ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     These are the complaints i.e. CC.No.1729/2017, CC.No.1730/2017, CC.No.1731/2017 and CC.No.1732/2017 CC.No.1852/2017, CC.No. 1853/2017, CC.No.1854/2017, CC.No.1855/2017, CC.No.1856/2017, CC.No. 1857/2017, CC.No.1858/2017, CC.No.1859/2017 and CC.No.1860/2017 filed U/S 12 of the Consumer Protection Act 1986 against the O.Ps alleging the deficiency in service and prays for orders to direct the O.Ps to refund the amounts paid by the complainants along with interest and cost as shown below:-

2.     Further all these complaints filed against the same O.Ps and all the complainants are sailing in the same boat and hence all these complaints i.e. CC.Nos.1729/2017, CC.No.1730/2017, CC.No.1731/2017 and CC.No.1732/2017 CC.No.1852/2017, CC.No. 1853/2017, CC.No.1854/2017, CC.No.1855/2017, CC.No.1856/2017, CC.No. 1857/2017, CC.No.1858/2017 CC.No.1859/2017 and CC.No.1860/2017 are taken up together for common discussion and all the above complaints clubbed in the CC.No.1729/2017 as this Forum empowered to consolidate the proceedings in order avoid repetition of facts and for the sake of convenience. 

3.     The brief facts of the complaints are that complainants with an intention to purchase the plots/flats in the project to be developed by O.Ps and hence all the complainants approached the O.Ps and booked the flats/plots by paying the following amounts to the O.ps on different dates as detailed below:-

All the complainants paid the above said amount to the O.Ps shown in the above table in order to purchase the plot/flat and the O.Ps by acknowledging the receipt of the above said payments issued receipts. Further the complainants and O.Ps also entered into the Memorandum of Understandings. Further the complainants alleged that, the title documents not found to be correct as per the advise of their lawyer and hence sought for clarification. Further the complainants came to know through the newspaper regarding the cheating done by the O.Ps and hence the complainants decided to cancel the booking of the plots/flats and demanded for refund of the amounts paid by them. It is stated that, despite repeated demands made by the complainants but the O.Ps did not refund the amounts and some of the complainants stated that O.Ps even threatened with dire consequences and some of the complainants also filed police complaint before the jurisdictional police and got issued the legal notices, but the O.Ps failed to refund the amounts to the complainants and having no other option all these complaints are filed.

4.     Upon issuance of notices and the notices are returned as addressee left and hence the complainants by filing the application taken the substitute service by way of paper publication.  As per the orders of the Forum the complainants were taken the notice through paper publication but despite the notices through the paper publication O.Ps did not turned to appear before the Forum to answer the claim made by the complainants and hence the O.Ps are placed exparte in the above cases.

5.     In order to substantiate the case of the complainants and all the Complainants have filed their affidavit evidence along with documentary evidence and we heard the arguments.

6.     On the basis of the complaints averments, the following points will arise for our consideration is:-

                (A)   Whether the complainants have proved

                         deficiency in service on the part of the O.Ps?

(B)   Whether the complainants are entitled to

       the relief prayed for in the complaint?

(C)   What order?

7.     Our answers to the above points are:-

POINT (A) & (B):      In the affirmative.

POINT (C):       As per the final order

for the following:

REASONS

POINT No. (A) & (B):-

8.     On perusing the complaints averments and the evidence placed on record, it is the specific case of the complainants that they intended to purchase the plots/flats  from the O.Ps  and thereon the complainants approached the O.Ps and entered into Memorandum of Understanding and also paid booking amounts to the O.Ps as detailed below:-

9.     It is the sole allegation of the complainants that the O.Ps have failed to commence the project as promised and there is a flaw in the title deeds as opined by their respective advocate. Further the complainants came to know through newspaper regarding cheating done by the O.ps and hence all the complainants decided to cancel the booking of the flats/plots and demanded for refund of the amounts.  It is alleged that, the O.Ps without refunding the amount threatened the complainants with dire consequences and hence they lodged the police complaint and got issued the legal notice but the O.Ps did not refund the amounts paid by the complainants. 

10.   In order to prove the case of the complainants and the complainants filed their affidavit evidence along with the documentary evidence. On perusal of the affidavit evidence of the complainants and all the complainants reiterated all the facts averred in the complaints in their affidavit. Further on perusal of the receipts issued by the O.Ps and the Memorandum of Understanding as shown below:

11.   All these receipts clearly establishes that, complainants duly paid the above said amounts shown in the above table to the O.Ps and the O.Ps by acknowledging the receipt of the above said payments issued receipts also.  On the perusal of the memorandum of understanding, it is evident that the O.Ps also acknowledged the receipt of the payments made by the complainants in the MOU itself. Further both parties mutually agreed that the MOU  the project will be in force for 24 months or the completion of the project.  Further in case of any delay or default O.Ps undertakes to terminate the MOU and to refund the money paid by the complainants within 90 working days from the date of cancellation with interest at the rate of 8% per annum. Further on perusal of the copy of cancellation form and the legal notices as well as the copy of police complaint and all these documents clearly discloses that the O.Ps did not progress the project  and also complainants found flaw in the legal title deeds of the properties and hence complainants obviously demanded the O.Ps to refund the amount by cancelling the booking.  It is worth to note that, despite service of notice to the O.Ps through paper publications but the O.Ps did not turn to appear before the Forum and failed to answer the claim made by the complainants. Under the circumstances on basis of available evidence on record we reached to conclusion that the O.Ps after taking the huge amounts from the complainants but the O.Ps failed keep up their promises and despite their demand for refund  the O.Ps did not refund the amount as agreed in the Memorandum of Understanding and all these facts clearly shows that O.Ps are not only deficient in their service but also adopted unfair trade practice.  

12.   On the basis of available evidence on record and the non-appearance of the O.Ps and also on perusal of the police complaints, also cancellation forms, the legal notices all these documents evident that the O.Ps failed to develop the project and deliver the possession of the plots/flats well in time as promised by them and just push down the days.  The law will not allow to have a cake and eat it too. The O.Ps by receiving the amount did not deliver the plots/flats as promised and also not refunded the amounts to the complainants.  Hence the O.Ps failed to perform their part of the contract and not yet commenced the project till today. Hence the complainants rightly demanded for refund of the amount but the O.Ps did not yield to the request of the complainants and push down the days without any progress in the project or refunding the amount to the complainants. The act of the O.Ps are highly deplorable one and the service of O.Ps are not only deficient but also adopted the unfair trade practice. It is pertinent to note that despite the paper publication and the O.Ps were remained absent and not answering the legal notice and all the allegations made in the complaints remained unchallenged.

13.   It is pertinent to note that, the housing problems day by day increases particularly in cities like Bengaluru. Further it is the dream of the every middle class people to have his own nest and for which persons like complainants they will invest their hard earned money by borrowing the loan and out of their savings of hard earned money, whereas the O.Ps like builders will take disadvantage of the situation and giving colourful offers in order to entangle the customers to their well designed web and to gain money easily.  On the basis of available evidence on record  and on perusing the Memorandum of Understanding the O.Ps are also quoted the colourful sale consideration in order to entangle the complainants  to their well designed web.  Hence we have no hesitation to hold that O.Ps are not only deficient in their service but also adopted unfair trade practice. Under the circumstances, we are of the opinion that if the complainants invested the amount paid to the O.Ps in any nationalized bank or in any property it will earn more interest. Above all as per undertaken by the O.Ps in the Memorandum of Understanding, they agreed to refund the amount with interest at the rate of 8% per annum within 90 working days but failed to keep up their promise and made the complainants to run from pillar to post and hence complainants not only entitled for the refund of the amount but are also entitled for the higher rate of interest. Therefore, we hereby direct the O.Ps to refund the amounts paid by the complainants along with interest at the rate of 18% per annum from the date of payment till its realization and hence no separate compensation is awarded in view of the award of the interest and further directed to pay Rs.5,000/- to each complaint towards the cost of the proceedings and it will meets the ends of justice. Accordingly, we answered the Point No. (A) and (B) in the affirmative.

POINT No. (C):

14.   On the basis of answering the Points (A) and (B), in the result, we proceed to pass the following:-

ORDER

1. The complaints are hereby allowed with cost.

2. O.P No.1 and 2 are jointly and severally hereby directed to pay the amounts paid by  complainants in the all the complaints along with interest at the rate of 18% per annum from the date of payment till its realization as shown below:-

3.     Further O.P No.1 and 2 are hereby directed to pay a sum of Rs.5,000/- to the each complainants towards cost of the proceedings.

4.      The O.Ps are hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this Forum within 45 days from the date of receipt of this order.
5.       The original copy of this order shall be kept in C.C. No.1729/2017 and the certified copies will be kept in other similar cases i.e. CC.No.1730/2017, CC.No.1731/2017,CC.No.1732/2017,CC.No.1852/2017,CC.No.1853/2017,CC.No.1854/2017,CC.No.1855/2017, CC.No.1856/2017, CC.No.1857/2017, CC.No.1858/2017, CC.No.1859/2017 & CC.No.1860/2017 for reference.

6. Send a copy of this order to both parties free of cost. 

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 21^st  Day of December 2017)

MEMBER                       PRESIDENT

*RAK