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

DATED 10^TH DAY OF JULY 2023

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 refund the entire amount of Rs.7,02,437/- along with 10% interest per annum from 21.10.2017 till realization.
2. Direct the OP to pay the complainant Rs.1,00,000/- for having committed deficiency in service by not delivering apartment bearing No.302, situated at I Floor, of the residential complex known as Dreamz Suprabatha measuring 950 sq. ft., of super built up area situated on Sy.No.8/8, measuring 14 guntas, of Thindlu Village, Yelahanka Hobli, Bangalore North Taluk, Bangalore Urban District, Bangalore.
3. Grant such other reliefs deemed fit.

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

It is the specific case of the complainant that he has contacted the OP for purchase of an apartment and submitted an application form on 20.12.2012 and had paid Rs.1,00,000/-  to the OP and the same was acknowledged by the OP vide receipt dated 20.01.2013 and entered into an MOU between the parties in the month of January.  On the date of execution of MOU the complainant has already paid Rs.5,25,000/- to the OP.

3. As per clause 5(a) and (b) of the MOU in the event of cancellation of the MOU, the purchaser under the MOU would be entitled to full refund of the money paid by him.  Subsequent to the said MOU the complainant has entered into an agreement of sale with the OP on 28.12.2013 and paid a sum of Rs.61,250/-  in addition to the amount already paid under the MOU.  Though the complainant has paid the considerable amount of sale consideration, the OP failed to make any progress under the project Suprabhatha I. The complainant enquired about the delay, in commencing the project, no satisfactory answers were given by the OP.  After having received part payment the OP failed to keep his promise and failed to make any progress even after much persuasion by the complainant.  Hence complainant requested the OP to refund the amount paid by him and cancellation letter.  The OP issued a confirmation letter stating that the construction would commence within three months from the date of issuance of commitment letter and even after lapse of three months, OP did not commence construction.  Hence the complainant demanded the money paid by him, accordingly issued a cancellation letter dated 21.10.2016 and the refund letter dated 31.07.2016. Though the OP has promised to return the money has not refunded. Hence complainant got issued legal notice on 16.12.2017, the notice was deliberately not received by the OP and the same was returned unserved with an endorsement that the addressee left. Hence this complaint.

4. Even though the complainant has taken the notice to the OP through paper publication the OP has not turned up and remained absent.

5. The complainant filed his affidavit evidence and relies on 14 documents. 

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

7. 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?

8. 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

9. Point No.1 AND 2: The complaint and the evidence and the documents produced by the complainant remained unchallenged.  Hence there is no reason to disbelieve the evidence and documents submitted by the complainant.  

10. It is clear from the evidence and the documents that the complainant has booked an apartment and paid advance sale consideration of Rs.7,02,437/- and entered into a Memorandum of Understanding with the OP.  After enquiry about the delay in starting the project the complainant came to know that the OP was postponing the same by giving one or the other reason and they have not started the project till date.  

11. It is further case of the complainant that as per the request and instruction of the OP he has filed cancellation form, on their assurance that they will return the advance amount received from the complainant along with interest. But the OP has not refunded the amount. Hence legal notice was issued by the complainant and the same is returned unserved with an endorsement addressee left.

12. The failure on the part of the OP in commencement of the project as per the MOU, and deliver the apartment and non refund of the amount paid by the complainant as assured by the OP is a clear deficiency of service on the part of the OP.  

13. In support of his contention the complainant was examined as PW1 and he has filed his affidavit evidence reiterated all the allegations made in the complaint. He has produced the Ex.P.1 is the copy of the application form, Ex.P2 is the copy of the receipt,  Ex.P.3 is the copy of the MOU, Ex.P4 is the copy of the Agreement of sale dated 28.12.2013, Ex.P.5 is the copy of Acknowledgement, Ex.P6 is the copy the receipts issued by OP, Ex.P7 is the statement of accounts,  Ex.P.8 is the confirmation letter, Ex.P9 is the copy of the cancellation letter, Ex.P10 is the copy of the order passed in CC No.1252/2016, Ex.P11 is the original copy of notice issued on behalf of the complainant, Ex.P12 original postal cover and Ex.P13 is the original acknowledgement.
14. Even though the complainant has paid an amount of Rs.7,02.437/- as advance sale consideration, the OP has played fraud on the complainant and not yet started the project. The OP has also given false assurance to the complainant stating that they will return the amount if the complainant filled the cancellation letter.  The complainant has given the cancellation letter to the OP.  The OP has neither returned the amount nor formed any layout as per their proposal and thereby committed deficiency of service, unfair trade practice.  Therefore the complainant is entitling for the relief claimed in this complaint. Hence we answer point No.1 in affirmative and 2 partly in affirmative.

15. 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.
2. OP is directed to refund the entire amount of Rs.7,02,437/- with interest at 10% p.a., from 21.10.2016 to till realization.
3. OP is further directed to pay compensation of Rs.1,00,000/- and Rs10,000/- towards litigation expenses 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.7,02,437/- 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 10^TH day of JULY, 2023)

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

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

NIL