BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

08^TH DAY OF JANUARY 2016

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 seeking direction against Opposite Parties (herein after referred as OPs) to refund a sum of Rs.7,85,000/- along with interest at 18% per annum and compensation of Rs.1,00,000/- towards mental agony and cost on the allegation of deficiency in service.

2.  The brief averments made in the complaint are as follows:

Attracted by the colourful advertisement made by the OP-1 in the month of September 2008 that they were forming a layout at Bethangeri Village, Mysore Road, all approvals/permissions and sanctions from statutory authorities are obtained including land conversion and layout approval from BMICPPA and the project would be completed within 15 months, complainant booked Plot No.190 measuring 30 x 50 Feet in the Bethangere project, in their proposed Sneha Nagara Layout for a total consideration of Rs.7,92,000/-.  Further OP said that total cost of ownership of the plot includes additional charges like stamp duty, registration charges, khata transfer etc., would be Rs.8,67,900/-.

Upon the assurances of OP, complainant forwarded two cheques for a sum of Rs.50,000/- each in favour of OP-1 under  cover of her letter dated 24.09.2008.  As there is a mistake in the date mentioned on the said cheque complainant issued a fresh cheque in lieu of the same and also affected payment of two installments of 7,500/- amounting in all Rs.1,15,000/-. OP vide its statement dated 04.09.2009 acknowledged the receipt of Rs.1,15,000/- and the balance consideration payable was Rs.6,77,000/-.  OP vide its communication dated 23.09.2009 waived the 10% premium for corner site and forwarded the revised statement dated 24.09.2009.  However, subsequently OP did not consider the waiver.  OP-1 promised the speedy execution of the project, but there was no actual progress at all on the ground.  OP itself admitted the fact of delay in its letter dated 22.04.2009 and 24.04.2009.  Inspite of slow progress of the project OPs demanded the EMIs as per original understanding.  OPs required payment of Rs.1,73,000/- within 3 months and the balance to be paid in EMIs and stamp duty of Rs.53,700/-  and registration charges of Rs.7,950/-, scanning and other charges of Rs.8,250/-, village panchayat khata transfer fee of Rs.6,000/- are also required to be paid by the complainant.  Believing the representation of the OP to be bonafide complainant made the payments promptly as demanded by OP. On 10.08.2011 complainant paid total sum amounting to Rs.7,90,000/- as agreed which is inclusive of stamp and registration fee and other expenses.  Complainant is in possession of all the receipt issued by OP.  Inspite of receiving the entire sale consideration, stamp duty and registration charges, the project implementation was slow nowhere near completion.  When the complainant demanded to know the reasons for the delay, OP repeated the same old reasons such as Government withholding land conversion, delay is due to actions of BMICPPA etc.  OPs assured that they were carrying out asphalting underground cable work etc., and conversion process would be completed latest by June 2012 and confirmed the same vide their letter dated 10.04.2012.  OP informed that plot allotted to her was changed from No.190 to No.168 and even by October-2014 the project was incomplete.  Hence, the complainant totally frustrated and requested the OPs to refund the amount paid by her.  There was no response from OPs.  Left with no alternative complainant got issued legal notice dated 11.09.2014 calling upon OP to refund the sum of Rs.7,80,000/- along with interest at 18% per annum within 7 days failing which she will be compelled to take both civil and criminal action for recovery of the amount.  Inspite of service of legal notice OP neither gave any reply to the notice nor refunded the amount.  Hence, complainant felt deficiency in service against OP.  Under the circumstances, she is advised to file this complaint against OPs for appropriate relief.

3.  After registration of the complaint, notice was issued to             OP 1 & 2. Inspite of service of notice OP-1 remained absent.  Hence OP-1 is placed exparte. The Manager of OP-2 Mr.Vasudevan.R., though appeared, failed to contest the matter by filing version or affidavit evidence.  Hence OPs are placed exparte and posted the case for filing affidavit of the complainant.

4. So as to prove her case, one Sri.M.A.David, the power of Attorney holder of the complainant has filed his affidavit evidence in support of the complaint reiterating the complaint averments and also submitted copy of the power of Attorney along with 18 other documents.  Complainant also filed written submission.

5. The above said assertions of the complainant have 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 sworn testimony of the complainant.

6.  Let us have a cursory glance at the documents produced by the complainant. Document No.1 is copy of power of attorney executed by complainant in favour of Mr.M.A.David dated 18.10.2014.  Document no.2 is copy of the proposed layout plan.  Document No.3 & 4 are copies of the project specification.  Document No.5 & 6 are copies of the letters of the complainant to OP dated 24.09.2008, 27.09.2008.  Document No.7 is copy of the statement issued by OP.   Document No.8 & 9 are also copies of the letter of OP to the complainant waiving 10% premium for a corner site.  Document No.10 & 11 are also copies of the letters written by complainant to OP dated 09.07.2010.  Document No.12 to 15 are copies of the letters of complainant to OP dated 22.04.2009, 24.04.2009, 31.12.2009  Document No.16 is copy of the letter of OP to complainant dated 02.07.2010, 3.11.2010, 23.12.2010 providing unique customer ID and password.  Document No.17 is copy of the letter of the OP to complainant dated 23.12.2010 stating the development work of the first phase of the project will be completing by February-2011 and Bethnageri project by April 2011 once the conversion process is completed then they will take development of the second phase.   Document No.18 is the copy of receipt issued by OP to the complainant dated 10.08.2011 for a sum of Rs.3,01,000/-.  Document No.19 is copy of the account extract of the complainant for the period 01.04.2008 to 06.08.2011 which shows payment of Rs.4,41,000/- to OP by way of cheque on different dates.  Document No.20 is copy of the receipt issued by Sales Manager of OP to the complainant for having receiving Rs.70,000/- by way of cash towards registration expenses at Ramanagaram.  Document No.21 is copy of the letter of OP to the complainant dated 12.04.2012 stating the approval process will be over within next three weeks thereafter the papers will go to DC Ramanagaram for the conversion process and same will be completed by June-2012. Document No.22 is copy of the legal notice dated 11.09.2014 got issued by complainant to OP calling upon OP to refund Rs.7,85,000/-along with interest at 18% per annum within seven days failing which complainant will be compelled to take legal action.  Document No.23. is copy of the Postal receipts and served acknowledgement card.  Document No.24 is copy of e-mail communication sent from OP to complainant dated 06.11.2014 stating the final plan approval was scheduled on 22.09.2014 and subsequently rescheduled for 20.10.2014.  However on both the occasions meetings were postponed following the instructions from the Chief Minister’s Office seeking sorry for the delay which is beyond the control of the OP and office of the OP is shifted to Basavanagudi, Bangalore. 

7. On perusal of oral and documentary evidence of the complainant, it is made crystal clear that the complainant paid a sum of Rs.3,01,000/- on 10.08.2011 and Rs.4,14,000/- in instalments on different dates starting from 01.04.2008 to 06.08.2011 and Rs.70,000/- on 10.08.2011 towards registration expenses totally amounting to Rs.7,85,000/- to OP towards purchase of plot No.190 measuring 30 x 50 feet situated at Bethangere project in the proposed sneha  Nagar  layout of the OP.  OP has issued the receipts acknowledging receipt of the amount and also as per the account extract of the complainant maintained by OP as per Document No.7, 18 to 20.  As per the correspondence produced by the complainant as per the Document No.12 to 17 & 21 OP has failed to obtain land conversion order and layout sanction plan till 20.10.2014.  Hence, complainant sought for refund of amount paid.  There was no response.  Hence complainant got issued legal notice dated 11.09.2014 calling upon OPs to refund Rs.7,80,000/- along with interest at 18% per annum within 7 days failing which complainant will approach the appropriate court of law for recovery of the amount.  Inspite of service of notice OP neither give reply to the notice nor refund the amount.  Hence this complaint.

8. From the available material on record we are satisfied that OPs having received a sum of Rs.7,85,000/- from the complainant from the year 2008 to 2011, till date neither formed the layout a register the plot nor refund the amount to the complainant.  Retention of amount inspite of service of legal notice amounts to deficiency in service on the part of the OP.  We are satisfied that complainant proved deficiency in service against OPs.  Under the circumstances we are of the considered view that OPs are liable to refund Rs.7,85,000/- to the complainant  along with interest at 18% per annum from the date of respective payments till realization along with compensation of Rs.50,000/- towards mental agony and  hardship caused to the complainant together with litigation cost of Rs.3,000/-.  Hence, the complaint of the complainant is partly sustainable.   Accordingly, we proceed to pass the following:

                                  O R D E R

1. The complaint filed by complainant is partly allowed. 

2. OP 1 & 2 are jointly and severally shall pay a sum of Rs.7,85,000/- to the complainant along with interest at 18% per annum from the date of respective payments till realization.

3.  OP 1 & 2 are jointly and severally shall pay compensation of Rs.50,000/- towards mental agony and hardship caused to the complainant.
4. Further OPs are directed to pay litigation cost of Rs.3,000/- to the complainant.

5. This order shall be complied within 30 days from the date of receipt of this order.

6. Supply free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 8^th day of January 2016)

 MEMBER                           MEMBER                        PRESIDENT

NRS* 

C.C.No.858/2015

Witnesses examined on behalf of the complainant dated 29.10.2015

1. Sri.M.A.David, GPA Holder of complainant.

Witnesses examined on behalf of the OPs – Absent

List of documents produced by the OPs - Nil

MEMBER                           MEMBER                        PRESIDENT

NRS*