BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE URBAN

18^th DAY OF MAY 2016

               PRESENT:- SRI. P.V SINGRI                      PRESIDENT

                                SMT. M. YASHODHAMMA         MEMBER

     SMT. P.K SHANTHA                 MEMBER

                  O R D E R

SMT. M. YASHODHAMMA, MEMBER               

This complaint is filed by the complainant in person U/s.12 of the Consumer Protection Act, 1986 praying for an order against Opposite Party (herein after referred as OP) to refund booking amount of Rs.10,00,000/- along with interest at the rate of 11% p.a, compensation of Rs.1,00,000/- towards mental agony, legal and travelling expenses totaling to sum of Rs.11,83,805/- on the allegations of deficiency in service.

2. The brief averments made in the complaint are as follows:

OP is a developer.  Complainant with an intention to own two bed room flat of super built-up area 1330 sq. ft. @ Rs.4,285/- per square feet in their proposed project namely “MAHAVATAR HEIGHTS” entered into a Investor’s Agreement dated 12.06.2015.  At the time of booking, OP assured that the BBMP approval is almost over and construction work will start by July 2015.  The total cost of the flat booked was Rs.56,99,050/-.  At the time of initial discussion with OP, complainant informed OP that he had only Rs.10,00,000/-.  Hence, OP agreed to enter into an agreement with that amount and remaining 20% can be paid once the construction work started.  Accordingly, entered into Investor’s Agreement dated 12.06.2015.  Afterwards OP provided the legal documents to the complainant which shows that OP had not yet paid some amount to the land owner.  In the month of July 2015, OP called the complainant over phone demanding additional amount of Rs.2,00,000/- but failed to update anything about the construction, constructing date or progress of the project.  After continuous follow up OP failed to provide any details except telling that the construction will start soon.  OP failed to reply to the e-mails till September.  When complainant asked about the proof of BBMP approval then OP informed that complainant not paid remaining Rs.2,00,000/- so OP will not be able to provide any information until complainant paid the same.  Since complainant has already paid a sum of Rs.10,00,000/- he should be kept informed about the project progress which OP has not done at any point of time.  Hence, complainant decided to cancel the booking and asked OP to refund amount as per the Investor’s Agreement along with 11% interest if complainant cancel the booking before BBMP approval.  Inspite of repeated e-mails and correspondence, OP denied to pay interest @ 11% p.a and asked the complainant to submit all the original documents, original agreements and receipts.  After receipt of the original documents, OP informed that he will refund only Rs.10,00,000/- booking amount with a post dated cheque of December 2015.  Complainant sent a notice/reminder dated 30.10.2015 calling upon OP to refund the advance amount of Rs.10,00,000/- along with interest @ 11% p.a within 15 days failing which he will approach the Consumer Court for necessary action.  Inspite of receipt of the notice dated 02.11.2015 OP neither give any reply nor complied the demands made therein.  Hence, complainant felt deficiency in service against OP.  Under the circumstances, he is advised to file this complaint against OP for appropriate relief.  

3. After registration of the complaint, notice was sent to OP.  One Mr.Paresh Rao M, on behalf of OP appeared before the Forum and reported that matter will be settled by 22.02.2016.  OP failed to contest the matter by filing version or affidavit evidence.  Hence, OP is placed ex-parte and proceeded the case for filing affidavit evidence of complainant.

4. In support of the complaint averments, Mr.Anshuman Saraswat, who being the complainant filed his affidavit by way of evidence reiterating the complaint averments and produced documents.

5. We have perused the documents produced by the complainant.  Document No.1 is copy of Investor’s Agreement dated 12.06.2015 entered into between the complainant and OP.  As per the clause-6 of the agreement, OP has acknowledged the receipt of Rs.2,00,000/- by way of cheque dated 12.06.2015 and a sum of Rs.8,00,000/- by way of cheque dated 15.06.2015, both drawn on HDFC Bank, Bangalore.  Both OP and complainant have signed the agreement.  As per clause-9 of the agreement, OP has agreed to pay interest at the rate 11% p.a in case OP failed to commence the project.  Document No.2 & 3 are the receipts issued by the OP to the complainant dated 12.06.2015 and 15.06.2015 for having received a sum of Rs.2,00,000/- and Rs.8,00,000/- from the complainant.  Document No.4 is the copy of reminder/notice of the complainant dated 13.10.2015 calling upon OP to refund Rs.10,00,000/- along with interest @ 11% p.a within 15 days failing which he will approach the Consumer Court for necessary reliefs.  Document No.5 is postal track record for having served the letter to OP on 02.11.2015.  Document No.6 is the e-mail correspondences made by the complainant dated 03.09.2015, 04.09.2015, 14.10.2015, 26.10.2015, 27.10.2015, 29.10.2015, 30.10.2015, 31.10.2015, 02.11.2015, 04.11.2015 & 05.11.2015.

6. On perusal of oral and documentary evidence produced by the complainant, it is crystal clear that complainant with an intention to purchase two bed room flat in the proposed project of OP namely “MAHAVATAR HEIGHTS” entered into a Investor’s Agreement dated 12.06.2015.  The total cost of the booked flat was Rs.56,99,050/-.  Complainant paid a sum of Rs.10,00,000/- as per document No.1, 2 & 3 agreement and receipts.  Inspite of repeated requests and e-mail correspondences, OP failed to inform about the progress of the project.  Hence, complainant sent notice/reminder letter dated 30.10.2015 seeking refund of the amount paid along with interest @ 11% p.a within 15 days failing which, he will approach the Consumer Court.  Inspite of receipt of notice, OP neither replied to the notice nor refund the amount.  Hence, this complaint.

7. As per memo dated 19.03.2016 filed by the complainant, OP has paid to the complainant by way of transfer in RTGS a sum of Rs.2,00,000/- on 19.03.2016 towards refund of the part of the advance amount paid and further prays that still OP is liable to pay balance amount of Rs.8,00,000/- along with interest @ 11% p.a on the entire advance amount of Rs.10,00,000/- till the date of final settlement.  Both the parties have signed the order sheet dated 19.03.2016.

8. As per clause-9 of the Investor’s Agreement, OP has agreed to pay 11% p.a interest in case if OP is unable to commence the project.  As per the available materials on record, OP has failed to obtain statutory approvals from the competent authority on time and failed to commence the project.  OP has failed to inform the complainant about the progress of the project and OP has denied to pay interest @ 11% p.a to the complainant.  Hence complainant is before this Forum.

9. As per clause-9 of the Investor’s Agreement, since OP has agreed to pay interest @ 11% p.a, denial of the same and retention of the advance amount inspite of repeated requests and service of notice amounts to deficiency in service on the part of the OP.  We are satisfied that the complainant proved deficiency in service on the part of the OP.  Under the circumstances, we are of the considered view that, OP is liable to refund balance amount of Rs.8,00,000/- along with interest @ 11% p.a on the entire amount of Rs.10,00,000/- from 16.06.2015 till realization.  The act of OP in not refunding the amount, made the complainant to approach this Forum by wasting the time and energy apart from incurring further expenses.  Hence, complainant is entitled for compensation of Rs.10,000/- towards mental agony and hardship caused to the complainant along with litigation cost of Rs.2,000/-.  Accordingly, we proceed to pass the following:

O R D E R

The complaint filed by the complainant is allowed in part.  OP shall refund Rs.8,00,000/- (Rupees Eight Lakhs only) together with interest @ 11% p.a on the entire amount of Rs.10,00,000/- from 16.06.2015 till the date of realization along with compensation of Rs.10,000/- towards mental agony, hardship caused to the complainant.  Further OP is directed to pay litigation cost of Rs.2,000/- to the complainant.

This order shall be complied within 30 days from the date of its communication.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 18^th day of May 2016)

 MEMBER                             MEMBER                  PRESIDENT

     Vln*  

COMPLAINT No.1894/2015

Complainant                 -        Anshuman Saraswat,

Hyderabad-500084

      -vs-

Opposite Party              -        M/s. CMRS DEVELOPERS,

Bangalore-560037.

Witnesses examined on behalf of the complainant dated 19.03.2016.

1. Mr.Anshuman Saraswat

   Witnesses examined on behalf of OP – Nil.

   Documents produced by the OP - Nil

 MEMBER                           MEMBER                        PRESIDENT

Vln*