Complaint filed on:20-09-2023
Disposed on: 28-02-2024
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 28th DAY OF FEBRUARY, 2024
//:PRESENT://
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A., LLB.(Spl)., LADY MEMBER
CONSUMER COMPLAINT NO. 127/2023
Sri. Anandamallappa
S/o Late Chikkamallappa,
Aged about 63 years, R/at No.8,
HIG-KHB, Vasanthanagara, Siragate,
Tumkur Town, Karnataka.
……….Complainant
(By Sri. Sri. Arun Kumar, Advocate)
V/s
M/s Felicity Adobe LL.P
(Formerly known as Tumkur Nivas)
Office at No.5AC-712, 4th Floor,
5th A Cross, HRBR Layout,
1st Block Kalyanagar Post,
Bangalore-43.
Rep. by its Authorized Representative
Sri.Sathish Koshy.
………..Opposite Party/s
(Served – Absent)
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BY SRI. KUMARA .N - MEMBER
This complaint was filed by the complainant against the Opposite Party to direct the OP to pay a sum of Rs.2,07,900-00 to the complainant and award a sum of Rs.50,000-00 towards mental agony and Rs.50,000-00 as damages and other incidental reliefs together with interest @ 15% PA from the date of complaint to till the date of payment together with cost.
2. The case of the complainant is that, the complainant is a retired lecturer and worked at various places of Tumkur District and other neighboring district and having good name and fame in his service. It is submitted that the OP has formed layout and constructed the apartment under the name and style of Swarna Gruha-2, situated at Vasanthanarasapura, Tumkur District and the OP has also published in pamphlet inviting the public to make application and allotment will be made on the basis of lottery. It is submitted that the complainant and his son namely A.C.Harshith have applied for two houses and the complainant has paid sum of Rs.10,000-00 through cheque bearing No.261914, dated:25.07.2018 and another cheque bearing No.161915, for Rs.10,000-00 dated:25.07.2018 (both the cheques are belonged to Corporation Bank, Tumkur branch) and the said amount has been credited to OP’s Account. The complainant further submitted that at the request of OPs, the complainant again paid Rs.30,000-00 on 20.10.2018 and another sum of Rs.40,000-00 on 02.11.2018 and the said amount has been credited to OP’s account. Apart from this payment, the OP received Rs.90,000-00, 90,000-00 and Rs.40,000-00 through cheque initially and subsequently, the OP has received the same by way of cash and returned the cheqeus for the reasons best known to OP and the OP also issued acknowledgment for having received the cash in total and in all the complainant has paid Rs.3,40,000-00 to the OP.
The complainant further contended that when he visited the apartment, he came to know that, the said houses are built with sub-standard materials and not suitable for human dwelling and as such the complainant has cancelled the Apartment for the reason not satisfaction of the house and therefore the complainant requested the OP to return the money and on the request, the OP has paid back a sum of Rs.50,000-00 on 18.12.2020, sum of Rs.36,050-00 and sum of Rs.26,050-00 each dated:11.09.2020 and the OP has also assured the complainant that they will clear the remaining amount of Rs.2,37,900-00. It is further submitted by the complainant in spite of repeated approach and calls, the OP did not refund the remaining amount. Hence, he got issued legal notice, but on receipt of the legal notice, the OP neither replied nor refunded the money. Hence, the complaint.
3. In spite of service of notice, the OP did not appear before this Commission.
4. The complainant has filed his affidavit evidence and marked the documents at Ex.P1 to P14.
5. We have heard the arguments of complainant’s counsel.
6. The points that would arise for determination are as under;
- Whether the complainant proves the deficiency of service on the part of OPs?
- Is complainant entitled to the relief sought for?
- Our findings aforesaid points are as under:
Point No.1: Partly in the Affirmative
Point No.2: As per the final order.
//:REASONS://
Point Nos. (1) and (2):-
8. The complainant argued that the complainant himself and on behalf of his son, totally paid Rs.3,20,000-00 to the OP towards allotment of two houses which was advertised by the OP. After the verification of the constructed house, the complainant came to the conclusion that the OP used sub-standard materials and hence prayed to return the amount paid by the complainant. Accordingly, the OPs paid back Rs.50,000-00 on 18.12.2020 and Rs.36,050-00 and Rs.26,050-00 on 11.09.2020. The complainant submitted that the OP has to pay remaining amount of Rs.2,07,900-00, but so far, the OP not returned. Hence, the complainant prays to allow the complaint.
9. The complainant produced the documents to prove his case which are Ex.P1/Legal notice dated:10.04.2023, Postal acknowledgment and acknowledgment dues i.e. Ex.P2, P3 and P4. Ex.P5 is the sealed postal cover addressed to OP and Ex.P6 is the acknowledgment due, Ex.P7 is the OP’s house advertisement pamphlet, Ex.P8 is the copy of cheque bearing Nos.261914 and 261915 for Rs.10,000/- each, Ex.P9 is also the copy of cheque bearing No.973008 and 261916 for Rs.90,000-00 each, Ex.P10 is the cheque bearing No.948620, 948618 and 948619 for Rs.40,000/-, 30,000/- and 30,000/- respectively, Ex.P11 is the copy of the request letter to cancel the house by the complainant, Ex.P12 is the copy of the acknowledgment No.684, Ex.P13 is the copy of the acknowledgment bearing No.683 and Ex.P14 is also the copy of acknowledgment.
10. The complainant submitted that on 25.07.2018,paid Rs.20,000-00 to the OP through cheque bearing No.261914 and 261915 and further the complainant submitted that a sum of Rs.30,000/- paid through cheque bearing No.948619 on 20.10.2018 and Rs.40,000/- paid on 02.11.2018 through cheque No.948620 dated:02.11.2018. The complainant further submitted that Rs.90,000/- and Rs.90,000/- paid initially through cheque and subsequently, the OP has received the same by way of cash and returned the cheque and further submitted that the complainant paid Rs.20,000/- through cheque bearing No.948625 and 948626 i.e. Rs.10,000/- each. Accordingly, the complainant submitted that totally he has paid Rs.3,20,000/- to the OP.
11. On perusal of the documents produced by the complainant i.e. Ex.P12 and P13 which stated that, we received registration fee along with registration and service fee of Rs.200/- and booking amount of Rs.10,000-00 through cheque along with cheque number, accordingly the complainant on 27.07.2018 through cheqeus bearing Nos.261914 and 161915 for Rs.10,000.00 and Rs.10,000.00 transferred to the OP bank account which pertain to complainant and his son Harshitha A.C. booking amount. The complainant further on 26.10.2018 through cheque No.00948618 and oo0948619 transferred Rs.30,000-00 and Rs.30,000-00 and on 05.11.2018 through cheque Nos.948620 for Rs.40,000.00 and on 19.12.2018 through cheque No.948625, 948626 Rs.10,000.00 and Rs.10,000.00, transferred to the OP bank account. It is clear that the complainant paid Rs.1,20,000.00 to the OP. It is clear from the Ex.P11 that the complainant submitted application to the OP to cancel the apartment allotted to the complainant which is apartment No.2 measuring an extent of 45.05 Sq.mtrs. which was acknowledged by the OP on 04.09.2019, in turn the OP on 11.09.2020 and 08.12.2020 returned/repaid Rs.36,050.00, Rs.26,050.00 and Rs.50,000.00 to the complainant bank account. The complainant totally paid Rs.1,40,000-00 to the OP, out of which, Rs.10,000.00 and Rs.10,000.00 which was towards booking amount of the complainant and his son Harshitha A.C. The complainant further submitted that the OP received Rs.90,000.00 and Rs.90,000.00 cash from the complainant, but the complainant not produced believable evidence to paid the amount to the OP. RERA (Real Estate Regulation and Development) Act, 2016, the RERA empowers the homebuyer to cancel an allotment of the apartment booked with a builder at any stage even if there is no default on the part of the developer. It binds the builder to return the money collected from the buyers within 45 days of such cancellation after deducting the booking amount. The booking amount shall be forfeited by the developer. In the instant case, the developer i.e. the OP by deducting i.e. booking amount paid by the complainant Rs.10,000.00 forfeited booking amount and repaid the balance total amount of Rs.1,12,100.00. But the complainant totally paid Rs.1,20,000.00 to the OP. The OP is to pay balance amount of Rs.7,900.00 along with interest to the complainant. The complainant served legal notice to repay the amount paid by the complainant, but the OP not reacted even in spite of this Commission notice served which leads to deficiency on service on the part of OP. The OP compelled the complainant to approach this Commission. Hence, the OP is liable to compensation of Rs.5,000.00 and litigation expenses of Rs.6,000.00 to the complainant. Accordingly, we pass the following:-
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The complaint filed by the complainant is allowed in part with costs.
The OP is directed to pay Rs.7,900.00 to the complainant along with interest @ 9% PA from the date of filing of this complaint to till realization.
The OP is further directed to pay compensation of Rs.5,000.00 and litigation expenses of Rs.6,000.00 to the complainant.
Further, the OP is directed to comply the above order within 45 days from the date of receipt/knowledge of the order.
Supply free copy of this order to both parties.
