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

DATED 13^TH DAY OF AUGUST 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to pay the sum of Rs.10,00,000/- being the amount paid as advance towards the cost of flat by the complainant.
2. Interest at 12% p.a.,
3. A sum of Rs.5,00,000/- towards mental agony.
4. Cost of this proceedings.
5. Further and other reliefs as this authority may deem fit and proper.

2. The case set up by the complainant in brief is as under:-

The case of the complainant is that the OP is running the real estate business in the name and style AMP builders and marketing the business.

3. It is further case of the complainant OP has given vide publicity that they are acquiring the residential apartment to be constructed in the name and style “AMP ABSOLUTE”.  The complainant impressed by the said publicity given by the OP has booked a flat  and agreed to purchase the said flat for a total consideration amount of Rs.48,74,013/-. The complainant has paid Rs.10,00,000/- through cheque and the OP have issued receipt for the said amount.
4. As per the terms and conditions of the booking form it was agreed that the parties shall execute a sale cum construction agreement within a period of 15 days from the date of application.  However the OP did not come forward to execute the sale cum construction agreement even though the complainant was always ready and willing.  The OP instead of executing sale cum construction agreement has executed a booking form which is the form of an agreement with terms and conditions binding on both the parties.
5. After receipt of the advance amount of Rs.10,00,000/- the OP has allotted flat bearing No. 202-B consisting of 3 bed rooms in the residential apartment to be constructed by the OP.  The complainant agreed to the terms and conditions put forth by the OP including payment schedule. The OP failed to commence the project which prompted the complainant to issue a notice on 04.09.2018 demanding the refund of advance amount paid at the time of booking.  
6. The inordinate delay and failure on the part of the OP in commencement of construction and delivery of possession of the flat has caused considerable mental agony besides monitory loss to the complainant. The whole action of the OP amounts to deficiency of service. Hence this complaint is filed.

7. In response to the notice, OP1 appears and files version. OP2 remained absent and placed exparte.

8. The OP1 has filed his version stating that the complaint is not maintainable and it is false, frivolous and vexatious.  The allegations made by the complainant are incorrect and baseless.  The complainant has suppressed the material facts only with a sole intention to get a necessary order from this court.

9. The OP1 further stated that they are the partners of M/s AMP builders. They have clearly admitted that the complainant has engaged their service for acquiring a residential apartment to be constructed in the name style as “Absolute”.  This OP has agreed to sell the flat for a sale consideration amount of Rs.49,13,639/- and not Rs.48,74,013/-.  The OP further admitted that the complainant has booked the flat No.107 located in the I Floor, B Block of AMP Absolutes.  The complainant has paid Rs.10,00,000/- towards advance amount and the same was credited to the OPs Federal Bank account.

10. It is the case of the OP that due to misunderstanding between the earlier partners the said project was not started then they made new Deed of Reconstitution of Partnership by way of agreement. Hence the OP has refunded the advance amount on 17.01.2019 under cheque No.367411 dated 14.01.2019 drawn on Federal Bank, Koramangala Branch, Bangalore Urban and the same was debited from the OPs bank.  The complainant has received the amount of Rs.10,00,000/- by way of cheque dated 14.01.2019 in respect of cancellation of flat No.207, III Floor, in the project known as Absolute. The complainant has signed the payment acknowledgement on 17.01.2019.  The complainant has suppressed the material facts before this commission and filed this complaint. The act of the complainant amounts to abuse of process of commission.  Hence OP prayed for dismissal of the complaint.

11. The complainant has filed his affidavit evidence and relies on 06 documents.  Affidavit evidence of Senior Manager of OP1 has been filed and OP relies on 08 documents.

12. Heard the arguments of advocate for both parties.  Perused the written arguments and documents.

13. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

14. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

15. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of both the parties, written arguments and documents.
16. It is undisputed fact that the complainant had engaged the services of the OP for acquiring residential apartment to be constructed in the name and style AMP Absolute in response to the vide publicity given by the OP.  The complainant has submitted a booking form as per Ex.P1 and agreed to purchase the flat for a sum of Rs.48,74,013/-.
17. It is further undisputed fact that the complainant has paid Rs.10,00,000/- through cheque dated 18.01.2016 and 02.02.2016 and the OP has issued receipts as per Ex.P2 and P3 for having received the amount.  When there was an inordinate delay in commencing the project the complainant has issued a notice as per Ex.P4 requesting for refund of advance amount paid by him. The said notice was served as per Ex.P5 and P6.  
18. The complainant has filed CC No.2031/2018 before this commission and our Predecessor in the office have rejected the complaint at the stage of admission itself stating that this commission has no pecuniary jurisdiction to try this complaint.
19. After that the complainant has filed the complaint in CC No.30/2023 before the Hon’ble state Commission and the commission has return the complaint along with documents with liberty to the complaint to file the complaint before the appropriate authority. After that the complainant again filed this complaint before this commission on 15.11.2023.
20. On the other hand the contention taken by the OP is that they have already refunded the amount of Rs.10,00,000/- to the complainant on 14.01.2019 vide cheque as per Ex.R2 and the same was cleared on 19.01.2019 as per Ex.R3. The OP has also produced the copy of the Deed of Reconstitution of Partnership by way of agreement.  The OPs have produced the copy of payment acknowledgement dated 17.01.2019 for having paid the amount to the complainant. Inspite of the refund of the amount the complainant has filed this complaint and it is nothing but abuse of process of this commission. The OP have also got examined one of their Senior Manager Prita Rajesh.
21. Even though the complainant has not stated anything about the refund of the amount by the OP has stated in the written argument that after filing of this complaint he has received the amount of Rs.10,00,000/- on 14.01.2019.
22. Admittedly the complainant has filed this complaint on 15.11.2023 after received the amount from the OP on 14.01.2019 itself.  The complainant has not at all stated anything about the refund of the amount made by the OPs in his favour.  The complainant would have stated about the amount received by him in the complaint itself.  The conduct of the complainant also clearly discloses that he has not approached this commission with clean hands.
23. Admittedly the complainant has booked the apartment on 18.01.2016 and paid the amount in two installments on 18.01.2016 and 10.02.2016. The OPs have refunded the amount as per Ex.R2 on 14.01.2019 itself. The complainant after received the entire refund amount has filed this complaint again seeking for the relief to direct the OP to pay or refund Rs.10,00,000/- being paid as advance towards the cost of the flat. Under these circumstances, the complainant is only entitle for an interest from the date of payment till refund of the amount from the OP with litigation expenses.  The OPs even though have collected the amount in January 2016 itself they have not at all commenced the project and finally they have refunded the amount after keeping the amount for more than two years.  If the complainant has invested the amount in any other project he would have got the house according to his wish and will. In view of this the complainant has suffered financial loss and also mental agony. Hence the complainant is entitle for the interest at 9% p.a., on Rs.10,00,000/- from the date of payment till 14.01.2019 with litigation expenses of Rs.10,000/-.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
24. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OPs are hereby directed to pay interest at the rate of 9% p.a., on the advance amount of Rs.10,00,000/- from the date of payment till 14.01.2019.
3. OPs are further directed to pay litigation cost of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.10,00,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 13^TH day of AUGUST 2024)

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

Documents produced by the representative of opposite party1 – R.W.1;