COMPLAINT FILED ON:27.07.2010

DISPOSED ON:15.12.2011

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

15^th DAY OF DECEMBER-2011

  PRESENT:-  SRI. B.S. REDDY                       PRESIDENT

                     SMT. M. YASHODHAMMA               MEMBER

                     SRI. A. MUNIYAPPA                       MEMBER

COMPLAINT No.1747/2010

O R D E R S

SRI. B.S. REDDY, PRESIDENT

The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Parties (herein after called as O.Ps.,) to refund an amount of Rs.8,60,123/- with interest at 18% p.a. and to pay compensation of Rs.5,00,000/- towards mental agony, stress and harassment Rs.6,00,000/- compensation towards financial loss caused to the complainant along with litigation cost of Rs.25,000/- on the allegation of deficiency in service on the part of the OPs.

2. The case of the complainant to be stated in brief is that:

OP1 is a Builder engaged in the business of real estate, construction of apartments etc., and OP2 is the person in charge of all marketing and other allied activities of the OP and responsible for the booking, sale of apartments collection of payments etc. The complainant booked the apartment in the project of OPs namely ‘Tower-4 Adarsh Palm Retreat’ which was proposed to be put up on Sarjapur Road, Bangalore next to the office of Intel Corporation. On 21.11.2005 the complainant paid an amount of Rs.3,00,000/- in cash while booking the apartment bearing No.C-504(B) in Block “C”. OPs issued the receipt and issued a letter confirming and blocking of the apartment as well as giving payment schedule. The complainant after having the initial amount, after completion of the negotiations was asked to pay an additional sum of Rs.5,60,123/- towards the confirmation of the booking which payment the complainant proceeded to make by way of two cheques on 01.12.2005 and OPs issued the receipts along with covering letter. The schedule for the balance payment towards the purchase of the apartment was given separately to the complainant. At the time of booking it was orally represented by the OPs that the construction work of the proposed apartment complex would commence shortly and the construction would be completed within 2 years from December-2005. It was represented to the complainant that the apartment he had booked for was one in Tower-4 and since construction work of Tower-4 would also be commenced soon and completed within the promised time of 24 months. The complainant believing the words of the OPs after having paid a total sum of Rs.8,60,123/- hoped to own the apartment and move into it when he relocates to India. The complainant who is residing in USA as he is employed there continued to enquire telephonically with the office of the OPs regarding the progress of the construction of the apartment and time and again he was assured that the construction would be taken-up and completed soon. However, since the complainant was not called to pay any further amounts required to be paid by him as per the schedule of payment he made enquires through his mother-in-law (who is representing him as his Attorney in this complaint) who personally visited the office of the OPs and learnt in the month of August-2008 that construction of Tower-4 had never began at all. This fact was learnt by the complainant after having waited for a period of almost 4 years the complainant realized that the construction of the apartment would not be completed as promised. The complainants decided to cancel the booking and get the amount paid. Accordingly, he addressed an E-mail as on 09.08.2009 to the OPs and informing his decision to cancel the booking and requested for the refund of Rs.8,60,123/. It was only after the complainant visited office of OPs, after about one month OPs assured the complainant that the refund process of the booking amount has been initiated and further it was represented that the complainant will be informed regarding the same. The complainant got issued legal notice dt.01.04.2010 to the OPs, an untenable reply was issued by OPs in the reply notice OPs have specifically admitted that the delay was due to the fact plan approval of the construction from BDA was delayed. Further, OPs have in their reply stated that they have prepared a cheque for Rs.8,60,123/- on 12.04.2010 i.e., after having received that legal notice dt.01.04.2010, towards refund of the booking amount and requested the complainant to approach them to collect the refund cheque by handing-over the original receipts and allotment letters. OPs all along with kept making false promises and even now they have not drawn their willingness to be fair to the complainants and did not dispatch the alleged cheque that they claim to have prepared. OPs did not dispatch the cheque, since they wanted the complainant to hand over all the original documents and forgo his claim for interest, compensation and damages as claimed in the notice and pay only the sum of Rs.8,60,123/-, which the complainant was not willing to accept. The complainant having booked issued rejoinder notice dt.25.07.2010, OPs neither replied nor complied with the demand. The complainants have denied the apartment in the project promoted by the OPs did not look for or purchase any other property in Bangalore and he had to face immense mental agony, stress, harassment and further exposed to financial losses on account of loss of opportunity of owning a property in the last five years and further the resultant loss due to the appreciation of prices of properties in Bangalore during the past five years. The complainant has been put to great hardship due to the deficiency of service by the OPs. Hence, the complaint seeking the relief stated above.

3.On appearance OP filed version admitting that the complainant booked an apartment in the residential apartment complex proposed to be developed by OP namely ‘Tower-4 Adarsh Palm Retreat’ and has paid the total amount of Rs.8,60,123/-. Out of that the amount of Rs.3,00,000/-paid by cash on 21.11.2005 and the balance of Rs.5,60,123/- towards confirmation of the booking by way of two cheques dt.01.12.2005. It is denied that at the time of booking of the apartment it was orally represented by Ops to the complainant that the construction would be completed within 24 months from the date of booking i.e., from December-2005. It is admitted that the complainant addressed email on 09.08.2009 to Ops and informed his decision to cancel the booking and requested for the refund of Rs.8,60,123/-. It is also admitted that the complainant visited the office of the Ops after about one month and Ops informed the complainant that the refund process of the booking amount has been initiated and he will be informed regarding the same. The allegation that the Ops in spite of having received the request for refund of the booking amount kept on making false promises thereby denying the reimbursement indefinitely is denied as false. It is admitted that the complainant got issued legal notice dt.01.04.2010 and Ops got issued reply through their counsel. It is stated that the reply has been rightly issued which is fully appropriate. Ops in the reply admitted that there is delay in construction of the apartment and the delay is due to the fact that the approval for the construction from BDA was delayed and that they have received the complainant’s request for cancellation of the booking on 08.10.2009. Ops in their reply dt.26.04.2010 stated that they have prepared the cheque for a sum of Rs.8,60,123/- on 12.04.2010, towards refund of the booking amount and requested the complainant to approach them to collect the refund cheque by handing over the original receipts and allotment letters. The complainant withheld the return of the documents connected with the booking of the apartment. The question of Ops delivering the ready cheque did not at all arise. The question of complying the demand made in the notice dt.01.04.2010 and rejoinder dt.27.05.2010 did not arise. The allegation that the complainant having booked the apartment in the project promoted by the Ops did not look for or purchase any other property in Bangalore and having done so to his dismay, had to face immense mental agony, stress, harassment and further exposed to financial losses on account of loss of opportunity of owning a property in the last five years and further the resultant loss due to the appreciation of prices of properties in Bangalore during the past 5 years and that the complainant has been put into great hardship due to the deficiencies of service by Ops is false and illegal. The allegation that the complainant having lost opportunities of owning a property in Bangalore in which he could have lived after having relocated in India having forced to change his mind of relocating to India which has caused him and his family great mental agony and distress, being aggrieved by the deficiency in service of the Ops and having no other alternative and efficacious remedy is forced to approach this Hon’ble Forum are all false, illegal and fabricated for the purpose of filing the complaint.

            The complainant has suppressed several material information relating to letter dt.23.03.2009 issued by Ops informing that the Ops got the plan sanctioned by the BDA and that the construction would be shortly commenced. Under the same letter, complainant was also informed about the increase in the cost from Rs.57,34,154/- to Rs.58,90,698/- and calling upon the complainant to deposit a sum of Rs.6,12,552/- on or before 07.04.2009. The approved plan was also attached along with the said letter. In the said letter, it is specifically made clear that the payment schedule has no nexus whatsoever with the approval by the BDA and the allotment of the apartment is subject to approval from BDA. It is also specifically mentioned that in case of cancellation of the booking of the apartment only the amount paid would be refunded. This means that there was no contract for payment of interest on the advance amount when the same is refunded on cancellation of the booking.  There is no cause of action to file the complaint, the complaint is not in time. Hence it is prayed to dismiss the complaint with exemplary costs.

4.The P.A. Holder of the complainant in order to substantiate complaint averments filed affidavit evidence. The Partner of the OP filed affidavit evidence in support of the defence version.

5.   Arguments heard on complainant’s side. OP side taken as heard.

6.         Points that arise for our consideration are:

       Point No.1:- Whether the complainant has proved           

                          the deficiency in service on the part  

                           of the OPs?

               Point No.2:- If so, whether the complainant is

                   entitled for the reliefs now claimed?

       Point No.3:- To what Order?

7. We record our findings on the above points:

       Point No.1:- Affirmative.

               Point No.2:- Affirmative in part.

               Point No.3:- As per final Order.

R E A S O N S

At the out set it is not at dispute that the complainant booked the apartment in the project of Ops namely ‘Tower-4 Adarsh Palm Retreat’ which was proposed to be put up on Sarjapur Road, Bangalore and paid an amount of Rs.3,00,000/- in cash while booking the apartment on 21.11.2005. The apartment booked bears No.C-504(B) in Block “C”. After completion negotiations the complainant was asked to pay an additional sum of Rs.5,60,123/- towards the confirmation of the booking and accordingly the complainant has paid the said amount by way of 2 cheques on 01.12.2005. Ops issued the receipts acknowledging the receipt of the amounts. The complainant claims that at the time of booking the apartment it was orally represented by the Ops that the construction work of the proposed apartment complex would commence shortly and would be completed within 2 years from December-2005. The complainant having paid total sum of Rs.8,60,123/- hoped to own the apartment and move into it when he relocates to India, as he was working at USA. Ops failed to commence the work as assured and complete the project within 2 years. The complainant made enquires through his mother-in-Law who visited the office of Ops in the month of August-2008, ascertained that the construction of ‘Tower-4 had never began at all. Thus the complainant came to know about the work being not commenced regarding the construction of the apartment. After having waited for a period of 4 years decided to cancel the booking and get the refund of the amount paid. Accordingly, he addressed email on 09.08.2009 to the Ops informing his decision to cancel the booking and requested for the refund of Rs.8,60,123/-. After about one month the complainant visited the office of the Ops and at that time Ops assured that the refund process of the booking amount has been initiated and the complainant will be informed regarding the same. Thereafter the complainant got issued legal notice dt.01.04.2010 demanding to refund the amount with interest compensation, in the reply Ops admitted the delay due to the fact plan approval of the construction from BDA was delayed and the Ops stated that they have prepared cheque on 12.04.2010 for Rs.8,60,123/- towards the refund of the booking amount and requested to approach them to collect the cheque by handing over the receipts and allotment letters. Ops did not dispatch the alleged cheque, since they wanted the complainant to handover all the original documents and forgo his claim for interest, compensation and damages as claimed in the notice for which the complainant was not willing to accept. Thus the complainant felt deficiency in service on the part of the Ops and approached this Forum.

8. The main defence of the Ops for the delay in commencement of the construction of the apartment complex is due to the fact that approval for the construction from BDA was delayed. Ops issued letter dt.20.03.2009 to the complainant informing that they have got the sanction plan from BDA and the construction would be shortly commenced and he was called upon to deposit sum of Rs.6,05,552/- on or before 07.04.2009. Further it is stated that the approved plan was also attached along with said letter and in the letter it is mentioned that in case of cancellation of the booking of the apartment only the amount paid would be refunded. In our view, in case if the Ops had not got duly approved sanctioned plan from BDA for construction of the apartment complex, there was no reason for accepting the booking of the apartment and receiving the amount from the complainant in the year 2005. The complainant waited for about more than 4 years, Ops failed to commence the construction of the apartment complex, the complainant was left with no other alternative than canceling the booking. The complainant cannot be blamed in cancellation of the booking. Even assuming that there was no any oral assurance from the Ops at the time of booking of the apartment that the construction would be completed within 2 years, even then within a reasonable period the work of construction should have been commenced. The construction was delayed only on account of approved plan was not sanctioned by BDA and the same is stated to have been sanctioned in the year-2009 after lapse of about 4 years from the date of booking. Under these circumstances, we are of the view that the act of Ops neither commencing the construction work of the apartment complex and completing the same within a reasonable time nor refunding the amount received from the complainant amounts to deficiency of service on its part. Though the cheque is stated to have prepared on 12.04.2010 for refund of the amount but the same was not dispatched to the complainant and the complainant was made to forgo his claim for interest, compensation and damages as claimed in the notice. There was no justification on the part of Ops in denying reasonable interest on the amount retained by them without commencing  the work of construction. Accordingly, we are of the view that the complainant proved deficiency in service on the part of the Ops.

9. During the pendency of the proceedings, Ops issued cheque for Rs.8,60,123/- in favour of the complainant on 13.10.2010 towards refund of the amount. The only question now is with regard to the interest and compensation of Rs.5,00,000/- claimed towards mental agony and Rs.6,00,000/- claimed towards financial loss caused to the complainant. The complainant was waiting for commencement of the construction of the apartment complex and for the demand from Ops to pay the further amount as per schedule but Ops failed to commence the construction work. For about more than 4 years the complainant was made to wait, he has not looked for any other apartment as he had already booked the apartment in the project proposed by Ops. We have to take into consideration of the fact that opportunity of owning a property in the last more than 5 years and the resultant loss due to the appreciation of prices of properties in Bangalore during the past 5 years and the mental agony and harassment suffered by the complainant. In a similar case, in first Appeal Nos.40 and 44/1998 disposed of on 30.05.2006 Broadway Tower India Pvt. Ltd., V/s Sharat Chawla reported in CDJ 2006 (cons) case No.153, the Hon’ble National Commission awarded interest at 18% p.a. from the date of deposit till the date of payment with litigation cost of Rs.5,000/-. Taking into consideration of all the facts and circumstances we are of the view that ends of justice would be met by awarding interest at 18% p.a. by way of compensation from the date of payments till the date of refund of the amount with litigation cost of Rs.5,000/-. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is allowed in part.

The OPs are directed to pay interest at 18% p.a. on the amount of Rs.8,60,123/- from the respective date of payment till 13.10.2010 the date on which that amount has been refunded to the complainant and pay litigation cost of Rs.5,000/-to the complainant.

This order is to be complied within four weeks from the date of this order.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 15^th day of December 2011.)

 MEMBER                    MEMBER                     PRESIDENT

Cs: