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

DATED 23^rd  DAY OF JANUARY 2023

ORDER

SMT.JYOTHI N., MEMBER

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  get registered 02 sites measuring 30X40 ft. each in ‘Brundavan Prerana’ layout morefully described in the schedule and receipt of balance sale consideration or in the alternative OP to return a sum of Rs.4,80,000/- deposited by the complainant along with interest at 15% p.a.
2. Direct the OP to pay a sum of Rs.1,00,000/- as special damages towards delay in registration of sites.
3. Direct the OP to pay the litigation expenses, and
4. Pass  such other relief deems fit and proper under the circumstances of the case in the interest of justice and equity.

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

The complainant submits that OP in the allocation in forming residential sites in Brundavan properties. Further complainant states that during the course of allotment, OP represented the complainant have entered into sale agreement dt.15.06.2020 in the nature of MOU with one T.Nagarathna W/o Mahalingappa in respect of land bearing sy.no.27/1, 27/2 and 27/3 measuring 01 acre 13 guntas situated at Devamachohalli village, Tavarekere hobli, Bengaluru South Tq. And  another agreement dt.18.06.2020 with the one Sri Giriyappa S/o Siddegowda in respect of same land. In that property the OP has initiated to form residential layout called Brundhavan Prerana. The agreement of assignment of sale agreement dt.18.06.2020 is produced.

Further the complainant contended that he approached the OP, were OP impressed him by using their media advertisement on 14.06.2020. The complainant has paid sum of Rs.4,80,000/- for the purpose of allotment of 02 sites in his favour. The site bearing no.23  and site no.28 measuring 30X40ft each  E-W:40 and N-S:30 ft. totally measuring 1200sq.ft each particularly described in schedule and hereafter called scheduled sites and accordingly he had booked sites as per form dt.15.06.2020 paying booking amount of Rs.2,00,000/- through cheque no.000002 drawn on HDFC bank, Kammanahalli branch and booked another site as per form dt.18.06.2020 paying booking amount Rs.2,80,000/- through cheque bearing no.000003 drawn on HDFC Bank, Kammanahalli branch, bounded by East by: road, West by:site no.29, North by site:23 and South by: Site no.31 in Brundavan Prerana layout within 90 days and balance sale consideration for Rs.5,40,000/- to be payable at the time of registration.

 The complainant further stated that on 05.10.2020 the OP have sent commitment letter allotting site no.23 and 28 in favour of complainant and in the said letter the OP has extended the execution of sale deed within 90 days from 05.10.2020.

Further the complainant states that after the expiry of said period, he made several approaches to OP demanding and requesting to complete the sale transaction by receiving the balance sale consideration amount. The OP one and the other reason delayed to perform the assignment on their part. The complainant further states that the complainant always ready and willing to pay the balance sale consideration of schedule sites at the at the time of registration as per agreement. As per of the receipt of balance sale consideration of Rs.5,40,000/- to be payable at the time of registration of sale deed in favour of complainant and in the alternate direct the OP to return a sum of Rs.4,80,000/- paid by the complainant along with interest at 18% p.a. from 14.06.2020 till realization of the same. 

The cause of action for the complaint arose on 15.06.2020 when the complainant has contended the booking form and deposited 02 cheques on 15.06.2020 and on 18.06.2020 in favour of OP and the OP has received the amount of Rs.4,80,000/- and passed necessary receipts in favour of complainant. Subsequently, when the OP has fails to comply with the terms of documents executed by it and fail to get register of 02 sites in spite of legal notice dt.14.02.2022. The complainant further states that OP has committed deficiency in service as he has failed to get sale deed executed in his favour relating to suit schedule sites on receipt of balance sale consideration amount.  Hence the complainant has filed this complaint.

        8.     Even though the complainant has taken the notice to the OP through the paper publication, OP has not turned up and remained absent and placed exparte.

9.       The complainant filed his affidavit evidence relies on Exhibits P-1 to P10.

10.     Heard the arguments of advocate for the complainant. Perused the written documents.

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

1. Whether the complainant proves deficiency of service on the part of OP, if so, entitled for the relief sought for?
2. What order?

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

       Point No.1:  Affirmative in part

      Point No.2: As per final orders

REASONS

13.    Point No.1: The complaint and his affidavit evidence and the documents produced by the complainant remains unchallenged, hence there is no reason to disbelieve the evidence and documents submitted by the complainant.

14.     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 decision report in 2018(I)CPR 314(NC) in the case of M/s Singla Builders & promoters Ltd. V/s Aman Kumar Garg wherein it is held that

“Non-filing of written version to complaint before the Forum, amount to admission of the allegation leveled against him in consumer complaint”

15. Any how we place the relevance on the available materials on record. The available documents on record marked as Ex.P4 & P5 which are agreement of sales goes to show that the complainant has given the advance amount of Rs.4,80,000/- by way of cheque bearing no.000002 dt.15.06.2020 for Rs.2,00,000/- and another cheque no.000003 dt.18.06.2020 for Rs.2,80,000/-. In spite of the advance amount received the OP did not execute the sale deed in respect of site no.23 & no.28 on the receipt of the balance consideration amount. In this context the complainant approached the OP many time for registration of the sale deed is went in vain. Being disgusted, complainant has no other go except to seeking refund of earnest money or else for the registration of the sale deed. Option is left open for him as per decision reported Emaar MGF Land Ltd. & others 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 discretionary lies with the complainant whether he wants to take delivery of possession or seeks refund of earnest money.

16. In the light of decision cited supra, we come to conclusion that the complainant is entitled for the refund of the earnest money so far paid with interest at 10% p.a. by way of compensation with litigation cost of Rs.5,000/-. Accordingly we answer point No.1 in affirmative and point No.2 partly in affirmative.

17.    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. OP is directed to refund amount of Rs.4,80,000/- with interest at 10% p.a. by way of compensation from the date of payment  till realization with litigation cost of Rs.5,000/- to the complainant.
3. We also direct the OP to pay the above said amount to the complainant within 02 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 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 23^rd day of JANUARY, 2023)

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

Documents produced by the representative of opposite party – R.W.1:  -NIL-

SKA