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

DATED 05^th DAY OF MAY 2023

ORDER

SMT.K.ANITA SHIVAKUMAR, MEMBER

Complainant filed this complaint under section 35 of Consumer Protection Act 2019 claiming refund of Rs.1,85,000/- from the OP along with interest at the rate of 24% per annum from 25.09.222019, to pay of Rs.1,00,000/- compensation for the deficiency of service, mental agony, financial loss and such other reliefs.

2. Brief facts of the case are as follows:-

The OP has developed the land bearing survey No.46/2 situated at Thalakere village, Thyamagondlu Hobli, Nelamangala Taluk, Banglore by forming a residential layout of sites with intention to alienate the same to proposed purchasers. Complainant stated that he visited OP’s office and believing the assurances and promises made by OP. He expressed his wiliness to purchase the site in the said residential layout. OP had executed a sale agreement on 25.09.2019 in favor of the complainant in respect of site No.41 formed in the said layout, measuring 1200 square feet for total sale consideration of Rs.6,70,000/- (including registration cost). Out of which the complainant has paid a sum of Rs.2,05,000/- to the OP as an advance sale consideration. Complainant paid Rs.10,000/- on 28.11.2018 by way of card, RS.30,000/- on 26.12.2018 by way of cash, Rs.1,15,000/- on 09.02.2019 and Rs.50,000/- on 25.09.2019 by way of cash. OP has issued receipt for the same in favour of the complainant. Subsequently, OP specifically undertakes to get registration of the sale deed in favour of complainant after obtaining approval from concerned authority. The same was dragged by OP giving one or the other reasons. OP has assured to execute sale deed in favor of complainant within 90 days from the date of agreement. Complainant alleges that he has visited OP’s office frequently and enquired about the status of development, but OP kept on postponing the matter on one or the other reasons. For no fault of complainant, OP made him to wait for longer period. He further alleges that due to the negligence of OP in rendering the services and OP’s intention is very clear to cheat the public. Complainant stated that OP has made part payment of Rs.20,000/- to complainant after several requests for refund the money. Complainant being bus conductor in BMTC has paid huge amount from his hard earned money, dreaming for site of his own, paid Rs.2,05,000/- to OP. Complainant alleges the deficiency of services caused by OP in not executing the sale deed as assured and non refund of his huge amount paid towards the site. Complainant caused legal notice dated 06.09.2022 to OP through RPAD. The notice was returned with a shara of ‘any such firm in the said address’. Again Complainant has sent notice to 2^nd mentioned address in the cause title. It is clear case of deficiency of services, and mis-representation by OP. Hence there is no other option for complainant except to approach this commission, seeking refund of Rs.1,85,000/- with interest of 24% per annum from 25.09.2019 till date.

3. The notice issued to OP in given two addresses, both notice returned un-served as ‘addressee left’. Hence complainant taken step to issue notice through paper publication. The notice sent to OP, service held sufficient. OP was absent on the date of appearance, hence he placed Ex-parte.

4. The case is set down to adduce affidavit evidence of complainant. Accordingly complainant submitted his oral and documentary evidences, as reiterated in his complaint. Complainant submitted 5 documents along with the certificate under section 65B of Indian Evidence Act. Complainant placed oral and documentary evidence which are marked as Ex.P1 to P6. We perused the documents on record.

5. The points that arise for our consideration are:-

i) Point No.1:- Whether the complainant proves the deficiency of service by OP?

ii) Point No.2:- Whether the complainant entitled to get relief as sought in the prayer?

iii) Point No.3:- What order?

6. Our findings on the above points are as follows:-

i) Point No.1:- In the affirmative.

ii) Point No.2:- partly affirmative.

iii) Point No.3:- As per the final order.

REASONS

7. Point No.1:- As complainant stated in his complaint, he has decided to purchase the site in the layout formed by OP. For that complainant agreed to pay Rs.6,70,000/- as sale consideration, out of which complainant has paid Rs.2,05,000/- to OP as an advance on different date’s. OP has executed the sale agreement on 25.09.2019 in favor of complainant in respect to the site No.41 formed in said layout, which is situated at Thalakere village, Thyamagondlu Hobli, Nelamangala Taluk, Banglore measuring  1200 square feet. The said sale agreement has produced at Ex-P1 and the payment made on different date’s are also mentioned in the sale agreement which is at Ex-P1. As per document P1, the complainant was due for Rs.4,65,000/-. It also discloses that sale shall be completed within 90 days from the date of sale agreement that is on 25.09.2019, otherwise vendor has to return the entire amount to the purchaser, paid as an advance. After the payment to OP, complainant has approached several times to execute the sale deed but OP dragged the matter by giving one or the other reasons till the date. OP kept on assuring to execute the sale deed without any proper and evidentiary reasons. It shows the negligence on the part of OP not giving the genuine reason to the complainant without executing the sale deed. Complainant has caused legal notice on 06.09.2022 through RPAD which is at Ex-P2 but not served on him returned un-served with shara of ‘no such firm in the said address’ which is at Ex-P4. Complainant visited OP’s office frequently to know more about the status on development, OP kept him in a dark and dragged matter on one or the other reasons. Complainant by investing huge amount with intention to get dream site in Bangalore but OP did not take any action to execute it. Hence complainant requested OP to re-pay his amount as he paid as an advance of sale consideration. Subsequently, OP has paid Rs.20,000/- only to the complainant  out of Rs.2,05,000/-which is at Ex-P5.

8. Point No.2:- On perusal of the pleadings and documents, it is proved that complainant has paid Rs.2,05,000/- and OP has repaid Rs.20,000/- only. OP is due to complainant for Rs.1,85,000/- for repayment. Without executing sale deed with respect to site NO.41 as assured, OP has no right to retain his amount. Hence OP is liable to refund Rs.1,85,000/- to the complainant with interest at the rate of 10% per annum. Since 2018, complainant was under the impression that he will get site, but at last, the result was come with empty hand that too by paying amount of Rs.2,05,000/- towards sale consideration. Hence waiting for long years by paying amount and OP has denied to execute the sale deed, amounts to deficiency of service and complainant has also suffered financially and mentally. For that OP has to compensate to the complainant by paying Rs.30,000/- towards compensation. OP has made the complainant to approach this commission without fault of him, may incurred money on filing this complaint. Hence complainant is entitled to get cost of proceedings of Rs.10,000/-. For the foregoing reasons we answer point No.2 in partly affirmative.

9. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed under section 35 of Consumer Protection Act 2019, is partly allowed.

2. OP is directed to refund Rs.1,85,000/- to the complainant with interest at the rate of 10% per annum from the date of respective payments till realization.

3. OP is further directed to pay Rs.30,000/- towards compensation and Rs.10,000/- towards cost, within 30days from this day, failing which OP shall pay interest at the rate of 12% per annum on Award amount from expiry of 30days till realization.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^th day of APRIL, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;