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

DATED 26^TH DAY OF DECEMBER 2022

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.9,71,071/- 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:-

The OP is the company incorporated under the Registrar of Companies and Disha Choudary being the MD of the companies by name Dreamz Infra India Pvt. Ltd., and Sachin Naik being the founder Chairman of companies.  The OP representing the company gave advertisement in daily newspapers and television channel with attractive benefits to the members of the general public to approach the OP for allotment of site/plots in various parts of Bangalore city, such as Kanakapura Road, Mysore Road, Electronic City, Hebbal, HAL, Bellandur etc., by putting huge sign boards with RCB cricket players advertising the name of the company on the t-shirts with company logo.  In the course of their representations and assurances the OP dishonestly induced the general public for allotment of either sites or plots in different locations of Bangalore city.  The OP deliberately and dishonestly perpetrated fraud by using forged documents as genuine and cheating the complainant and general public.

3.       It is the specific case of the complainant that he has contact with the OP for purchase of three BHK apartment which was to be a part of residential project known as Greens Suprabatha, measuring 1425 sq. feet of super built up area situated in Sy.No.8/8 measuring 14 guntas of Tindlu Village, Yelahanka Hobli, Bangalore North Taluk, for a total consideration of Rs.28,50,000/- and the complainant has paid a sum of Rs.7,00,000/- on different dates.

4.       It is further case of the complainant that the complainant with a font hope that OP will start the project and complete the same within a stipulated period and when the OP did not start the project the complainant started enquiring about the delay in starting the project.  The OP and her staff were postponing the same by giving one or the other reason and they did not start the project till date.  On the request and instruction of OP the complainant filled the cancellation dated 11.05.2016 and returned all the original documents to the OP.  The OP has issued a cheque for a sum of Rs.9,15,071/- which was inclusive of the interest on the sum paid by the complainant to the OP.  The said cheque was dishonored for want of funds.  

5.       It is further grievance of the complainant that the OP from the inception had no intention to develop the project and is involved in unfair trade practice and it is clear deficiency in the service offered by the OP.  The other purchasers have also approached before this Commission by filing various complaints and this commission has also allowed the complaint No.1252/2016 and other connected matters. He has also furnished the copy of the order passed in the above complaint by this Commission.  

6.       It is further case of the complainant that he approached the Jurisdiction Police Station and the police gave a printed format with filling the blanks to fill the complaint with an assurance that they would get back the money from the OP.  The complainant has also signed and lodged the complaint along with other investors. The police have registered the case for the offence punishable u/s 420 IPC against the OP and now the investigation taken by the CID police, Karnataka State.

7.       The complainant being harassed mentally, physically and financially due to bad and deficient service of the OP at last has got issued a legal notice on 26.12.2017 calling upon the OP to refund the amount but the notice returned with an endorsement the addressee left. Hence the complainant has filed this complaint.

8.       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 13 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 impressed by the advertisement given by the OP company has booked a 3 BHK flat measuring 1425 sq feet in the proposed project known as Dreemz Suprabatha and paid an advance sale consideration of Rs.7,00,000/- 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 and returned all the original documents to the OP on their assurance that they will return the advance amount received from the complainant along with interest within one month.  The OP has issued the cheque for a sum of Rs.9,15,071/- which was inclusive of the interest on the sum paid by the complainant.  The said cheque was dishonored. After that the OP closed their office and they are not available in any area of Bangalore.  After that he has lodged complaint before police against the OP and they have registered a complaint for the offence punishable u/s 420 IPC against the OP and her staff and now the investigation is taken by the COD Police.  The legal notice issued by the complainant returned unserved with an endorsement addressee left.  

16.     The failure on the part of the OP to form the sites in the layout has agreed and to execute the sale deed and deliver the site non refund of the amount paid by the complainant as assured by the OP is a clear deficiency of service.  

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 swapping letter for swapping flat from Sumadhur to Suprabatha, Ex.P.2 is the true copy of the MOU, Ex.P3 is the copy of the receipts, Ex.P4 is the bank statement of HDFC Bank.  ExP5 and P6 are the commitment letter, Ex.P7 is the cancellation letter, P8 is the copy of the cheque issued by the OP for Rs.9,15,071/-, Ex.P9 is the copy of the return memo, Ex. P.10 is the copy of the order passed by this commission in CC No.1252, 1253 and 1254/2016, Ex.P11 is the copy of the legal notice, Ex.P.12 is the returned postal cover, Ex.P.13 is the acknowledgement.

18.     Even though the complainant has paid an advance amount of Rs.7,00,000/- on the date of entering into the Memorandum of Understanding out of the sale consideration of Rs.28,50,000/- 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 she will return the advance amount if the complainant  filled the cancellation letter and return all the original documents.  The complainant has given the cancellation letter with all original documents to the OP.  The OP has issued cheque for Rs.9,15,071/- after collecting all the original documents with cancellation letter the cheque was dishonored.  After that the OP closed their office and left Bangalore.  Inspite of lodging complaint before the Police, 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 in part.
2. OP is directed to refund the entire amount of Rs.9,71,071/- with interest at 10% p.a., from the date of complaint 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.9,71,071/- 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 26^TH day of DECEMBER, 2022)

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

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

NIL