Karnataka

Bangalore 4th Additional

CC/1025/2018

Mr. Kulashekara Sharma S, - Complainant(s)

Versus

M/s TGS E Commerce Pvt Ltd., - Opp.Party(s)

28 Aug 2019

ORDER

Complaint Filed on:21.06.2018

Disposed On:28.08.2019

                                                                              

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

 

 

DATED THIS THE 28^th AUGUST OF 2019

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM – PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

Complaint No.1025/2018

 

 

 

COMPLAINANT	Sri.Kulashekara Sharma S, S/o Sundramurthy, Aged about 40 years, R/o Melenallasandra, Jigani Post, Anekal Taluk, Bengaluru – 562106.   Advocate - Sri.Ganapathi S.Shastri.         V/s
OPPOSITE PARTy	M/s. TGS E-Commerce Pvt. Ltd., (TGS Constructions Pvt Ltd.,) L-142, 5th Avenue, 5th Main Road, 6th Sector, HSR Layout, Bengaluru – 560 102,   Represented by its Managing Director, Mr.Mandeep Kaur.

 

 

ORDER

 

 

 

SMT.N.R.ROOPA, MEMBER

 

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct OP to pay Rs.8,50,000/- together with interest at 18% p.a. from 29.12.2014 till realization, to pay Rs.1,00,000/- towards loss and mental agony suffered and also Rs.10,000/- towards cost of the complaint.

 

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

 

The OP is a builder/developer.  The OP represented by its Managing Director Mrs.Mandeep Kaur.  The OP claims that it has constructed many apartments/flats in Bangalore and its surrounding area.  In the month of October 2014, the OP made an offer to public to invest amount to get flats in their project called “TGS BOSTON” to be constructed in site No.A3, situated at Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk.  Pursuant to the said offer in the month of October 2014, the complainant contacted the OP.  The complainant was told that the said apartment building will be constructed in the said site.  The complainant was also told that the said apartment building will be completed within 20 months and that the total sale price of 2 BHK flat was Rs.17,00,000/- including all facilities.  The complainant was also told that the said amount of Rs.17,00,000/- is only inaugural offer and the price will be enhanced once the construction starts.  After visiting the said site and after verifying the property documents furnished by OP, the complainant decided to purchase 2 BHK flat to be constructed therein.  In the end of December 2014 the complainant visited the office of OP for the purpose of booking 2 BHK flat in the proposed apartment building.  Then the complainant was asked to pay 50% of total sale consideration in favour of OP as booking amount of said 2 BHK flat.  Thereafter the complainant paid Rs.8,50,000/- to OP.  The complainant has paid the amount of Rs.8,50,000/- to the OP as follows:

 

(i)  Rs.1,00,000/- by way of cash on 30.12.2014

(ii) Rs.50,000/- by way of cash on 10.01.2015

(iii) Rs.50,000/- by way of cheque bearing No.550242

      dated 30.01.2015 drawn on Vijaya Bank

(iv) Rs.6,50,000/- by way of cash on 11.03.2015.

 

The said cheques issued by the complainant are encashed by OP.  The OP has executed memorandum of understanding dated 30.12.2014 in favour of the complainant.

 

As per memorandum of understanding dated 30.12.2014 executed between the OP and the complainant the MOU will be in force between the parties for a period of 20 months or the completion of entire transaction whichever is earlier.  But even after lapse of 15 months from the date of memorandum of understanding OP did not make any effort to start the project.  Hence in the month of October 2016 the complainant approached the office of OP and enquired about delay.  Then the complainant was told that the said project will be started shortly.  But even after lapse of considerable time, the OP did not commence the work.  The complainant approached the office again and again and contacted the concerned person.  But every time the complainant was assured that the said project will be started shortly.  Since the OP failed to start the construction of said project even after lapse of almost two years, in the month of December 2016 the complainant asked the concerned person of office of OP either construct the project at the earliest or refund the amount paid by him.  Then the complainant was told that the construction will be started within a week.  But even after lapse of months, the OP has not started the construction of said project.  The complainant has come to know that the OP will not start said project and its Managing Director is only taking money from public falsely stating that she will construct flats in the said land.  After several reminders, finally the complainant got issued legal notice dated 11.04.2017 asking the OP to refund the amount of Rs.8,50,000/- along with interest and cost.  That the OP was aware that the complainant will issue legal notice and hence the OP has managed that the said legal notice is returned.

 

Later the complainant came to know that the OP is trying to alienate the said site bearing No.A3.  Hence the complainant filed a suit at O.S No.4895/2017 against the OP in the Court of City Civil Judge, Bangalore seeking decree of permanent injunction in respect of said site bearing No.A3.  In the said suit, the office of Hon’ble Court had raised objection that the original documents pertaining to said site bearing No.A3 are not produced.  But since the original documents pertaining to site bearing No.A3 were not in the custody of the complainant, he could not produce the same.  Hence, on 20.01.2018 the complainant withdrew the said suit with liberty to file fresh suit.  But later the complainant decided to approach this Forum seeking refund of amount.  Since the legal notice dated 11.04.2017 sent to OP was returned to sender, the complainant approached the office of OP and pasted the copy of the said notice to door of the office of OP on 13.05.2018.

 

As per clause No.6 of the memorandum of understanding dated 30.12.2014 executed between the OP and the complainant, the MOU will be in force between the parties for a period of 20 months or the completion of entire transaction whichever is earlier.  In case of delay for the completion of the project, the first party shall extend the time for a period of 3 months and in any further delay the first party has agreed to pay rent to the second party.  The period of 23 month is already elapsed.  But the OP has not even commenced the project work and the rent is also not paid by the OP.  The OP is liable to refund the amount of Rs.8,50,000/- together with interest to the complainant and the complainant is entitled to get the same from OP.  Believing the assurance made by OP, the complainant has paid amount of Rs.8,50,000/- to the OP to get a flat in the said project.  But the OP has made the complainant to invest in her project by giving false assurance.  Thereafter OP had failed to fulfill her assurance/promise.

 

The complainant has suffered a loss by investing amount in the project of OP.  The OP has failed in her service thereby causing loss to the complainant.  The complainant has been put to mental agony and loss because of OP.  The complainant’s amount of Rs.8,50,000/- is blocked with the OP since more than two years.  The OP has used the complainant’s amount falsely promising the complainant that the flat will be registered in his name.  Therefore, the complainant felt deficiency in service on the part of OP.  Hence, this complaint.

 

3. After registration of the complaint, notice was issued to OP.  Inspite of service of notice, OP remained absent without sufficient reason and cause.  Hence OP called out as absent and has been placed exparte.

4. In the course of enquiry into the complaint, the Complainant has filed affidavit evidence reproducing what he has has stated in his complaint.  The Complainant has produced documents along with complaint.  We have heard the arguments of the Complainant side and we have gone through the oral and documentary evidence of the Complainant scrupulously. 

 

5. Based on the above materials, the following points arise for our consideration;  

 

1. Whether the Complainant has proved that there is deficiency in service on the part of the OP, if so, whether he is entitled for the relief sought for?

 

2.  What order?

 

6. Our findings on the above points are as under:

 

Point No.1:  Partly in the affirmative

                 Point No.2:  As per the order below

 

REASONS

 

7. Point No.1: We have briefly stated the contents of the complaint filed by the complainant.  Though notice has been duly served on OP, he did not appear, hence placed exparte.  Under such circumstances, non-appearance and non-filing of version, draw an adverse inference that the OP has admitted the claim of the complainant in the light of the decision reported in 2018 (1) CPR 314 (NC) in the case of M/s.Singla Builders & Promoters Ltd., vs. Aman Kumar Garg, wherein it is held that,

 

“Non-filing of written version to complaint before the forum, amounts to admission of the allegations levelled against them in consumer complaint”.

8. To rebut the contents of the complainant, OP did not appear.  Hence, this Forum has no other go except to consider the contents of the complaint.  The complainant to substantiate his case has specifically stated that, the OP made an offer to public to invest amount to get flats in its project called “TGS BOSTON” to be constructed in site No.A3, situated at Kothanur village, Uttarahalli Hobli, Bangalore.  Pursuant to the offer, in the month of October 2014 the complainant approached the OP.  The said apartment building will be completed within 20 months and that the total sale price of 2 BHK flaw is Rs.17,00,000/- including all facilities.  Then the complainant was asked to pay 50% of total sale consideration in favour of OP as booking amount of 2 BHK Flat.  Thereafter the complainant paid Rs.8,50,000/- to the OP in various dates.  After received the amount the OP acknowledge the receipts and executed memorandum of understanding dated 30.12.2014.  This transaction clearly shows on seeing the documents produced by the complainant marked as Ex-A1 to A7.

 

9. As per clause No.6 of the memorandum of understanding “the MOU will be in force between the parties for a period of 20 months or the completion of entire transaction whichever is earlier.  In case of delay for the completion of the project, the first party shall extend the time for a period of 3 months”.  But even after lapse of considerable time, the OP did not commence the work.  After several reminders, finally the complainant got issued registered legal notice dated 11.04.2017 asking the OP to refund the amount of Rs.8,50,000/- along with interest & cost.  The said legal notice returned unserved as left.  Later the complainant came to know that the OP is trying to alienate the said site No.A3.  Hence the complainant filed a suit against the OP in the court of City Civil Judge, Bangalore, seeking decree of permanent injection.  In the said suit, the office of Hon’ble Court had raised objection that the original documents of site are not produced.  But since the original documents pertaining to site were not in the custody of the complainant, he could not produce the same.  Hence on 20.01.2018 the complainant withdrew the said suit.  It is also clearly shows on seeking the documents produced by the complainant marked as Ex-A8 to A11.

 

10. On perusal of the documents, the complainant paid a sum of Rs.8,50,000/- to OP i.e., 50% of sale consideration of flat.  But the OP did not come forward the construction work even lapse of 2 years.  In this regard, we come to the conclusion that, the OP is negligent and there is deficiency in service on her part.  On careful scrutiny of the case of the complainant and on the back ground of oral and documentary evidence, it is vivid and clear that the complainant who comes to Forum seeking relief has proved with clear and tangible material evidence.  Accordingly we come to the conclusion that the complainant is entitled for the refund of Rs.8,50,000/- along with interest @ 18% p.a from the date of respective payments till the realization, compensation of Rs.10,000/- and cost of litigation of Rs.5,000/-.  Accordingly, we answered the point No.1 partly in the affirmative.

 

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

 

ORDER

 

The complaint filed by the Complainant is allowed in part.

 

2. The OP is directed to refund a sum of Rs.8,50,000/- to the complainant along with interest @ 18% p.a from the date of respective payments till the date of realization.

 3. The OP is also directed to pay compensation of Rs.10,000/- and cost of litigation of Rs.5,000/- to the Complainants.

 

4. This order is to be complied by the OP within 45 days from the date of receipt of this order.

 

          Supply free copy of this order to both parties. 

 

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 28^th day of August 2019)

          

 

(ROOPA.N.R)       MEMBER

(PRATHIBHA.R.K)    PRESIDENT

 

1. Witness examined on behalf of the complainant by way of affidavit:

Sri.Kulashekara Sharma S, who being the Complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

Ex-A1	Copy of approval form.
Ex-A2	Copy of booking form.
Ex-A3	Copy of booking form receipt dated 30.12.2014.
Ex-A4	Copy of booking form receipt dated 10.01.2015.
Ex-A5	Copy of booking form receipt dated 30.01.2015
Ex-A6	Copy of booking form receipt dated 11.03.2015
Ex-A7	Copy of MOU dated 30.12.2014.
Ex-A8	Copy of legal notice dated 12.04.2017.
Ex-A9	Postal receipt.
Ex-A10	Postal cover
Ex-A11	Copy of case status.

 

(ROOPA.N.R)       MEMBER

(PRATHIBHA.R.K)    PRESIDENT

 

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