CC No: 829/2014

 Filed on 06.05.2014

Disposed on 05.04.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 052

DATED THIS THE 5^th DAY OF APRIL 2016

CONSUMER COMPLAINT NO.829/2014

PRESENT:

Sri. H.S.Ramakrishna,  B.Sc., LL.B.

                                    PRESIDENT

                        Smt. L. Mamatha, B.A., (Law), LL.B.

                        MEMBER

                                                        V/S

ORDER

BY SRI H.S. RAMAKRISHNA, PRESIDENT

1.         This is a complaint filed by the Complainant against the Opposite Parties under Section-12 of the Consumer Protection Act, 1986, praying to pass an order directing the Opposite Party to return the advance amount of Rs.2,00,000/- along with interest at 18% p.a. from the date of receipt i.e. 03.01.2013 and to pay compensation of Rs.50,000/- towards loss and damages, compensation of Rs.30,000/- towards inconvenience and mental agony along with costs of this litigation.

2.         The brief facts of the Complaint can be stated as under:

In the complaint, the Complainant alleged that he applied for a site with the Opposite Party on 03.01.2013 in “Gravity Properties’ Park View Homes” project.  On the same day, the Complainant paid an advance sum of Rs.2 lakhs vide cheque bearing No.209442 dt.03.01.2013.  The Opposite Party gave photo copies of all the documents regarding the project for legal verification.  After going through the legal vetting of the documents, the Complainant came to know that the Opposite Party’s project did not have ‘A’ khatha and also did not pay any betterment charges towards forming of the said layout.  When the Complainant questioned, the Opposite Party representatives about non-disclosure of these facts at the time of submitting the application on 03.01.2013, the Opposite Party did not give convincing reply.  The Complainant got surprised and shocked to receive an email from Opposite Party office dt.15.03.2013 by cancelling the Complainant’s booking of plot No.11 and assured the Complainant to refund the advance amount of Rs.2,00,000/-.  The Complainant personally visited the Opposite Party office and made communication with regard to refund of the amount, but the Opposite Party did not repay the amount even after many months from the date of receipt of the advance amount.  Whenever the Complainant demanded for refund of the money, the Opposite Party postponed the payment by one pretext or the other.  When the Complainant approached the Opposite Party on 09.11.2013 and demanded to repay the amount, the Opposite Party issued a cheque bearing No.867273 dt.15.12.2013 drawn on SBI, Jayanagar 2^nd Block Branch for a sum of Rs.1,00,000/- and one more cheque bearing No.867274 dt.30.01.2014 drawn on State Bank of India, Jayanagar 2^nd Block Branch for a sum of Rs.1,00,000/- to discharge Opposite Party legal liability.  The Complainant accepted the cheques in good faith along with the letter dt.09.11.2013.  As per the instructions of the Opposite Party, the said cheque bearing No.867273 dt.15.12.2013 was presented through the Complainant’s bank account at ICICI Bank, Bangalore, but for the shock and surprise of the Complainant, the said cheques were returned for the reason “insufficient funds”.  Immediately the Complainant contacted the Opposite Party and demanded for payment, but one pretext or the other the Opposite Party postponed the payment.  The Complainant sent a notice dt.15.01.2014 demanding to repay the cash or demand draft, but the Opposite Party did not bother to give any reply or assurance to the Complainant.  As per the direction of the Opposite Party, the cheque bearing No.867274 dt.30.01.2014 was presented to the Complainant’s bank account, the said cheque was returned for the reason “insufficient funds”.  Without alternate, the Complainant issued a legal notice dt.08.02.2014, after receipt of the notice, the Opposite Party neither paid the amount to the Complainant nor complied to the legal notice.  Hence, this complaint.

            3.         In response to the notice, the Opposite Party put their appearance through their counsel and filed version. In the version, the Opposite Party pleaded denied the averments made in the complaint and pleaded that the Complainant has inspected all the documents including BBMP receipts of betterment charges and ‘A’ Khatha certificate and only being satisfied with all the documents of the title and all other requirement, the Complainant agreed to purchase the site.  The Complainant sent an email requesting for cancellation of the booking flat No.11.  There is no deficiency of service either in product or service found in the plots that are being booked by the Complainant in the said project.  As the Opposite Party cancelled the booking of flat No.11 only after receiving the email from the Complainant in which the Complainant requested for cancellation.  Due to requisition to cancel the booking that was made by the Complainant, the Opposite Party was put to loss of profits for an amount of Rs.3 lakhs and also put to loss due to marketing charges incurred to find this new purchaser for the said plot.  The total damage suffered by the Opposite Party is for an amount of Rs.5 lakhs and the Opposite Party had never issued any cheque in favour of the Complainant.  Hence, prays to dismiss the complaint.

4.         In support of the complaint, the complainant has filed his affidavit by way of evidence.  For the Opposite Party one Sri Surya, Chief Executive Officer of the Opposite Party has filed his affidavit by way of evidence.  Heard the arguments of both the parties.

5.         Now the points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties?
2. If so, to what relief the Complainant is entitled?

6.         Our findings on the above points are:-

                        POINT (1):-  Negative

                        POINT (2):-As per the final Order

REASONS

7.         POINT NO. 1:-         It is the case of the Complainant that on 03.01.2013 the Complainant booked a flat bearing No.11 in “Gravity Properties’ Park View Homes”, M.S. Palya, Singapoora Layout of the Opposite Party.  On the same day, he paid an advance of Rs.2 lakhs through cheque bearing No.209442 and the Opposite Party issued a receipt for having the same and also gave photo copies of all the documents regarding the project for the legal verification.  The Opposite Party in their version denied this fact, so the burden is on the Complainant to prove the same.  In order to establish this fact, the Complainant in his sworn testimony reiterated the same and produced the brochure of the Opposite Party.  This brochure is with respect to “Park View Homes”, M.S. Palya, Bangalore and produced the application form.  By looking into this application form bearing No.023 dt.03.01.2013 in the name of the Complainant applied for flat No.11 for a consideration of Rs.57 lakhs.  The built up area is 1500 sq.ft. land also booking process list dt.03.01.2013.  This is with respect to “Park View Homes” flat No.11 for a consideration of Rs.57 lakhs and also it reveals booking amount of Rs.2 lakhs and produced the receipt issued by “Gravity Properties”.  By looking into this document, this receipt bearing No.041 dt.03.01.2003.  Under this receipt, the Opposite Party has received Rs.2,00,000/- vide cheque bearing No.209442 dt.03.01.2013 drawn on ICICI Bank, Koramangala Branch from the Complainant.  This evidence of the Complainant remains unchallenged.  Even though the Opposite Party denied this fact, the Opposite Party has not challenged the evidence of the Complainant.  So there is no contra evidence to discard the testimony of the Complainant, therefore, it is proper to accept the version of the Complainant that the Complainant has booked a flat bearing No.11 in Park View Homes, M.S.Palya, Bangalore of the Opposite Party on 03.01.2013 by paying advance amount of Rs.2 lakhs through cheque bearing No.209442 dt.03.01.2013 of ICIC Bank, Koramangala Branch, Bangalore.

            8.         It is the further case of the Complainant that after going through the legal vetting of the documents, the Complainant came to know that the Opposite Party’s project did not have ‘A’ khatha and also did not pay any betterment charges towards forming of the said layout.  When the Complainant questioned, the Opposite Party representatives about non-disclosure of these facts at the time of submitting the application on 03.01.2013, the Opposite Party did not give convincing reply.  The Complainant got surprised and shocked to receive an email from Opposite Party office dt.15.03.2013 by cancelling the Complainant’s booking of plot No.11 and assured the Complainant to refund the advance amount of Rs.2,00,000/-.  The Opposite Party denied this fact and on the other hand, in the version the Opposite Party has taken a defence that they cancelled the booking on the request of the Complainant.  So the burden is on the Complainant to establish his case that on 15.03.2013 the Opposite Party has cancelled the booking.  To substantiate this fact, the Complainant in his sworn testimony reiterated the same and produced the email correspondences with the Opposite Party.  By looking into this email correspondences, it is very clear that the Opposite Party having furnished the proper legal documents and also cancelled the booking of the Complainant by issuing a letter dt.09.11.2013.  As looking into this letter, it is very clear that after cancelling the booking, the advance amount of Rs.2 lakhs was refunded by issuing a cheque bearing No.867273 and 867274 of Rs.1,00,000/- each drawn on State Bank of India, Jayanagar Branch dt.15.12.2013 and 30.01.2014 respectively.  When the Complainant presented these cheques, the said cheques were dishonoured.  In support of this also the Complainant produced informing that the cheque bearing No.867273 dt.30.12.2013 is returned as “insufficient funds”.  This evidence of the Complainant remains unchallenged.  Even though the Opposite Party denied this fact and take a defence that they have not issued any cheque in favour of the Complainant.  To substantiate their contention, except the interested version of Mr. Surya, Chief Executive Officer, there is no supporting evidence.  Therefore, it is not proper to accept the defence taken by the Opposite Party.  On the other hand, the Complainant by placing relevant evidence, established that on 15.03.2013 the Complainant cancelled the booking of flat No.11 and assured to refund the advance amount of Rs.2 lakhs and towards refund of advance amount of Rs. 2 lakhs, issued two cheques bearing No.867273 and 867274 of Rs.1,00,000/- each drawn on State Bank of India, Jayanagar Branch dt.15.12.2013 and 30.01.2014 respectively in favour of the Complainant.  When the Complainant presented these cheques, it was dishonoured.

            9.         Thereafter, the Complainant repeatedly requested the Opposite Party to refund the advance amount, but till today, the Complainant fails to refund the same.  This amounts to deficiency of service on the part of the Opposite Party since the Opposite Party after receiving the advance amount of Rs.2 lakhs fails to provide better service to the Complainant by giving all the relevant documents for the satisfaction of the Complainant and after cancellation of the booking, the Opposite Party fails to refund the advance amount inspite of demand and request made by the Complainant.  The Opposite Party retained the advance amount willfully.  This amounts to deficiency of service on the part of the Opposite Party.  Hence, this point is held in the affirmative.

10.      POINT NO.2:-          In view of the finding on Point No.1, we proceed to pass the following;

ORDER

The Complaint is allowed holding that there is deficiency of service by the Opposite Party.  The Opposite Party is directed to refund a sum of Rs.2,00,000/- to the Complainant along with interest at 18% p.a. from 03.01.2013, to the date of this Order.  The Opposite Party is further directed to pay a sum of Rs.30,000/- as compensation for the mental agony and Rs.5,000/- towards costs of this litigation to the Complainant.  The Opposite Party is granted 30 days time from this date to comply this Order. Failing which, the aforesaid amount shall carry interest at 18% p.a. from the date of this Order, till the date of realization.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 5^th day of April 2016).

       MEMBER                                                                               PRESIDENT

CC. NO.829/2014

LIST OF WITNESSES AND DOCUMENTS

Witnesses not examined, but affidavit of the witnesses is filed, as follows;

1. Sri K. Sendhil Kumar has filed his affidavit for Complainant.
2. Sri Surya, Chief Executive Officer filed his affidavit for the Opposite Party.

List of documents filed by the Complainant :

1. Copy of the brochure.
2. Copy of the application form.
3. Copy of the booking process list.
4. Copy of the receipt dt.03.01.2013.
5. Copy of the email correspondences.
6. Copy of the letter dt.09.11.2013 with two cheques.
7. Copy of the letter dt.30.12.2013, 15.01.2014.
8. Copy of the legal notice.
9. Copy of the postal acknowledgement and receipt.

List of documents filed by the Opposite Party :

MEMBER                                                                               PRESIDENT