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

 11^th DAY OF NOVEMBER 2021

O R D E R

SMT. P.K.SHANTHA, MEMBER

1. The complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 against the Opposite parties (herein after referred as OPs) with a prayer to direct the OPs to pay full amount of Rs.39,44,900/- (Rupees thirty nine lakhs forty four thousand nine hundred only) without any deduction as the OPs did not adhere to the booking cancellation terms and conditions of the sale agreement date 22.10.2019, direct the OPs to pay the delay compensation and towards capital loss amount of Rs.10,00,000/- (Rupees ten lakhs only), direct the OPs to pay interest upon delay compensation at Rs.18% p.a. till today, direct to Ops to pay mental agony, compensation of Rs.2,00,000/- (Rupees two lakhs only) sustained by him, direct to pay the legal charges initiated because of OPs.
2. The brief averments made in the complaint are as follows:

The OP No.1 is a private limited company and the OP Nos.2, 3 and 4 are directors of OP No.1.

The complainant had booked two sites bearing No.122 and 165 in the project of “The Serenity” on 13.09.2019 duly signed by the director Mr.Santosh Kumar Soni subsequent to that signed agreement of sale dated 22.10.2019 total cost of site No.165 is Rs.39,44,900/- (Rupees thirty nine lakhs fourty four thousand nine hundred only) and the said amount has been paid by complainant as per the cost-breakup in time with the last and final payment done on 02.03.2020.

The complainant states that he has invested on two plots of the project “The Serenity” from the money that complainant sold property owned at Ramanashree California, Bengaluru.  Complainant intention was to save his capital gain out of that sale because of that complainant had invested the sale proceeds by booking two plots at the project by name “The Serenity”.  However, after the complete payment for the two plots, the complainant learnt that he can save his capital gain only if he invests on an immovable residential constructed property.  Therefore, he decided to retain one of the plot No.122 for construction and cancel the booking for other plot No.165.

The complainant immediately sent a mail on 23^rd March, 2020 to the Customer Relationship Manager’s (CRM), Mr.Santhosh Kumar A S’s mail ID

The complainant was in anticipation a response from M/s India Build Property Developers about the cancellation but no response came. After considerable waiting, the complainant sent one more reminder mail on May 25^th the CRM Mr.Santhosh Kumar A.S asking for the status of complainant’s earlier cancellation request.  The CRM Mr.Santhosh Kumar.A.S responded on 30^th of May 2020 stating that “we have processing your booking cancellation request towards your plot No.165 in the Serenity project and amount paid by you will be refunded as per the terms and conditions of sale agreement without any interest within 90 days from the date of receiving cancellation letter/mail”.  But as per our observation the terms and conditions clearly states at para 7.5 of the sale agreement under the sub heading of Cancellation by allottee that promoter shall return the money to allottee within 45 days.  The complainant has already registered the other plot No.122 that complainant had booked and it is the right time for complainant to construct house to over come capital gains payments as well as complainant needs a shelter for himself.  The undue delay by the OPs in refunding the amount is causing damage to complainant financial planning and planned construction activities.  After that he again followed up by sending another mail on September 8^th to the CRM Mr.Santhosh Kumar.A.S. but he did not get any response to the mail. Hence, the complainant sent mail to the Director Mr.Santhosh Kumar Soni to the mail ID rd September, 2020 and subsequent to that sent the same content through RPAD on 26^th September 2020 by addressing it to the Director.  There has been no response from the Director Mr.Santhosh Kumar Soni to the major registered letter till date.  This act of OPs made complainant to approach his counsel for issuing legal notice to OPs and complainant counsel issued legal notice on 10.10.2020 through RPAD and the notice has been served to OPs but till today complainant counsel has not received any reply.

On 21.10.2020 the complainant received a call from the CRM Mr.Santhosh Kumar.A.S who acknowledged receiving the notice.  He further said the company has decided to refund the amount but requested for a month’s time until the 20^th November.  To this, the complainant said he will agree for the time extention request only if the company agrees to refund the entire amount without any deduction as the company did not adhere to any of the terms mentioned in the sale agreement.  The CRM Mr.Santhosh Kumar acknowledged the delay and said that he will discuss with the concerned in his company and get back on the same day evening.  The CRM never reverted back.  The complainant received no further communication from OPs till date.  The delay in returning money and not giving proper answer or a time line for a refund of money has seriously upset the complainant’s financial planning.  The complainant is facing lot of hardships and his plans to avoid capital main.  The  complainant scared that it is almost becoming impossible to construct house in his plot No.122 within the stipulated time line and may end up paying the capital gain tax due the delay in refunding the amount by the OPs.

Due to Ops act complainant disturbed and he is loosing his peace of mind for no fault of his own.  Hence, the complainant felt deficiency at the service of OPs and filed this complaint before this Commission seeking redressal for his grievance.

3. After registration of the complaint, notices were issued to OPs.  Inspite of service of notices, OPs remained absent without sufficient reason and cause, hence OPs placed exparte and the case was posted for filing affidavit evidence of the complainant.
4. In support of complaint averments, Mr.Devadas Vishwanath, the complainant in this case filed his affidavit by way of evidence reiterating the complaint averments along with documents which are marked as Ex.A.1 to Ex.A.8.
5. The sworn testimony of the complainant has remained unchallenged.  OPs neither filed version nor denied the sworn testimony of the complainant.  So, under the circumstances, we have no reasons to disbelieve the circumstances.  Complainant filed written arguments.  Heard.

        6. The points that arises for our consideration are:

  7. Our answer to the above points:

REASONS

      8. Point No.1: We have perused the documents produced by the complainant.  Ex.A.1 is the agreement of sale dated 22.10.2019, Ex.A.2 is the cost breakup of site No.165 along with receipt, Ex.A.3 is the sale deed copy of old residence, Ex.A.4 is the E-mail conversation, Ex.A.5 is the track record of RPAD and E-mail, Ex.A.6 is the legal notice and receipts and Ex.A.7 and Ex.A.8 are the Legal notice and postal receipt.

        9. We have perused the complaint averments, affdiavit evidence and documents produced by the complainant.  From the above documents, it is clear that the OPs are the property owner and developer.  OPs have admitted certain amount has been paid by the complainant towards booking of two plot Nos.122 and 165 by entering into agreement of sale dated 22.10.2019 produced as Ex.A.1, total cost of site No.165 is Rs.39,44,900/- (Rupees thirty nine lakhs fourty four thousand nine hundred only) and the said amount has been paid by the complainant.  The receipts and as per cost breack up in time with list and final payment done on 02.03.2020 produced as Ex.A.2.  The copy of the sale deed of old residence is produced at Ex.A.3.  The complainant invested on two plots of the project name “The Serenity”.  After the complete payment for the two sites, the complainant learnt that he can save his capital gain only if he invests on an immovable residential constructed property.  Therefore, he decided to retain one of the plot No.122 for construction and to cancel the booking for other plot No.165.  The complainant and OPs’ official E-mail correspondence regarding cancellation of the plot No.165 is produced as Ex.A.4.  When there was no response from the OPs to the E-mail or registered letter till date, hence issued legal notice to the OPs on 10.10.2020 through RPAD.  Notice has been served to OPs but till today complainant has not received any reply.

        9. The very fact of OPs not contesting the proceedings leads us to draw an inference that OPs admitting the claim of the complainant. There is no reason to disbelieve the unchallenged affidavit of the complainant and documents produced.  The copmlainant has successfully proved that OPs having collected huge amount of Rs.39,44,000/- (Rupees thirty nine lakhs fourty four thousand only) has failed to return the amount to the complainant amounts to unfair trade practice and deficiency in service.  OPs absolutely have no right to withhold such a huge amount of the complainant.

        10. The said conduct of OPs must have put the complainant to great hardship, inconvenience and mental agony. Hence, we are of the considered view that OPs are directed to refund Rs.39,44,900/- paid by the complainant towards full consideration amount along with interest at 10% by way of compensation.  Further OPs are also directed to pay Rs.5,000/- towards litigation costs. Accordingly, Point No.1 is answered partly in the Affirmative.

        11. Point No.2:  In the result, we pass the following:

ORDER

1. The complaint filed by the complainant u/s.35 of the Consumer Protection Act, 2019 is allowed in part.
2. OPs are jointly and sevrally directed to refund an amount of Rs.39,44,900/- (Rupees thirty nine lakhs fourty four thousand nine hundred only) with interest at 10% p.a. by way of compensation from the date of payment till realization with litigation cost of Rs.5,000/- (Rupees five thousand only) to the complainant.
3. OPs shall comply this order within six weeks from the date of receipt of the order, failing which the complainant is at liberty to take steps as per Law.
4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer and pronounced in the Open Commission on this 11^th day of November, 2021).

List of documents produced by the complainants are marked as Ex.A.1 to Ex.A.8:-