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

DATED 30^thDAY OF AUGUST 2021

ORDER

SRI. S.L.PATIL, PRESIDENT

The complaint has been filed by complainant U/s.35 of the Consumer Protection Act, 2019 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to pay a sum of Rs.4,92,000/- along with interest at 18% p.a. from 22.05.2016 till 31.12.2020 Rs.3,17,340/-, to pay interest towards bank loan Rs.30,000/-, to pay Rs.20,000/- towards mental agony and litigation cost of Rs.5,000/- totally Rs.8,64,340/- and to grant such other reliefs.

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

The complainant submits that as per television advertisement given by OP for sale of sites constructed by its institution name called Greenvaley Residency, she, her uncle and her two neighbours went to visit OP and contacted one person name called Kishore, Executive of OP office for purchase of site.  Further complainant submits that she entered into sale agreement with OP by paying advance amount of /Rs.50,000/- on 07.07.2016 vide receipt No.VP/2016-17 for purchase of site No.39 in the said layout and remaining a-mount will be paid at the time of registration of the site.  Further she submits that she paid Rs.1,50,000/- on 15.09.2016 vide receipt No.VP/127/2016-17, Rs.1,40,000/- on 27.03.2017 vide receipt No.VP/296/2016-17 and another Rs.1,52,000/- on 22.05.2017 vide receipt No.VP/80/2017-18 totally complainant paid Rs.4,92,000/- for which she produced receipts, booking form, sale agreement.

Complainant further submits that she contacted Executive Kishore over phone, but he gave an untenable reply.  Further complainant submits that she requested to OP to refund the amount on several times for which OP told that Managing Director of OP name called Ravindra is died due to accident in the year 2019 who signed the sale agreement.  Further complainant submits that in month of November, 2020 her marriage was fixed, so she need money for which she contacted OP to refund the amount, but OP did not refund the amount.   Further complainant submits that she visited the OP office with their colleagues to meet the Kishore twice but they did not give opportunity to meet him.  Further complainant submits that informed by OP office, after death of Ravindra her wife is becoming successor, so she will handle all the office correspondence so complainant asked to OP for refund of amount for which they told that we gave consent letter from our letterhead by taking sign by Successor for refund of amount within two months.  But OP failed to do so. 

Further complainant wrote a letter to OP on 20.11.2020 for which there is no response from OP.  Lastly, complainant issued a legal notice to OP on 02.12.2020 calling upon to refund of money.  The said notice was reached to OP on 03.12.2020 for which Executive Kishore called to complainant’s counsel and told that January, 2021 we cleared the amount by giving two cheques.  But, OP did not do so. The complainant has been exposed to a great loss due to the high handed and illegal act of the OP, she has suffered immense mental agony, pain and hardship due to deficiency and irresponsibility in service by the OP.  Hence, this complaint.

3. After admission of this complaint, ordered to issue notice to OP.  The track consignment of the postal department goes to show that item delivered confirmed.  Hence, this commission ordered that if the notice is being sent to the proper given address and the postal track goes to show that item is delivered, confirmed, hence, service of notice is held sufficient, OP called out absent, placed exparte.  Thereafter, matter is posted for filing affidavit evidence of complainant.

4. Complainant has filed affidavit evidence and also produced documents marked as Ex.P.1 to P.13.  The complainant has also filed written argument.   Heard the complainant.

        5.The points that arises for our consideration are:

6.Our answer to the above points:

REASONS

7. 7. Point No.1: In this case, we have stated above OP did not appear to contest the claim of the Complainant by way of filing the version, hence placed exparte. Under such circumstances, non-appearance and non-filing of version can be drawn 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. Any how we placed eliance on the available materials on record.  On going through the contents of the complaint it is evident that the complainant had entered into sale agreement with OP by paying advance amount of Rs.4,92,000/- on different dates for which she has produced receipts marked as Ex.A.2 and Ex.A.4 to 6 and Ex.A.3. To falsify all these facts, OP did not appear. In the instant complaint, the complainant sought for refund of amount of Rs.4,92,000/- with interest at 18% p.a., etc., In this context to place the reliance of the judgement reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund of earnest money.

9. Hence, option is left open to him for enforcement of the agreement of sale directing the OP for registration of the sale deed if not sought for refund of money.  In this context, we inclined to direct the OP to refund the amount of Rs.4,92,000/- with interest at the rate of 10% p.a. by way of compensation with litigation cost of Rs.5,000/-.  Accordingly, we answer the point No.1 partly in the affirmative. 

10. Point No.2:  In the result, we pass the following:

ORDER

1. The complaint filed by the complainant U/s 35 of the Consumer Protection Act, 2019 are allowed in part. 
2. The OP is directed to refund an amount of Rs.4,92,000/- (Rupees four lakhs ninety two thousand only) with interest at the rate of 10% p.a. by way of compensation from the date of deposit till realization with litigation cost of Rs.5,000/- (Rupees five thousand only). 
3. We also direct the OP to realize the above said amounts to the Complainant within 3 months from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.
4. Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 30^th day of August, 2021).

Documents produced by the complainant marked as Ex.P.1 to Ex.P.6:-