BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 07^th DAY OF NOVEMBER 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

These two complaints have been filed by two separate complainants U/s.12 of the Consumer Protection Act, 1986 against one and the same Opposite Parties (herein after referred as OPs) claiming refund of advance amount paid by them to OPs together with interest, damages and cost of litigation.

Since the issues involved in both the complaints are one and the same and since OPs in both the case are one and the same, both these complaints are taken up for disposal under this common order.

2. The brief averments made in the complaints are as under:

That the OP-1 is the booking agent of OP-2.  That OP-1 approached the complainants and persuaded to him to purchase a villa/plot in Hansika Projects, situated in survey No.197/198/200, situated at Jadigenahalli Village, Hoskote Malur Road, Hoskote, Bangalore and based upon the representation and assurance the complainant Ayan Banerjee booked a villa No.226 and plot No.250 both measuring 30x50 feet each for a total sale consideration of Rs.48,30,000/- for Villa and Rs.16,24,500/- for plot in the above said project and thereafter on 13.11.2011 the said complainant paid a total sum of Rs.3,00,000/- to OPs.1 & 2 as initial payment/booking amount for the purchase of above said villa and plot under two separate cheques both dated 13.11.2013 drawn on HDFC Bank.

The complainant Juby Balakrishnan, booked a plot No.105, measuring 30x40 feet for a total consideration of Rs.35,50,000/- in the above said project and on 13.11.2013, he paid a total sum of Rs.1,00,000/- as initial payment/booking amount towards purchase of the said plot by way of cheque dated 19.11.2013 in favour of OPs.  The OPs have received the above said amounts from both the complainants and issued them receipt.

That as per the promise/assurance by the OPs they were to obtain all necessary permission from the competent authority in the month of January 2014, however OP-2 failed to commence the project till today and whenever the complainants approached them both the OPs did not provide any satisfactory answers and also started avoiding them.  That since OPs failed to perform their part of obligation and commitment in obtaining necessary approval, sanctions etc., the complainants after much discussion with OP cancelled the booking on 13.06.2014 and on 16.07.2014 respectively and requested the OP to refund the advance amount paid by them.  That the OPs agreed for the same and promised to refund the amount within 90 days.  OP-1 issued post dated cheques in favour of complainant Ayan Banerjee bearing No.672706 and 672710 for a sum of Rs.1,00,000/- each dated 29.09.2014, drawn on Vijaya Bank, HBR Layout Branch, Bangalore and when he presented the said cheuqes both cheques have bounced because of insufficient funds on 09.10.2014 and immediately the said complainant informed OPs about the same and thereafter OP-1 paid a sum of Rs.50,000/- to the complainant and promised to pay the balance amount of Rs.2,50,000/- within a week.

That the OPs refunded a sum of Rs.50,000/- to the complainant Juby Balakrishnan and promised to pay balance amount within a week.  However, even after lapse of one week and thereafter the OPs failed to refund the balance amount to both the complainants despite repeated requests and e-mails.  That the conduct of OPs in failure to refund the balance advance amount amounts to deficiency of service.  Since, OPs failed to refund the balance amount even after several months the complainants were compelled to got them issued legal notice calling upon them to pay the remaining balance amount without any further delay.  The notices sent through registered post have been served on the OPs.  OPs have replied to the said notice by giving evasive reply.   Therefore, the complainants were forced to approach the Forum for redressal.  Complainant Ayan Banerjee prays for an order directing OP to refund him a sum of Rs.1,50,000/- together with interest @ 24% p.a from the date of receipt, compensation of Rs.2,00,000/- for causing mental agony, harassment etc., together with cost of litigation.  Whereas complainant Juby Balakrishnan prays for an order directing the OPs to refund him balance amount of Rs.50,000/- together with interest @ 24% p.a, damages of Rs.1,00,000/- for causing mental agony, harassment etc., together with litigation cost.

3. OPs in response to the notice appeared through their advocate and filed their version taken up almost similar and identical contentions in both the cases contending as under:

It is true that the complainants have paid advance amount/booking amount in respect of property mentioning in the respective complaints.  But it is false to allege that the OPs were to start project in the month of January 2014 by obtaining all necessary permissions.  That the complainants are not entitled for refund of any amount since the amount paid by them is towards a concluded contract.  Though OPs are not liable to refund any amount to the complainants but on the representation made by the complainants that they need it for their urgent personal expenses OPs on humanitarian grounds refunded certain amount to the complainants.  That the OPs are not liable to refund the advance amount as claimed by the complainant and also not liable to pay any interest or damages.  That there is no any deficiency of service on the part of OPs.  Only as a good gesture OP-2 has refunded certain advance amount to the complainants in view of cancellation of the booking made by them.  That there is no cause of action to file the complaint and the one made out is imaginary.  Therefore, OPs pray for dismissal of the complaint with cost.

 4. The points that arise for our determination in this case are as under:

        5. The complainants as well as OP-2 tendered their affidavit evidence in support of their respective contentions produced certain documents.  Written arguments have also been filed by the complainants.  We have also heard oral arguments.

6. Our answer to the above issues are as under:

REASONS

7.  It is not in dispute that OP-1 is a booking agent of OP-2 a land developer and builder.  It is also not in dispute that complainant Ayan Banjerjee booked villa bearing no.226 and plot no.250 in a project floated by OPs by paying booking amount of Rs.3,00,000/- by way of two cheques dated 13.11.2013 drawn on HDFC Bank.  Similarly the OPs have received a sum of Rs.1,00,000/- from the complainant Juby Balakrishnan towards plot No.105 in the Hansika Projects floated by them in the limits of Jadigenahalli Village, Hoskote Malur Road, Hoskote, Bangalore.  Both the complainants have produced the copies of cheques as well as xerox copies of receipt issued by OP-2 for having received the above mentioned booking amount from both the complainants.

8. The complainant’s claim that the OPs promised them to commence the project work by January 2014 after obtaining necessary permissions and sanctions from the competent authorities.  However, the project failed to take off even after January 2014 and whenever they approached OPs they went on giving evasive answers and ultimately failed to commence the project.  Therefore, they decided to cancel the booking, accordingly communicated the OPs in writing.  The cancellation of booking made by them in respect of the properties mentioned above.  OPs admit the cancellation of the booking made by the complainant as stated in their respective complaints.

9. Complainants claims that after receipt of the communication of cancellation of the booking the OPs promised them to refund the advance amount within a week’s time however they failed to do so and after continuous persuasion OPs issued two post dated cheques dated 29.09.2014 for Rs.1,00,000/- each in favour of complainant Ayan Banerjee drawn on Vijaya Bank, HBR Layout, Bangalore and when the said cheques were presented to the Bank for encashment both cheques were dishonoured for insufficient funds and immediately complainant Ayan Banerjee informed the same to the OPs and OPs paid him a sum of Rs.50,000/- and promised to pay the balance amount of Rs.2,50,000/- within a week.  However they failed to pay the balance amount within a week and after great pursuation complainant received Rs.1,00,000/- out of balance amount of Rs.2,50,000/- by way of cheque which was encahsed by the complainant but OPs failed to pay the balance amount of Rs.1,50,000/- till date.  OPs admit the refund of Rs.1,50,000/- to the complainant Ayan Banerrjee.

10. In pursuance of the cancellation of booking by the complainant Juby Balakrishnan, the OPs have refunded him Rs.50,000/- out of Rs.1,00,000/- and promised to refund the balance amount of Rs.50,000/- within a week.  However they have not refunded the said amount so far.  OPs admit the refund of Rs.50,000/- to complainant Juby Balakrishnan.

11. OPs denied their liability to pay balance amount on the ground that the amount paid by the complainants is towards a concluded contract.  We don’t understand what is meant by concluded contract.  Admittedly no agreement of sale or the sale deed is executed in favour of the complainant in respect of the properties mentioned above.  No where OPs claimed that they have commenced the project within time as claimed by the complainants in the complaint or within a reasonable time after obtaining necessary approvals, sanctions from the competent authorities.  It is apparent from the averments made in the version that till today they have not commenced the project and have are in a position to hand over the plots to the complainants.  The OPs having failed to commence the project within a reasonable time are not entitled to retain the booking amount.  When the OPs have accepted the cancellation of the booking by the complainants they are duty bound to refund the advance amount in terms of the booking form submitted to them by the complainants.  Since OPs have failed to commence the project within a reasonable time and till today certainly they are liable to refund the balance booking amount to the complainant.  The OPs having refunded part of the booking amount to the complainant now cannot deny their liability to pay the balance amount.  Since the OPs have retained the said amount illegally they are liable to pay the said amount to the complainants together with interest @ 18% p.a.

12. The conduct of OPs in refusing to pay the balance booking amount to the complainants certainly amounts to deficiency of service which must have caused the complainants great inconvenience and mental agony.  Therefore OPs are liable to pay damages/compensation to both the complainants.  In the facts and circumstances of the case, we feel it appropriate to direct the OPs to pay compensation of Rs.20,000/- to complainant Ayan Banerjee and Rs.10,000/- to complainant Juby Balakrishnan together with litigation cost of Rs.6,000/- each.  Accordingly point No.1 is answered.

13. The order could not be passed within the stipulated time due to heavy pendency.   

14. In view of the discussions made above, we proceed to pass the following:

  O R D E R

The complaint Nos.2089/2014 & 2090/2014 are filed by the complainants U/s.12 of the Consumer Protection Act, 1986 is allowed in part. 

OPs are directed to refund a sum of Rs.1,50,000/- to complainant Ayan Banerjee in complaint No.2089/2014 together with interest @ 18% p.a from the date of actual receipt till the date of realization.  OPs are further directed to pay compensation of Rs.20,000/- together with litigation cost of Rs.6,000/-.

OPs are directed to refund a sum of Rs.50,000/- to complainant Juby Balakrishnan in complaint No.2090/2014 together with interest @ 18% p.a from the date of actual receipt till the date of realization.  OPs are further directed to pay compensation of Rs.10,000/- together with litigation cost of Rs.6,000/-.

OPs shall comply the said order within four weeks from the date of communication.

Furnish free copy of this order to both the parties.

This original order shall be kept in complaint No.2089/2014 and a copy of it shall be placed in other connected file.  

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 07^th day of November 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant/s dated 11.07.2016.

Documents produced by the complainant:
    (Complaint No.2089/2014)

Documents produced by the complainant:
    (Complaint No.2090/2014)

Witnesses examined on behalf of the Opposite party/s - 2 dated 05.05.2015.

1. Sri.Jayasheela Reddy.  

Document produced by the Opposite party/s - Nil

MEMBER                            MEMBER                    PRESIDENT

Vln*