m/s Ittina Properties Private Ltd. V/S arun kumar - Consumer Court Case

Karnataka

Bangalore Urban

CC/08/2334

arun kumar - Complainant(s)

Versus

m/s Ittina Properties Private Ltd. - Opp.Party(s)

in person

19 Dec 2008

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/08/2334

arun kumar						...........Appellant(s)
Vs.
m/s Ittina Properties Private Ltd.						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 30.10.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 19th DECEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2334/2008 COMPLAINANT P. Arun Kumar, Flat No. 014, Cedar Block, THE GREENS, Next to Alpine Eco, Doddanakundihalli, Marathahalli-KR Puram Outer Ring Road, Bangalore 560 037. V/s. OPPOSITE PARTY M/s. Ittina Properties Private Ltd., No. 1054, 7th Main, 3rd Block, Koramangala, Bangalore 560 034. Represented by its Managing Director Mr. I. Mahabaleshwarappa. Advocate (Chandrashekar. R) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to refund Rs.1,10,000/- paid towards booking of a flat and pay a compensation on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being lured away with the advertisement and propaganda issued by the OP, who claims to be the builders and developers of the multistoryed residential flats in and around Bangalore, thought of purchasing a flat from the project floated by the OP. In that regard he paid Rs.10,000/- on 12.05.2008 and Rs.1,00,000/- on 21.06.2008 towards the part payment of the cost of the said flat. Though OP agreed to complete the said project well within the reasonable time, but it has failed to keep up its promise. The other intending purchasers who have invested around Rs.40 to Rs.42 lakhs were still waiting for possession of their flat since last two years. Under the circumstances complainant felt that OP is not going to complete the said project in time, hence he stopped making further payment, thereafter addressed a letter to the OP to cancel the booking and refund the whatever the amount that he has paid. Surprisingly OP deducted 30% of the booking charges without any sound basis or reason. The repeated requests and demands made by the complainant to refund the entire amount, went in vain. Thus complainant felt the deficiency in service on the part of the OP. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant booked a flat No. D-323 for a total cost of Rs.36,00,000/- on 10.05.2008. He was expected to pay the cost of the flat as per the schedule of payment, but he became the defaulter. There is a clause mentioned in the booking form that in case of default of payment OP has a right to retain 30% of the amount paid and refund the rest of the amount. Invoking the said clause OP has deducted 30% of the amount that is paid and issued the cancellation letter dated 10.07.2008. That act of the OP cannot be termed as deficiency in service. Complainant though aware of the said fact kept mum for more than 15 months and later on filed this frivolous complaint. The approach of the complainant is not fair and honest. There is no deficiency in service on the part of the OP. Hence they are not liable to refund the said amount. Among these grounds, OP prayed for the dismissal of the complaint. 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant booked a flat No. D-323 in the project floated by the OP in the name and style Ittina Abha, the total cost of the flat being Rs.36,00,000/-. The said booking is made on 10.05.2008. It is also not at dispute that complainant made part payment of Rs.1,10,000/-. Now the grievance of the complainant is that though he made the substantial payment, there were no developmental activities at all and OP failed to complete the said project well within the reasonable time as promised. As he felt that OP is going to cause undue delay in handing over of the possession of the flat, he stopped making further payment of the instalment as per the schedule of payment and sought for the cancellation of the booking and refund of whatever the amount that is paid. According to the complainant OP refused to heed to his demand, hence complainant felt the deficiency in service. 7. As against this it is contended by the OP that in the booking form and as per the agreement to sale in the event of cancellation of the booking in the middle of the project OP retained the right of deduction of 30% of the amount whatever that is paid, that is why they have cancelled the booking on 10.07.2008 and deducted 30% of the amount paid and they are ready and willing to refund the remaining amount. They have acted in accordance of the terms and conditions of the agreement, hence there is no deficiency in service on their part. On the perusal of the documents produced by the OP no such relevant document is produced by the OP to substantiate that he completed the project Ittina Abha well within the reasonable time and the so called flats are ready for occupation. He has also not produced any clearance certificate issued by the statutory authority to handover the possession of the said flat or that their construction has been approved by the concerned authority. So in absence of production of such proof and documents, we find there is a force in the contention of the complainant that OP made undue delay in completion of the said project evenafter the receipt of substantial amount. When that is so, arbitrarily invoking some stray conditions under the sale agreement and deducting 30% of the amount paid is unjust and improper and it is a classic example of deficiency in service. 8. OP having retained the said huge amount without refunding the same evenafter the cancellation of the booking accrued the wrongful gain to itself, thereby caused the wrongful loss to the complainant, that too for no fault of his. Though their letter of cancellation of the booking discloses that they will forward the refund cheque within 45 days from 10.07.2008, so far so good no such steps are taken to show their bonafides. So the defence set out by the OP appears to be defence for defence sake. Complainant though invested his hard earned money, he is unable to reap the fruits of his investment. On the other hand OP having retained the said huge amount illegally enriched himself. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. In view of the reasons narrated by us in the above said paras, we are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. Under such circumstances he is entitled for relief to some extent. Accordingly we answer point nos.1 and 2 and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to refund Rs.1,10,000/- and pay a litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 weeks from the date of its communication. Failing in which complainant is entitled to claim an interest at the rate of 9% p.a. on Rs.1,10,000/- from 10.07.2008 till realization along with a litigation cost. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 19th day of December 2008.) MEMBER MEMBER PRESIDENT p.n.g.

COMPLAINT FILED: 30.10.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 19th DECEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2334/2008 COMPLAINANT P. Arun Kumar, Flat No. 014, Cedar Block, THE GREENS, Next to Alpine Eco, Doddanakundihalli, Marathahalli-KR Puram Outer Ring Road, Bangalore 560 037. V/s. OPPOSITE PARTY M/s. Ittina Properties Private Ltd., No. 1054, 7th Main, 3rd Block, Koramangala, Bangalore 560 034. Represented by its Managing Director Mr. I. Mahabaleshwarappa. Advocate (Chandrashekar. R) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to refund Rs.1,10,000/- paid towards booking of a flat and pay a compensation on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being lured away with the advertisement and propaganda issued by the OP, who claims to be the builders and developers of the multistoryed residential flats in and around Bangalore, thought of purchasing a flat from the project floated by the OP. In that regard he paid Rs.10,000/- on 12.05.2008 and Rs.1,00,000/- on 21.06.2008 towards the part payment of the cost of the said flat. Though OP agreed to complete the said project well within the reasonable time, but it has failed to keep up its promise. The other intending purchasers who have invested around Rs.40 to Rs.42 lakhs were still waiting for possession of their flat since last two years. Under the circumstances complainant felt that OP is not going to complete the said project in time, hence he stopped making further payment, thereafter addressed a letter to the OP to cancel the booking and refund the whatever the amount that he has paid. Surprisingly OP deducted 30% of the booking charges without any sound basis or reason. The repeated requests and demands made by the complainant to refund the entire amount, went in vain. Thus complainant felt the deficiency in service on the part of the OP. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant booked a flat No. D-323 for a total cost of Rs.36,00,000/- on 10.05.2008. He was expected to pay the cost of the flat as per the schedule of payment, but he became the defaulter. There is a clause mentioned in the booking form that in case of default of payment OP has a right to retain 30% of the amount paid and refund the rest of the amount. Invoking the said clause OP has deducted 30% of the amount that is paid and issued the cancellation letter dated 10.07.2008. That act of the OP cannot be termed as deficiency in service. Complainant though aware of the said fact kept mum for more than 15 months and later on filed this frivolous complaint. The approach of the complainant is not fair and honest. There is no deficiency in service on the part of the OP. Hence they are not liable to refund the said amount. Among these grounds, OP prayed for the dismissal of the complaint. 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant booked a flat No. D-323 in the project floated by the OP in the name and style Ittina Abha, the total cost of the flat being Rs.36,00,000/-. The said booking is made on 10.05.2008. It is also not at dispute that complainant made part payment of Rs.1,10,000/-. Now the grievance of the complainant is that though he made the substantial payment, there were no developmental activities at all and OP failed to complete the said project well within the reasonable time as promised. As he felt that OP is going to cause undue delay in handing over of the possession of the flat, he stopped making further payment of the instalment as per the schedule of payment and sought for the cancellation of the booking and refund of whatever the amount that is paid. According to the complainant OP refused to heed to his demand, hence complainant felt the deficiency in service. 7. As against this it is contended by the OP that in the booking form and as per the agreement to sale in the event of cancellation of the booking in the middle of the project OP retained the right of deduction of 30% of the amount whatever that is paid, that is why they have cancelled the booking on 10.07.2008 and deducted 30% of the amount paid and they are ready and willing to refund the remaining amount. They have acted in accordance of the terms and conditions of the agreement, hence there is no deficiency in service on their part. On the perusal of the documents produced by the OP no such relevant document is produced by the OP to substantiate that he completed the project Ittina Abha well within the reasonable time and the so called flats are ready for occupation. He has also not produced any clearance certificate issued by the statutory authority to handover the possession of the said flat or that their construction has been approved by the concerned authority. So in absence of production of such proof and documents, we find there is a force in the contention of the complainant that OP made undue delay in completion of the said project evenafter the receipt of substantial amount. When that is so, arbitrarily invoking some stray conditions under the sale agreement and deducting 30% of the amount paid is unjust and improper and it is a classic example of deficiency in service. 8. OP having retained the said huge amount without refunding the same evenafter the cancellation of the booking accrued the wrongful gain to itself, thereby caused the wrongful loss to the complainant, that too for no fault of his. Though their letter of cancellation of the booking discloses that they will forward the refund cheque within 45 days from 10.07.2008, so far so good no such steps are taken to show their bonafides. So the defence set out by the OP appears to be defence for defence sake. Complainant though invested his hard earned money, he is unable to reap the fruits of his investment. On the other hand OP having retained the said huge amount illegally enriched himself. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. In view of the reasons narrated by us in the above said paras, we are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. Under such circumstances he is entitled for relief to some extent. Accordingly we answer point nos.1 and 2 and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to refund Rs.1,10,000/- and pay a litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 weeks from the date of its communication. Failing in which complainant is entitled to claim an interest at the rate of 9% p.a. on Rs.1,10,000/- from 10.07.2008 till realization along with a litigation cost. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 19th day of December 2008.) MEMBER MEMBER PRESIDENT p.n.g.