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

DATED 13^TH DAY OF JUNE 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.12,50,000/- along with 10% interest per annum from 20.12.2017 till realization.
2. Direct the OP to pay the complainant Rs.1,00,000/- towards compensation for deficiency in service.
3. Grant such other reliefs deemed fit.

2. The case set up by the complainant in brief is as under:-
3. 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 20.11.2013 and had paid Rs.2,00,000/-  to the OP.  the complainant has also paid a sum of Rs.1,00,000/- to the OP  and entered into an MOU on 08.01.2014 and as on the date of entering into MOU complainant has already paid a sum of Rs.12,50,000/-. 
4. As per clause 4(a) 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.  Though the complainant has paid the considerable amount of sale consideration, th OP failed to make any progress at all.  The complainant approached the OP to commence construction at the earliest, however all his requests were futile and no satisfactory answers were given by the OP. hence complainant requested the OP to refund the amount paid by him and cancellation letter was issued on 20.01.2017 but the OP has to refunded the amount as per the terms and conditions of the MOU. 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 and placed exparte.

9.       The complainant filed his affidavit evidence and relies on 9 documents. 

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?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

12.   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

13.    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.  

14.     It is clear from the evidence and the documents that the complainant has booked an apartment and paid a sale consideration of Rs.12,50,000/- 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.  

15.     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.  

16.     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.  

17.     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 statement of accounts, Ex.P.5 is the copy of cancellation letter, Ex.P6 is the copy the legal notice, Ex.P7 is the postal cover,  Ex.P.8 is the acknowledgement Ex.P9 is the copy of the final order passed by this Hon’ble Tribunal.

18.     Even though the complainant has paid an amount of Rs.12,50,000/- on the date of entering into the Memorandum of Understanding, 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 entitle for the relief claimed in this complaint. Hence we answer point No.1 in affirmative and 2 partly in affirmative.

19.    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.12,50,000/- with interest at 10% p.a., from 20.12.2017 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.12,50,000/- 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 JUNE, 2023)

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

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

NIL