BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE URBAN

    29^th DAY OF JANUARY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This is a complaint filed under Section 35 of C.P.Act, 2019 seeking the following reliefs:-

(i) Directing the Op to pay booking amount of Rs.3,00,000/- with interest from the date of booking till realization.

(ii) And directed to pay the compensation of Rs.3,00,000/- for deficiency of service to complainant as being consumer and towards mental harassment sustained by the complainant as being consumer of OP company,

(iii) Costs and litigation expenses of this complaint,

(iv) Such other relief/reliefs as this Hon’ble Forum deem fit under the circumstances of the case.

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

The complainant has paid Rs.1,00,000/- on 08.12.2013 and Rs.2,00,000/- on 20.12.2013 to the OP towards part of cost of the site measuring 30 x 0 ft.  The OP neither allotted the site nor refunded the amount.

3. It is further case of the complainant that subsequently she had requested the OP to refund her advance money by cancelling booking of site.  But, OP neither cancelled the booking of site nor refunded the advance money.  This act of the OP amounts to deficiency of service.

4. After receipt of notice, the OP appeared through its counsel and filed version.  The OP denies booking of site No.92 and payment of Rs.3,00,000/-.  The OP has been ready and willing to execute absolute sale deed in favour of complainant either in Max Marwell fully developed project or any other side.  The OP is not liable to pay interest, compensation and litigation cost as complainant was not ready to purchase the site.  The complainant has violated the terms and conditions of the booking.  Therefore, OP requests to dismiss the complaint.

5. The complainant has filed affidavit evidence of her power of attorney holder/son and relied on certain documents.  No evidence is adduced on behalf of the OP. 

6. Heard the arguments of advocate for the complainant only.  No argument is advanced on behalf of OP. We perused the records including written arguments of the complainant.  

7. 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?

8. Our answers to the above points are as under:

       Point No.1:  In the Affirmative.

      Point No.2: Affirmative in part.

      Point No.3: As per final orders

REASONS

9. Point Nos.1 and 2:  These two points have been taken into consideration to avoid the repetition of discussion. At once stage, the OP contends that total cost of the site was Rs.8,38,000/- in respect of site No.92, denied the payment of Rs.3,00,000/-.  At another stage, OP contends that OP is ready and willing to execute absolute sale deed.  The complainant has violated the terms and conditions of booking form.  Whereas, the allegations made in the complaint are being spoken by the power of attorney holder/son of the complainant.
10. The complainant has produced copy of the booking form for site No.92 at a cost of Rs.6,00,000/- by paying Rs.1,00,000/- on 09.12.2013 by means of a cheque.  The OP issued a receipt dated 08.12.2013 for having received on behalf of cheque.  The complainant has also produced copy of booking form in respect of plot No.980 for having paid Rs.2,00,000/- against the cost of Rs.6,00,000/-.  This payment of Rs.2,00,000/- by means of cheque has been admitted by the OP by issuing receipt dated 30.12.2013.
11. The OP refers terms and conditions and contends that the complainant has violated the terms and conditions of the booking form. 
12. In order to appreciate respective contention of the parties, it is relevant to refer three clauses of general terms and conditions of booking form which read thus:-

In case of cancellation of booking by purchaser Maxworth Realty India Limited will not be liable to pay any interest on the booking amount paid.

The terms and conditions, the sale agreement cannot be changed or altered.

Refund of booking amount will be done after 30 working days from date of cancellation.

Sale agreement will be executed subject to realization of cheque/DD.

Cancellation without a valid reason 15% of booking amount will be deducted towards service and transport charges.

13. According to the above terms and conditions, in case of cancellation of booking by the purchaser, the OP will not be liable to pay any interest on the booking amount paid.  The another condition indicates that refund of booking amount will be paid after 30 working days from the date of cancellation and in case of cancellation without valid reason 15% amount will be deducted towards service of transport charges.
14. These terms and conditions are binding on both the parties.  By addressing letter dated 04.05.2018, the complainant expressed her desire to cancel the booking and requested the OP to refund an advance payment within 30 days of receipt of this notice, as per terms and conditions of agreement.  The Op received the said letter on 04.05.2018, but made an endorsement that refund will be done after 180 days.  The OP not complied the terms and conditions and even not complied its own endorsement dated 04.05.2018.  When the OP received a request for cancellation of booking, the OP was supposed to refund the advance amount without any deduction in 30 working days.  But, OP has not refunded advance payment of Rs.3,00,000/- to the complainant even on 04.06.2018 or on subsequent to 04.06.2018.  This act of the OP, non-complying of terms and conditions and non-refund of amount, amounts to deficiency of service.
15. In view of deficiency of service on the part of OP, the complainant is entitled to an order for refund of Rs.3,00,000/-.  The complainant seeks Rs.3,00,000/- with interest and compensation of Rs.3,00,000/-. The OP having failed to refund the advance amount of Rs.3,00,000/- from 04.06.2018 is liable to pay interest.  Under such circumstances, interest is quantified at 10% p.a. from 04.06.2018 on Rs.3,00,000/- till realization.  When we are awarding interest at 10%p.a., the complainant is not entitled to compensation in addition to interest.
16. Point No.3:- Having assessing records and in view of the reasons stated above, the complaint requires to be allowed in part.  The OP is liable to refund Rs.3,00,000/- with interest at 10% p.a. from 04.06.2018 till realization and liable to pay cost of Rs.10,000/- cost of litigation.   Hence, we proceed to pass the following  

  O R D E R

1. The complaint is allowed in part.
2. The OP shall refund Rs.3,00,000/- with interest at 10% from 04.05.2018 till realization and pay Rs.10,000/- towards litigation cost to the complainant.
3. The OP shall comply this order within 60 days from this date and in case of failure to do so, OPs shall pay 12% p.a. interest after expiry to 60 days on Rs.3,00,000/- till realization.
4. Furnish the copy of this order and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^th day of January, 2022)

Documents produced by the Complainant which are marked as Ex.A.1 to Ex.A.6:-