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

DATED 30^TH DAY OF NOVEMBER 2024

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 complainant Rs.4,09,996/- collected with interest at 24% p.a., from the date of payment till the date of realization.
2. Direct the OP to pay Rs.10,00,000/- to the complainant towards escalation price to be incurred by the complainant.
3. Pass such other direction that this Hon’ble Commission deems fit

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

It is the case of the complainant that he had booked a site No.157 in the project called as “MAX ORCHIDS” Phase III, situated at Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk, Bengaluru Rural District, developed by the OP and paid a sum of Rs.4,09,996/- through cheques out of the sale consideration of Rs.7,20,000/- as on the date of agreement 22.11.2014 with an intention to own a residential site around Bangalore. The OPs have agreed to complete the transaction within 18 months from the date of agreement. Thereafter there is no progress in the developmental works. The OPs have failed to perform their part of the contract and obligation without any justifiable reason.

3. Complainant requested for the copies of all the title deeds approval letters and other related documents pertaining to the residential layouts but the OP assured that all statutory approvals like BIAPPA and other will be obtained within six months and immediately after obtaining the approvals the documents will be furnished to the complainant.   

4.       The OP has assured the complainant that said project will be completed within a period of six months. After receipt of the amount, OP kept quite for long time without doing any progress in formation of the layout, the complainant approached and asked about the progress of the approval and formation of the layout.  The OP kept postponing the same by stating that same will be ready by one month and dragged the matter for years and did nothing to obtain the approvals. Hence complainant having left with no alternative has sought for refund of the amount paid by her along with the applicable interest and damages.  On her request the OP has promised to refund the said amount. Hence complainant submitted the representation dated 13.05.2023 requesting the OP to process her request for refund of the amount, but even after request the OP has failed to refund the sale consideration. The OP also avoided the complainant to visit his office and used to avoid complainant’s calls. Hence complainant got issued legal notice on 15.06.2024 but the OP neither complied nor replied. Hence this complaint.

5.       After registration of the complaint, notice has been issued to OP.  After receiving notice, OP has appeared through the counsel and filed version. Since the complaint is vexatious and frivolous is not maintainable either in law or on facts and liable to be dismissed in lemine.

6.       The allegations made in complaint with respect to booking of site No.157 in Max Orchards Phase III the for total sale cost is Rs.7,90,000/- and complainant paid Rs.4,09,900/- advance amount denied as false.

7.       The OP always ready and willing to execute the absolute sale deed in favour of the complainant either in the “Max Orchids III” project which are fully developed by obtaining all government approvals but the complainant not ready to register.  When the complainant violated the terms and conditions of booking form and is not ready and willing to purchase the sites ready with full consideration to get absolute sale deed, unfair trade practice and deficiency of service on the part of the OP does not arises. Hence, pray for dismissal of the complaint.

8.       Complainant has filed his affidavit evidence.  The complainant has produced documents which are marked as Ex.P1 to Ex.P12. 

9.       Heard the arguments of the complainant. Perused the written arguments. OP counsel submits that they have no evidence and they also submits that the arguments of the OP is taken as heard. Hence arguments of OP is taken as heard.

10.     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?

11.   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

12.   Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint and documents 1 to 12.

13.   We have perused the documents produced by the complainant.  Copy of the  booking form marked as Ex.P.1, copy of the layout plan marked as Ex.P2, Copies of receipts, marked as Ex.P3 to P7, Copy of the agreement of sale dated 22.11.2014, marked as Ex.P8, Copy of the representation, marked as Ex.P9, Legal notice marked as Ex.P10, postal receipt and acknowledgement, marked as Ex.P11 and P12.

14.    We have perused the averments, affidavit evidence and documents of the complainant, it is crystal clear that complainant with an intention to purchase site, approached the OP and paid advance amount of Rs.4,09,996/- by way of cheque. After receiving the above said advance sale consideration from the complainant, the OP had not taken proper steps as guaranteed and the OP for development of the Max Orchards III project.  The complainant approached the OP requesting them to develop the project and to sell schedule property to the complainant.  But, the OP has not at all heeded to the request of the complainant and it has willfully neglected the development of project.  The OP company failed to execute the sale deed of the property in favour of the complainant and thus deprived the complainant of having ownership of the property and it has cheated the complainant by making misrepresentation and false assurances and it amounts to unfair trade practice and deficiency of service and ultimately complainant requested the OP to refund a sum of Rs.4,09,996/- the advance sale consideration made along with  interest.

15. The legal notice dated 15.06.2024 was also issued to OP, served on OP.  The said legal notice, postal receipt and acknowledgement are produced as Ex.P10 to P12.

16. The attitude of the OP company is only making of false promises and collecting of advance amount and making false assurances and all this attitude of OP amounts to unfair trade practice, misrepresentation, cheating.  The complainant has suffered hardship, mental agony and financial loss due to the unfair trade practice.

17. From the available materials on record, it is crystal clear that OP having received a sum of Rs.4,09,996/- from the complainant till date the OP neither developed the project nor refunded the amount in spite of service of notice.  The act and deeds of OP amounts to deficiency of service on his part, as he has collected the amount by giving false assurances of the development of the land into residential plots and failed to execute the sale agreement and also failed to refund the advance amount. 

18. Hence we are satisfied that the complainant proved deficiency in service on the part of OP.  Under the circumstances, we are of the considered view that OP is liable to refund the advance amount of Rs.4,09,996/- to the complainant along with interest at 10% p.a. by way of compensation from the date of payment till realization and also direct to pay litigation cost of Rs.20,000/-.  Accordingly, Point No.1in the affirmative and Point No.2 partly in the Affirmative.

19. Point No.3:  In the result, we pass the following:

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.4,09,996/- with interest at 10% p.a., from the date of respective payment till realization.
3. OP is further directed to pay a sum of Rs.20,000/- towards litigation expenses to the complainant.
4. 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.4,09,996/- 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 30^TH day of NOVEMBER, 2024)

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

Documents produced by the representative of opposite party;

NIL