notice that the Opposite party had already obtained approval for the project on 29.09.2007 from the Anekal Planning Authority and has already registered 60% of the sites released for registration and project without developing he collected huge money from the customers thereby defrauding and cheating to many investors, the Opposite party neither developed the layout nor registered the sites booked by the Complainant and did not refund the amount collected from the Complainant. The Complainant approached the Opposite party several times with in a span of 9 years, but the Opposite party did not show any inclination to repay the said advance amount and he expressed his inability to refund the amount. Finally Complainant got issued legal notice from her advocate on 08.07.2015 asking for refund the advance amount paid by the Complainant with interest at 24% p.a. But, even after receiving notice, the Opposite party has not responded, under the circumstances Opposite party is not only required to refund amount paid by the Complainant but also liable to pay compensation for the mental agony, harassment and inconveniences caused to the Complainant for over 9 years period. So the Opposite party committed deficiency of service punishable under CP Act. Hence, Complainant filed this complaint.
3. After service of notice Opposite party has appeared through his counsel and prayed time to file version. Inspite of granting sufficient time the Opposite party did not file version and accordingly this forum has recorded in the order sheet that the version of Opposite party is taken as not filed and posted the case for filing affidavit of Complainant.
4. So as to prove the case, the Complainant has filed his affidavit by way of evidence and produced documents along with complaint and also filed written arguments. We have heard the oral arguments of Complainant and we have gone through the oral and documentary evidence of the Complainant.
5. So from the averments of complaint of the complainant the following points arise for our consideration.
- Whether the complainant has proved the alleged deficiency of service by the Opposite Parties ?
- If so, what relief the complainant is entitled ?
Our findings on the above points are:
- Point No.1: In the Affirmative
- Point No.2: As per the order
REASONS
6. One Mrs.Nutan Gupta, who being a Complainant has filed his affidavit of sworn testimony reiterated the same as in the complaint and produced documents in respect of her case. The case of the Complainant is that, the Opposite party originally offered the Complainant to sell two sites bearing No.127 & 128 due to some inconveniences the Opposite party convinced the Complainant to take the sites bearing No.20 & 375 measuring 2460 sqft & 2400sqft respectively in the layout of Opposite party known as Dayal Residency comprising survey No.182 at Bookasagara village, Jigani hobali, Anekal taluk and same is represented by Managing Director Mr. M.Ramachandra Reddy and his GPA holder C.Rajashekar Reddy executed two agreement of sale in respect of above sites for consideration of Rs.13,32,500/- and another one for Rs.13,00,000/- respectively in favour of Complainant by receiving advance amount of Rs.3,25,000/- for each site it amounts to Rs.6,50,000/- in total for which the Complainant produced 2 agreements and receipt dated 29.04.2006. Further, as per the recitals of the said agreement, the seller has to execute the registered sale deed in favour of the purchaser within 30 days of completion of the project with all necessary amenities after obtaining required permission under the law. In the event of non-completion of project with all necessary infrastructure, the Opposite party agreed to refund the advance amount within six months from the date of this agreement to the Complainant on demand, but Opposite party failed to do so.
7. Thereafter Complainant personally visited the office of the Opposite party by that time the Opposite party informed to the Complainant that the approval is under process and they would inform the same to the Complainant at the moment the Opposite party receives the approval from the competent authority. Further the Complainant made many e-mail correspondences with the Opposite party in respect of the above transaction. The Opposite party furnished copies of said e-mail correspondences made on different dates for perusal of the Honorable forum. After seeing the facts and circumstances the Complainant doubting the honesty of the Opposite party and she visited the Dayal residency layout at Bookasagara village, Jigani hobli, Anekal taluk. When she visited the layout, she was shocked to see that there is nothing except the barren land and further it is came to know that the Opposite party had already obtained the approval for project on 29.09.2007 and has already 60% of sites released for registration by Anekal planning authority that to without development of the layout. But till date even though 9 years have elapsed as promised by the Opposite party neither developed the layout nor registered the site and even he has not come forward to make repayment of amount collected from the Complainant. Finally Complainant got issued legal notice on 08.07.2015 asking the Opposite party to refund the advance amount immediately along with interest at 24%, but the Opposite party has not responded. In support of this the Complainant has produced copy of legal notice and postal receipt. Hence, Opposite party has committed deficiency of service punishable under CP Act.
8. As we have gone through the case, the Opposite party has been placed exparte under the circumstances, the assertions of the Complainant remained unchallenged. So we have no reason to disbelieve the sworn testimony and documents filed in support of her case.
9. On making care full scrutiny of the oral and documentary evidence of Complainant, it is came to notice that even after laps of 9 years, the Opposite party did not come forward to execute registered sale deed by receiving balance consideration amount and whenever the Complainant approached the Opposite party, the Opposite party went on representing to the Complainant that the approval is under process. But as per the evidence of the Complainant, the Opposite party had obtained approval on 29.09.2007 and same has registered, 60% of the sites released from the concerned authority and has not been disclosed by the Opposite party and he kept the Complainant under dark. Further, the Opposite party expressed his inability to refund amount immediately. It clearly goes to show that, the Opposite party intentionally evading to perform his part of contract and even he has not shown an inclination to make repayment of advance amount collected from the Complainant.
10. As looking in to the case, the Opposite party after receiving amount of Rs.6,50,000/- from the Complainant in respect of site bearing No.20 & 375 in the aforesaid project of the Opposite party and he never developed the layout and did not come forward to execute sale deed in favour of Complainant and went on postponing the same on one or other reasons. Ultimately, Complainant got issued legal notice calling upon the Opposite party to refund the amount with interest at the rate of 24% p.a. within 7 days from the date of receipt of the notice. But Opposite party did not respond to the notice which amounts to deficiency of service on the part of Opposite party stands corroborated by the documents No.1 to 6. Therefore, the very act of the Opposite party in selling and allotting sites without obtaining approval from the concerned Government departments, thereby, making delay in executing sale deed in favour of the Complainant and not refunding amount on demand made by the Complainant amounts to negligence and deficiency of service on the part of the Opposite party. Hence, we answer to the point No.1 in the affirmative, in the result for the forgoing reasons we proceed to pass the following.
ORDER
The complaint of the complainant is allowed in part there is a deficiency of service on the part of Opposite party.
- The Opposite party is directed to pay Rs.6,50,000/- to the Complainant within 30 days from the date of receipt of this order failing which Opposite party shall pay Rs.6,50,000/- along with interest at 12% p.a. on the said amount from the date of this order to till the date of realization.
- Further, Opposite party is directed to pay Rs.1,00,000/- for the mental agony and harassment for inordinate delay in registering absolute sale deed in favour of Complainant and handing over possession of the sites.
- Further, the Opposite party is directed to pay Rs.2,000/- towards cost of litigation.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 09th day of September 2016).
MEMBER MEMBER
-:ANNEXURES:-
1. Witness examined on behalf of the complainant by way of affidavit:
Nutan Gupta, who being the complainant was examined.
2. Documents produced on behalf of the complainant:-
1. Receipt issued by the Opposite party bearing No.1913 acknowledging an advance amount of Rs.6,50,000/- dated 29.04.2006
2. Agreement of sale executed by the Opposite party in favour of the Complainant agreeing to sell the site bearing No.20 in the layout known as Dayal Residency and register the same within 3 months from the date of agreement dated 29.04.2006
3. Agreement of sale executed by the Opposite party in favour of the Complainant agreeing to sell the site bearing No.375 in the layout known as Dayal Residency and register the same within 3 months from the date of agreement dated 29.04.2006
4. Copy of the legal notice served on the Opposite party by the Complainant’s advocate dated 08.07.2015
5. Postal receipt dated 08.07.2015
6. Email correspondences dated 05.08.2009, 02.04.2010, 24.03.2010, 15.03.2010, 27.02.2010, 19.02.2010, 18.02.2010, 23.05.2011, 08.11.2011, 28.09.2011, 15.04.2015, 30.11.2014, 28.09.2011, 01.05.2015, 16.04.2015, 23.06.2015, 31.05.2015, 10.05.2015.
MEMBER MEMBER
