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

DATED 23^RD DAY OF FEBRUARY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to refund an amount of Rs.9,36,000/- along with 18% interest from 13.08.2020 till the date of payment along with Rs.2,00,000/- as compensation.
2. Pass such other direction that this Hon’ble Commission deems fit

2. The case set up by the complainant in brief is as under:-

It is the case of the complainant that he had booked two sites No.1511 and 1515 measuring 30 X 40 feet in the project developed by the OP called Max Residency @ Rs.700/- per sq. feet and had agreed for a total consideration of Rs.16,80,000/-.  On 21.02.2011 the complainant had filled the booking form by paying an amount of Rs.10,000/- by way of cheque dated 21.02.2011.

3.       It is further case of the complainant that the OP had informed the complainant that land documents pertaining to the said plots will be handed over to him within few days and he will be informed the same once the layout plan is obtained from BIAPPA.  Since there was no call from the OP1 the complainant himself has visited the OP and enquired in the month of May 2011. At that time the OP has insisted him to change the plots booked earlier and to book the new plot No.1202 and 1203 since the plot No.1511 and 1515 were not available.  The OP has further demanded for additional booking amount of Rs.1,70,000/- and the complainant has paid the amount through cheque on 30.05.2011 towards the purchase of new plots 1203 and Rs.1,10,000/- towards purchase of plot No.1202 on 30.05.2011.

4.       Again the OP has informed the complainant due to some issues the project getting delayed and demanded the complainant to wait for some more time and again called the complainant on April 2012 and demanded for further payment of Rs.1,56,000/- and further agreed to furnish the land documents and all approvals shortly.  The complainant has paid Rs.1,56,000/- by way of cheque on 09.04.2012  as further advance amount and the complainant has totally paid Rs.3,36,000/- to the OP.

5.       The OP has assured the complainant that said project will be completed within a period of six months or in case of failure on the part of this OP he will refund the amount with interest of 12% p.a., even after lapse of the said period the OP has not handed over the title documents nor layout plan approval. The OP has not kept their promises and they are giving untenable reasons for delay in handing over the plot or the registration of the plots.

6.       The complainant with his family members had visited the project in the month of January 2020 wherein they found that there was no development work as stated or assured by the OP after that he had demanded for refund of the amount with 12% of interest.  For the demand made by the complainant the OP had come up with another offer that they will provide plots in the same project called Max Residency IV which is DC converted plots instead of BIAPPA approved one.  The complainant has agreed for the offer and agreed to purchase only one plot No.217 measuring 30 X 40 feet for Rs.780/- per sq. feet and the total amount of plot is Rs.9,36,000/-. The OP has agreed that they will adjust the amount of Rs.3,36,000/- already paid by the complainant and the complainant has also agreed to pay Rs.6,00,000/- balance amount.  The complainant has also paid the balance amount of Rs.6,00,000/- by way of cheque dated 13.08.2020 and 15.09.2020 and obtained the receipts and thereby the complainant has paid the entire amount of Rs.9,36,000/- for purchase of the plot No.217 in the project called Max Residency IV.

7.       The OP has promised that they will register the plot in his name within two months but they failed to register the same.  Whenever the complainant has tried to approach the OP the OP had given evasive reply and further giving him false information.

8.       The complainant was made to run from piller to post and whenever he approached the OP he received harsh and rude response from the OP. after that the complainant decided to cancel the plot and requested for refund of the amount.  When the OP has failed to refund the amount the complainant has approached this Commission and filed this complaint.

9.       Inspite of service of notice through paper publication, the OP has not appeared before this Commission hence OP placed exparte.

10.     The complainant has filed his affidavit evidence and relies on Ex.P1 to P5 documents.  Heard the arguments of the complainant.

11.     The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

12.   Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

13.   Point No.1 AND 2: Perused the complaint, affidavit evidence and the documents produced by the complainant.

14.   The evidence and the documents filed by the complainant remained unchallenged. Hence there is no reason to disbelieve the evidence and documents of the complainant.

15.   The complainant has booked two flats bearing No.1511 and 1515 both measuring 30 X 40 feet @ Rs.700/- per sq. feet and the total cost of two flats were Rs.16,80,000/- on 21.02.2011 and made a booking amount of Rs.10,000/- through cheque.  The complainant has produced the booking form as document No.1.

16.   The complainant was forced to book another plots No.1202 & 1203 since the plot No.1511 & 1515 were not available as per the instructions of the OP and he was insisted to pay additional booking amount of Rs.1,70,000/- on 30.05.2011 towards flat No.1203 and Rs.1,10,000/- for plot No.1202.  

17.   Again when the OP has failed to allot the plots even after received the amount and as per the assurance of the OP the complainant was made to book another plot bearing No.217 measuring 30 X 40 feet @ Rs.780/- per sq. feet for the total consideration amount of Rs.9,36,000/-.  The complainant has paid the entire sale consideration amount of Rs.9,36,000/-. Inspite of receiving the entire amount the OP failed to allot the plot and to register the same in the name of the complainant and they have made the complainant to run from piller to post.  

18.   The complainant has booked the flat for the first time on 21.02.2011 as per document No.1 after paying Rs.10,000/- booking amount.  Again the OP has changed the plot as per booking form No.2 after receiving Rs.1,70,000/- on 30.05.2011.  When the OP failed to allot the plots again the OP has insisted the complainant to book another plot No.217 as per document No.3 after collecting Rs.9,36,000/- on 08.08.2020.  The complainant as per the assurance given by the OP went on changing the plot numbers and area and also paying the additional consideration amount, amounting to Rs.9,36,000/- from February 2011 till august 2020.  The complainant has also produced the shifting form or transfer of plots issued by the OP with cheque for having received the amount from the complainant as per document No.4.  

19.   The complainant has contacted the OP in person and by way of email communications and he has produced the bunch of email communication as document No.5. when the OP has failed to allot any plot in the name of the complainant even after received the entire sale consideration amount of Rs.9,36,000/-. The complainant was forced to approach this commission by filing this complaint.

20.     It is the duty of the OP to allot the plots after received the entire sale consideration amount from the complainant.  The OP instead of forming the layout and allot the plots has simply dragged the allotment for one or the other reason for more than 12 years. The OP has neither allot the plot nor refunded the amount and thereby committed deficiency of service and unfair trade practice.  Under these circumstances the complainant is entitled for the relief claimed in this complaint. Hence we answer point No.1 in affirmative and Point No.2 partly in affirmative.

21.    Point No.3:- In view the discussion referred above, the OP is directed to refund Rs.9,36,000/- with interest at 9% p.a., from the date of respective payments till realization and further directed to pay the compensation of Rs.1,00,000/- towards mental agony and deficiency of service and fraud and unfair trade practice and the complainant is entitle for litigation expenses of Rs.10,000/-. Hence we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.9,36,000/- with interest at 9% p.a., from the date of respective payment till realization and further directed to pay Rs.1,00,000/- towards mental agony and deficiency of service along with litigation expenses of Rs.10,000/-.
3. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 10% p.a. after expiry of 60 days on Rs.9,36,000/- till final payment.
4. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 23^rd day of FEBRUARY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party;

NIL