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

DATED 06^TH DAY OF OCTOBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1.         This complaint is filed by the complainant through his GPA holder under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1. Hold the OPs jointly and severally liable to pay an amount of Rs.9,95,037/- along with an interest @ 12% from initial date of payment of booking amount made by complainant till the realization of refund;
2. Grant Rs.2,50,000/- compensation for mental agony and harassment
3. Grant the cost of these proceedings
4. Grant any other reliefs.

2. The brief case of the complaint is as follows:

Initially complainant came to be filed against M/s Nitesh Estate Limited and its chairman and managing Director Nitesh shetty. Subsequently OP company has changed as M/s NEL Holdings South Limited Nitesh Timesquare, and its Chairman and Managing Director Nitesh Shetty.The complainant with an intention to have a flat bearing No.CO-203, paid Rs.3,00,000/- on 15.02.2014 and Rs.3,95,037/- on 24.06.2014 to the OPs and in all he has paid Rs.9,95,037/-.Even though agreement of sale and construction agreement have been executed but OPs neither completed the project nor refunded the amount.However OP have entered into another memorandum of settlement dated 11.03.2020 and issued cheque for Rs.9,95,037/- on 15.04.2020 towards refund, but cheque came to be dishonored.

3. It is further case of the complainant that despite repeated requests and legal notice dated 7^th January 2021, OPs failed to comply the request.  This act of the OP non refund of amount with interest amounts to deficiency of service.

4. In response to the notice, OPs appeared through their counsel and filed version.  OP1 is the registered company.  OP admitted the execution of sale agreement and construction agreement.  There is no agreement to pay interest and litigation damages to the complainant, the OP could not complete the project due to reasons beyond their control.  They request to dismiss the complaint.

5. The affidavit evidence of GPA holder of the complainant has been filed and relies on 16 documents.  The affidavit evidence of authorized signatory of OP has been filed with three documents. Heard the arguments. Perused the records.

6. The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OPs?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

7. Our answer to the above points are as under:

       Point No.1 :- Affirmative

      Point No.2 :- Affirmative in part

       Point No.3:- As per the final order.            

REASONS

8. Point No.1 and 2:     Even though OP contested the case, but documentary evidence produced by the complainant remains undisputed.  Ex.A1 is the copy of the Power of attorney executed by the complainant in favour of his father Timmanna K.V.  Ex.A2 is the booking form submitted by the complainant with the OP.  Ex.P3 and P4 are the copies of the cheques indicate that the complainant has paid Rs.6,95,037/-.  Ex.P5, the letter of the OP clearly indicates that the OPs have received in all Rs.9,95,037/- and they promised to refund the amount within 90 days vide letter dated 01.05.2019.  Even 90 days this is taken into consideration, the OPs were supposed to refund the entire amount on or before June 2019. But they failed to refund the same.  This complaint came to be filed on 18.03.2021.  The complaint is within time.  Ex.P6 and P7 are the agreement of sale and construction agreement between complainant and OP.  Ex.P8 is the letter of allotment dated 18.02.2014 written by the OP to the complainant.  Ex.P9 is the correspondence between the complainant and OP on 17^th March 2021.  Despite Ex.P10 Memorandum of settlement dated 3^rd May 2019 between complainant and NEL Holdings Limited which stepped into the shows of the OP1.  Ex.P12 indicates that the cheque presented for encashment by the complainant came to be dishonored.  Ex.P13 is the cheque issued by the OP for Rs.9,95,037/- in favour of the complainant.  Ex.P14 is the Memorandum of Settlement between the complainant and NEL Holdings Limited dated 27^th November 2019.  It is relevant to note that the another cheque was issued by the OP1 to the complainant on 15.04.2020 for the same amount.  Subsequently the complainant got issued legal notice dated 7^th January 2021 and by serving the same called upon the OP to refund the amount. Even though OP issued Ex.P16 email dated 12^th July 2021 promising to repay the amount by 15^th September 2021 but despite undertaking the OP failed to refund the amount.

9. Even though OP has filed affidavit evidence and relies on three documents, Ex.R1 is the authorization issued in favour of RW1,  Ex.R2 indicates that OP1 has changed its name NEL Holdings Limited on 27^th April 2019. Subsequently this NEL Holdings Limited has   changed its name as NEL Holdings south Limited vide Ex.R3.  There is nothing on record to disbelieve the say of the complainant.  Complainant proves the deficiency of service on the part of the OPs in not refunding the amount.

10. The complainant claims interest at 12% p.a., from the date of payment till realization and Rs.2,50,000/- as compensation.  The complainant is not entitled to compensation.  However complainant is entitled to 9% interest on paid amount from the date of payment till realization, in view of the decision of the Hon’ble supreme court of India in 2022(2)CPC(1) in the matter between Experian Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor.  It is proper to award interest at 9% p.a., as compensation on paid amount from the date of payment till realization. Accordingly we answer point NO.1 and 2.

11. POINT NO.3: In view of the discussion referred above, complaint requires to be allowed in part.  OPs are liable to refund Rs.9,95,037/- with interest at 9% p.a., from the date of payment till realization as compensation and Rs.15,000/- as cost of litigation.  It is proper to impose time limit on the OP to comply this order. We proceed to pass the following;

O R D E R

1. Complaint is allowed in part.
2. OP shall refund Rs.9,95,037/- with interest at 9% p.a., from the date of payment till realization as compensation and pay Rs.15,000/- as cost of litigation.
3. OP shall comply this order within 60 days from this date failing which OP shall pay interest at 12% p.a., after expiry of 60  days on Rs.9,95,037/- till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 06^th day of OCTOBER, 2022)

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

Documents produced by the representative of opposite party :  

HAV*