O R D E R
SRI.D. KRISHNAPPA, PRESIDENT:
These are two complaints filed by different complainants against same ops with similar allegations and for similar reliefs are therefore taken up together for disposal by a common order in order to avoid repetition of facts.
The brief facts of the complaints are that the first and second Ops are a company indulged in formation of layout and selling of sites. That the first Op is represented by its Managing Director, the second Op is represented by its Sole Proprietor, third Op is the Managing Director of first Op and 4th Op is a Director of first Op. Influenced by the advertisement and offers made by the Ops in the formation of layout called Granity European Township at old Madras Road, K.R. Puram, Bangalore, the first complainant booked plot No.849 where as the second complainant booked plot No.843, 844, 847 and 848 in that proposed town ship at a total cost of the plot Rs.14,28,000/- for each plot. The first complainant in three installments paid a total advance payment of Rs.3,50,000/-, whereas second complainant paid advance amount totaling to Rs.14,28,000/- on different dates as detailed in the complaint. That the second Op has acknowledged those payments and entered into two separate agreement of sale in favour of these complainants on the same date on 26/09/2008 acknowledging the receipt of the above payments and the Ops had agreed to complete the developmental works of the layout within 12 months from the date of signing of the agreement and they had also agreed, in the event of first Op failing to obtain necessary approval from BDA within the above mentioned period he had agreed to repay the entire amount paid along with interest @ 12% p.a. Ops had also promised that work will be completed and the plots will be made available to them. Thereafter, they approached Ops several times to know the progress of the layout but they did not notice any developments in formation of the layout. Then the first complainant sent e-mails to second Op on 14/09/2008 seeking copies of certain documents pertaining to the plot booked but received no response. Then the second complainant visited the office of the second Op on several occasions sent e-mails on 14/09/2008 again on 27/07/2009 then in the middle of March 2009. But they received no response from the Ops. The complainants have further contended that finding no response from the Ops and no progress in the formation of layout, filed a police complaint in Ramamurthy Nagar Police Station complaining breach of trust, fraud and cheating by the Ops. Then a case was registered against the Ops. Then the second Op as the Managing Director of the first Op initiated criminal petition before the Hon’be High Court of Karnataka to quash the FIR admitting his liability to them. The second Op had agreed to refund the advance amount paid by them. Based on the affidavit of the second Op, the Hon’ble High Court granted time for the first Op to refund the complainant’s money in 4 installments starting from first September but the first Op again moved the Hon’ble High Court for extension of time and time was extended on 16/11/2009 granting another 4 months time, but even then, Ops have failed to comply the direction of the Hon’ble High Court and thereby complainants attributing deficiency to the Ops have prayed for a direction to the Ops to refund their advance money with interest, compensation and other expenditure amounting to Rs.8,20,207/- in the first complaint and Rs.19,99,381/- in the second complaint.
2. Notices ordered against the Ops on these complaints are returned with a shara as Ops No.1 and 2 ‘left the addresses’ and returned notices of Op No.3 and 4 as ‘not claimed’. Considering the report of the postal authority in respect of Op No.3 and 4, notices deemed to have been served on them, they were called out, remained absent are set-exparte. Again notice against Op No.2 was ordered through substituted service and the same has been published in ‘Sanjevani’ daily Kannada News Paper duly and second Op when failed to appear on the date notified, service was held as sufficient, he remained absent is set ex-parte. Op No.1 is the company represented by its Managing Director who is none other than Op No.3. Since Op No.3 has been taken as duly served it was felt that there was no need for sending notice to Op No.1 again. With this complaint was posted for complainants affidavits.
3. In the course of enquiry into these complaints, the first complainant has filed his affidavit evidence, the first complainant is the power of attorney holder of the second complaint has filed his affidavit evidence in the second complaint. In these affidavit evidences, the complainants have re-produced the contents of the complaints. The complainants along with the complaints have produced copy of booking application, copy of agreement of sale, then copies of receipts for having paid advance amount to second Op, with copies of order passed by the Hon’ble High Court of Karnataka on a Criminal Petition filed by the Managing Director of the first Op. We have heard the counsel for the complainants and perused the records.
4. On perusal of the complainants allegation, copies of payment receipts, affidavit evidences and agreements of sale, they discloses that the Ops collectively proposed to float a layout and offered plots to these complainants at Rs.14,28,000/- per plot and in the agreement of the first compliant, the second Op received a total consideration of Rs.3,50,000/-, leaving the balance of Rs.10,78,000/-. In the second complaint, the Managing Director of the first Op proved to have received a total consideration amounting to Rs.14,28,000/- leaving the balance of Rs.42,84,000/-. It is further found from these agreements the Ops had assured the complainants that developmental works will be completed in the layout within 12 months form the date of signing the agreement. The third Op further agreed in the event of failing to obtain necessary approval from BDA within the period of 12 months he shall refund the entire amount paid by these complainants with interest @ 12% p.a. The complainants have stated that despite approaching the Ops several times, addressing letters, they did not respond positively to offer documents pertaining to formation of layout and sites and they also did not see any progress at the spot in the formation of layout and thereby have stated that the Ops have failed to keep up their promise and in a way have cheated them by not providing plots and in not refunding their monies.
4. The counsel for the complainants invited our attention to the order passed by Hon’ble High Court in Criminal Petition No.388/09 dated 17/08/2009, this petition was filed by the Managing Director of the first Op to quash Criminal complaint registered by Ramamurthy Nagar Police on the complaints filed by these complainants. In that proceeding, it is found that this Managing Director, Ashfak Ahmed filed an affidavit admitting his liability agreeing to discharge his liability due to the complainants and even requested the Hon’ble High Court to grant him some time to re-pay the complainants money in installments. The Hon’ble High Court on the basis of affidavit found to had given time to repay the complainants money in 4 installments at the first instants and thereafter as stated by the complainants, the said Managing Director even sought extension of time by 4 weeks to comply the order of the Hon’ble High Court but even then he has not kept up his assurance and the direction given by the Hon’ble High Court. All these uncontroverted facts prove that the Ops who had all jointly and severally promised to provide plots to these complainants and received part of the sale consideration have failed to provide them reliefs. Thus Ops thereby have caused deficiency in their service, as such are liable to refund the complainants money with interest.
5. The complainants in addition to refund of money paid by them with interest have sought for awarding expenses incurred by them for having traveled from Chennai to Bangalore to prosecute these complaints with compensation for mental agony and other expenditure. The forums are empowered to award damages for deficient service of the Ops with damages for mental agony etc., but cannot award travel expenses as claimed by the complainants. Having regard to the facts and circumstances of these cases, we are of view that the Ops since after receipt of substantial money remained silent in not responding to the calls of the complainants are to be charged with punitive damages as deterrent as a deter against Ops from indulging in such activities henceforth. With this, we pass the following order.
O R D E R
Complaints are allowed.
Ops 1 to 4 are jointly and severally held as deficient and are directed to refund Rs.3,50,000/- to the first complainant with interest @ 12% from the date of respective payments till the date of payment and they shall pay that amount with interest within 60 days from the date of receipt of this order. Failing which they shall pay interest @ 15% p.a from the date of this order till the date of payment.
Ops 1 to 4 are jointly and severally held as deficient and are directed to refund Rs.14,28,000/- to the second complainant with interest @ 12% from the date of respective payments till the date of payment and they shall pay that amount with interest within 60 days from the date of receipt of this order. Failing which they shall pay interest @ 15% p.a from the date of this order till the date of payment.
Ops 1 to 4 are jointly and severally are directed to pay Rs.25,000/- each to each of these complainants towards hardship, mental agony and uncertainty within 60 days from the date of receipt of this order. Failing which, they shall pay interest @ 15% p.a from the date of receipt of this order till the date of payment.
Ops shall also pay cost of Rs.5,000/- each to each of these complainants.
Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 3rd December 2010.
MEMBER MEMBER PRESIDENT
