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

16^TH DAY OF FEBRUARY 2016

O R D E R

SRI.P.V.SINGRI, PRESIDENT

This complaint is filed by the complainant under Section 12 of Consumer Protection Act, 1986 against Opposite Part (herein after referred as OP) with a prayer to direct the Opposite Party to repay her advance amount of Rs.1,00,000/- paid by her together with interest, compensation and cost of litigation.

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

The Complainant approached OP a builder and developer and booked a residential site measuring 30 x 40 feet in residential layout to be developed by OP under the name and style “Max Nandana” in the limits of Devanahalli.  The sale consideration was Rs.13,80,000/-.  At the time of booking the complainant paid a initial payment of Rs.1,00,000/- by way of cheque dated 04.01.2013 for which the OP had issued receipt.  At the time of receiving the advance amount the complainant was informed that the layout will be developed and the site will be ready for registration within three months and further informed that she would be informed about the same at which time she has to make payment of balance consideration of Rs.12,80,000/-  and get the sale deed registered in her name.  The OP thereafter never informed about the progress of the project that she was ready to pay the balance sale consideration amount.  Whenever, the complainant contacted the officials of the OP she was given either vague or untenable replies.  Therefore, the complainant sent more than six e-mails between 19.06.2013 to 24.01.2014 requesting OP to return her advance amount.

3. In response to the e-mail OP sent a reply e-mail dated 02.01.2014 stating that they will refund the booking amount within 15^th of January and asked her to wait till that date.   However, OP failed to keep up their promise.  Therefore, the complainant got issued a legal notice dated 22.07.2014 through their counsel.  The OP replied to the said notice asking the complainant to come forward for amicable settlement.  The complainant met the officials of OP on 20.12.2014 in their office and informed that a demand draft towards refund of the initial deposit along with interest will be sent to her by 23.12.2014.  However, the complainant did not receive demand draft thereafter till the filing of the complaint.  Therefore, the complainant was compelled to approach this Forum. 

4.  For the aforesaid reasons, the complainant prays for an order directing the OP to refund her initial deposit amount of Rs.1,00,000/- together with interest at 24% per annum from 02.01.2013 till the date of realization, Rs.50,000/- towards deficiency in service and cost of litigation. 

5.  In response to the notice issued OP entered their appearance through their counsel and filed version admitting  the payment of initial deposit of Rs.1,00,000/- by the complainant by way of cheque on 04.01.2013, and further contending as under:-

According to the terms and conditions of the booking the agreement of sale would be executed within 20 days from the date of booking depending on the project booked only after payment of 30% of the total sale consideration.  In the event of cancellation without valid reason 15% of the booking amount will be deducted towards service and transport charges.  The complainant has signed the booking form after reading and understanding the terms and conditions mentioned therein.  Since, the complainant has failed to pay 30% of total sale consideration, no agreement was executed in her favour.  Since she has cancelled the booking without valid reason she is not entitled to the entire deposit amount.  The legal notice issued by the complainant is suitably replied.  In the mean while on 03.01.2015, prior to the receipt of notice of this complaint the OP obtained a DD for a sum of Rs.1,00,000/- in favour of complainant which she has received on 04.01.2015.  As per terms and conditions of the booking form, the complainant is not entitled to any interest on the said amount, much less compensation is claimed.   Therefore, the OP prays for dismissal of the complaint. 

6. After the version was filed by the OP, the complainant was called upon to file her affidavit evidence.  Accordingly, she filed her affidavit evidence reiterating the allegations made in the complaint and admitting the receipt of DD in a sum of Rs.1,00,000/- subsequent to filing of the complaint.  OP also filed the affidavit evidence of the Deputy General Manager Mr.Roopesh Sulegai in support of the averments made in the version.  Written arguments have been filed by both the sides. 

7. On the rival contention of the both the parties, the points that arises for our determination are as under:

1. Whether, the complainant proves deficiency in service on the part of the OP as alleged in the complaint?

2. What relief or order?

8. Perused the allegations made in the complaint, the averments made in the version, the sworn testimony of both the parties, written submissions, various documents relied upon by both the parties, and other material placed on record.

9. Our answer to the above points:

10. POINT NO.1:  The transaction between the parties is admitted.  OP admits receipt of Rs.1,00,000/- from the complainant by way of cheque on 04.01.2013.  OP has also issued a receipt for the receipt of the said amount.  As could be seen from the material placed on record, after receipt of the registered notice of this complaint OP has refunded the said booking amount of Rs.1,00,000/- to the complainant by way of DD on 04.01.2015.  The complainant acknowledges the receipt of the same.

11. According to the complainant as per the terms and conditions of the booking OP ought to have executed agreement of sale within 20 days from the date of booking or stipulated period.  Admittedly, OP has not executed agreement of sale in favour of the complainant either within 20 days or within a reasonable time from the date of receipt of booking amount.  Subsequent to receipt of booking amount OP never bothered to intimate the complainant about the progress made in formation of the said layout.  When the OP failed to execute an agreement of sale within 20 days from the date of booking or within a reasonable time in terms of the booking form, the complainant became suspicious about the conduct of OP.  When the complainant did not get any satisfactory reply to all her enquiries made with OP regarding progress made in the formation of the layout she decided to cancel her booking and demanded the OP to refund the booking amount of Rs.1,00,000/-.   As per the terms and conditions of the booking form, the OP is obliged to refund the booking amount within 30 working days from the date of cancellation.  However, the OP did not refund the booking amount of Rs.1,00,000/- either within 30 working days from the date of cancellation or thereafter.

12. The conduct of the OP in failing to inform the complainant about the progress made in the formation of the layout, in failure to execute the agreement of sale within 20 days or within a reasonable time from the date of booking by receiving the remaining amount of 30% of the total consideration, or refunding the booking amount within 30 working days amounts to deficiency in service.  The complainant has been compelled to cancel the booking only because of indifferent attitude of the OP and not on her own volition.  Therefore, OP is liable to pay interest on the said booking amount of Rs.1,00,000/-. Further OP is also liable to compensate the complainant for hardship, inconvenience and mental agony.  OP without there being any valid cause unauthorizely retained the said booking amount of Rs.1,00,000/- for more than one year.

13. The complainant has received the booking amount of Rs.1,00,000/- on 04.01.2015 from the OP.  OP is liable to pay interest at 9% per annum on the said amount from the date of receipt till 04.01.2015 and the OP shall have to be directed to pay compensation of Rs.10,000/- for causing mental agony, inconvenience and untold hardship to the complainant apart from litigation cost of Rs.4,000/-.

14. The order could not be passed within the stipulated time due to heavy pendency.  In the result we proceed to pass the following:-                  

                                           O R D E R

1.           The complaint filed by complainant u/s.12 of the Consumer Protection Act, 1986 is allowed in part. 

2.           The OP is directed to pay interest at the rate of 9% per annum on Rs.1,00,000/- from 04.01.2013 to 04.01.2015 to the complainant.

3.           Further OP is directed to pay compensation of Rs.10,000/- to the complainant together with litigation cost of Rs.4,000/-.

4.           The OP shall comply with the order of this Forum within a period of four weeks from the date of communication of the order. 

5. Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 16^th day of February 2016)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

C.C.No.2225/2014

Witness examined on behalf of the complainant dated 20.05.2015 Smt.Archana Mathur

Witnesses examined on behalf of the OP Sri.Roopesh Sulegai,  dated 29.06.2015

MEMBER                               MEMBER                              PRESIDENT