CC No.1350/2018                                                                        Date of filing:10.08.2018

                                                                                                 Date of Disposal: 21.08.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

                                                    BENGALURU– 560 027.                                                  

DATED THIS THE  21^st   DAY OF AUGUST 2019

CONSUMER COMPLAINT NO.1350/2018

PRESENT:

Sri    Venkatasudarshan  D.R.  B.Com,LL.M.,              …. President

Smt  L.Mamatha, B.A., (Law), LL.B.                              ….      MEMBER

COMPLAINANT:

Sri. Bhaskar .N

S/o Nagraj. S, 40 years,

R/at No.20, 5^th main road,

5^th cross, Sampangiramanagar,

Bangalore-560027.

(Complainant by Sri. V.G. Manjunath, Advocate)          

 V/s

OPPONENT:

M/s Vsan Infrastructure Private Limited,

No.11 & 12, P.S. Plaza, Jawaharlal street

Road, Seshadripuram, Bangalore-560020.

(Exparte)  

 = = = = = = = = = = = = =                               

Written by Sri Venkatasudarshan D.R., President

              ******

// ORDER //

1. This is a complaint filed Under Section 12 of the Consumer Protection Act 1986 by the complainant Sri. Bhaskar .N against  M/s Vsan Infrastructure Private Limited seeking direction to the opponent to refund a sum of Rs.2,15,001/- together with interest at the rate of 24% p.a. to be calculated from November 2013 and for other such reliefs.

2. The brief facts of the case of the complainant as per the complaint are that the complainant had booked for a site in the project called SANCITY BLUE BELL  to be formed by the opponent on 25.11.2013 by paying a sum Rs.1,000,/- and another sum of Rs.4,000/- on 27.11.2013 and thereafter paid money in installment to the tune of Rs.2,10,000/- during the period from 22.01.2014 till 03.10.2017 and thus in all paid a sum of Rs.2,15,001/-.  The layout has to be formed on the land bearing survey No.41 to 46 at Hunsur thaluk, Mysore district.

3. The complainant was allotted a site bearing No.1616 measuring 20 X 30 feet and the Memorandum of Understanding was entered in between the complainant and the opponent on 24.12.2013 and again renewed from time to time.  Though the complainant has paid the entire sum the opponent has not shown any progress in forming the layout and giving a site to the complainant.  Therefore on 10.02.2018 the complainant made the written request for cancellation of the above site and refund the amount.  In spite of repeated request the opponent did not make payment.  A legal notice sent on 25.06.2018 also went in vain.  Hence, the complaint.

4. After admitting the complaint the notice was ordered to be issued to the opponent.  The opponent received the notice but remained absent.  Hence opponent was placed an exparty.

5. When the case was set down for recording evidence, the complainant has filed his affidavit evidence and also produced certain documents about which discussion will be made in the course of this order.

6. Heard the arguments of learned advocate for the complainant who has also filed written arguments.    

7.      The points that arise for our determination are:-

(1) Whether the complainant proves that there is deficiency in service on the part of the opponent?

(2) Whether the complainant is entitled for the reliefs sought in the complaint?

8.    Our findings on the above points are:-

Point No.1:- In the affirmative.

Point No.2:- Partly in the affirmative.

Point No.3:- As per the final order for the following.

9.   POINT NO.1:-   This is a complaint filed by Bhaskar .N seeking direction to the opponent to refund Rs.2,15,001/- together interest at 24% p.a. to be calculated from November 2013 and for other reliefs.

10. The complainant in order to substantiate the complaint averments got himself examined by filing his evidence by way of affidavit.  The averments in the affidavit are nothing but the repetition of the complaint averments.  Since the averments made in the complaint have already been narrated above, there is no need for us to discuss again about the averments of the affidavit.  We have to see as to whether the oral evidence of the complainant is supported by the documents.  The fact that the complainant has booked a plot by paying a sum of Rs.1,001/- and another sum of Rs.4,000/- on 25.11.2013 and 27.11.2013 are established by the two original receipts bearing Nos.28280 and 28283 purported have been issued by the opponent  is available on record.   The fact that the complainant and the opponent have entered into a memorandum of understanding on 24.12.2013 is the original document executed in a stamp paper which is at annexure A-1 produced by the complainant.  This document shows that the complainant was agreed to be given a site bearing plot No.1616 (SANCITY BLUE BELL) to be carved out in survey Nos.41 to 46 at Hunsur Taluk.  The total value of the site was Rs.2,24,000/-.  In this document there is a recital for the opponent having received the aforesaid payment of Rs.5,001/-.  Another document produced by the complainant at Annexure A-2 is a renewal of memorandum of understanding dated 25.12.2014 is also produced in the form of a copy containing the seal and signature of the opponent.  In this document, the recital has also been made with respect to the EMI payments of Rs.5,000/- per month commencing from 06.02.2014 to 03.12.2014 in all amounting to Rs.60,000/-.  Annexure A-3 is another renewal of memorandum of understanding dated 10.01.2016 between the complainant and the opponent.  In this document, details of EMI payment from 06.02.2014 till 05.01.2016 in all Rs.1,25,000/- has been recited.  The complainant has also produced the original receipts issued by the opponent from time to time in respect of the EMI payments made up to 05.01.2016.  Thus the total payment made comes to Rs.1,30,001/-. 

11. Apart from the above, there are certain receipts which are produced by the complainant issued by the opponent for having received further sums of money on different dates they are all at ink page No.51 to 58 of the list of document produced by the complainant.  They are as under;

This apart the complainant has also produced Annexure-D showing the details of all the payment made.  As per this all the payments were online transfer and the total payment made was Rs.2,15,001/-.  It is the definite case of the complainant that as against the total consideration fixed at Rs.2,24,400/- he has made payment of Rs.2,15,001/- in accordance with terms of memorandum of understanding 24.012.2013.  It was agreed by the opponent that the duration of the agreement was 11 months within which the opponent had to form layout and deliver the possession of plot to the complainant.  In the first Memorandum of Understating thereafter extended by another 11 months.  In the second Memorandum of Understating dated 25.04.2014 which was again extended by another 11 months under Memorandum of Understating dated 10.01.2016.  As per this the last 11 months period expired on 10.12.2017.  This complaint has been filed on 09.08.2018.  It is averred in the complaint and also deposed in the evidence that there was no progress at all made by the opponent in developing the land and forming the layout.  This allegation made in the complaint has not been disputed or challenged by the opponent.  The receipt of a major portion of the consideration amount has not been denied by the opponent. The opponent who has received notice remained absent and did not file version.  When the opponent did not file the version challenging/ disputing allegations made in the complaint, the inference is are all admitted.  The Hon’ble National Commission reported in 2018(1) CPR page 214 and 255.  So having received the substantial portion of the consideration amount as per the terms of the Memorandum of Understating if the opponent has failed to form a layout and deliver possession of a plot by executing a title deed.  This certainly amounts to deficiency in service.  The opponent being a builder has become a defaulter.  Being a defaulting  builder the opponent is liable to refund the entire received amount.  This principle has laid down in the decision of the Hon’ble National Commission reported in 2018(part1)  CPR (NC) page 237 in Pradeep Gupta and Others V/s Unitech Hi-Tech Developers Ltd., and 2018 (part1) CPR (NC) page 89 in Rajesh Bathija V/s Unitech Limited and Another.  In the result we hold that the opponent has committed an act of deficiency in service and accordingly we answer point No.1 in the affirmative and in favour of the complainant.

12. POINT No.2 & 3 :-   In view of the finding recorded on the point No.1 holding in the affirmative, the next question that arise for our consideration is the relief to which the complainant is entitle.  The complainant has sought for the refund of the sum of Rs.2,15,001/- which he has paid to the opponent.  The complainant is justified in claiming refund of the said amount since the opponent did not fulfill the terms and conditions which he was obliged to as per the terms of the Memorandum of Understating.   So the complainant is entitle to receive Rs.2,15,001/- from the opponent.

13. The complainant has sought for interest at the rate of 24% p.a. from November 2013 i.e., the date on which he made payment of Rs.1,001/-.  This rate of interest claimed by the complainant is exorbitant.  The fact that the money paid by the complainant was his hard earned money cannot be ruled out.  It can also be not ruled out that the opponent has got himself enriched at the cost of the complainant by receiving the amount from time to time in installments.  Therefore the complainant who has been put to loss has to be compensated.  Having regard to the facts and circumstances of the case, we deem it fit and proper to award interest at the rate of 12% p.a. to be calculated from the dates on which the payment of each installment is made till the date of actual realization. 

14. It is not a fact to be forgotten that everyone will have a dream of having their own house built or a plot of their choice.  It is their desire to leave peacefully under their own roof with family.  With such hope the complainant in this case had booked for plot with the opponent.  Unfortunately it did not materialized.  Added to that even the opponent did refund amount though a written request was made by the complainant as per Annexure-C and a legal notice was sent as per Annexure-E on 25.06.2018.  The opponent who had acknowledged the receipt of the legal notice as per Annexure –G has kept quiet and thereby driven the complainant to file this complaint.  One can imagine the physical and mental strain and harassment to which the complainant has put to.  This mental agony needs to be compensated in terms of money.  We deem it fit and proper we award a sum of Rs.10,000/- as compensation under this head.

15. The complainant having been driven to file this complaint before this Forum had engaged the services of an advocate and prosecuted this case till the end.  Necessarily the complainant must have incurred expenditure.  We award a sum of Rs.5,000/- under this head of cost of litigation.  In the result we answer point No.2 partly in favour of the complainant and proceed to pass the final order.

                                      -:ORDER:-

 The complaint filed Under Section 12 of Consumer protection Act by Sri. Bhaskar .N. is allowed in part as under:-

     The complainant is entitled to receive from the opponent a sum of Rs.2,15,001/- (Two lakh fifteen thousand and one only) together with interest at 12% p.a. to be calculated from the dates on which the payment of each installment was made till the date of actual realization.

          The complainant is also entitle to receive a sum of Rs.10,000/- (Ten thousand)only from the opponent  as compensation towards physical and mental stress, harassment and the mental agony undergone by him.

          The complainant is also entitle to receive a sum of Rs.5,000/- (Five thousand)only from the opponent  being the cost of litigation.

    The opponent shall comply with the above order within 30 days from the date of this order.

                       Supply free copy of this order to both the parties.

(Dictated to the Steno, typed by her, transcript corrected, revised and then pronounced by the open Forum on 21^st day of August 2019)

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri. Bhaskar .N, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Memorandum of understanding 3 in numbers are marked as Annexure-A1 to 3.
2. The original receipts issued by opponent are 28 in numbers are marked as Annexure B1 to 28.
3. The online transfer details to opponents Bank account it is marked as Annexure-C.
4. The letter written by complainant is marked as Annexure-D.
5. The office copy of the legal notice is marked as Annexure-E.
6. The postal receipt and acknowledgement are marked as Annexure-F and G.

Witness examined on behalf of the Opposite Parties:

• Nil -

List of documents filed by the Opposite Party:

• Nil -