COMPLAINT FILED:09.03.2011
DISPOSED ON:17.07.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
17th DAY OF JULY-2012
PRESENT :- SRI. B.S. REDDY PRESIDENT
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.480/2011
ComplainantS | 1. Kaustav Bhattacharyya S/o D.K.Bhattacharyya, Aged about 38 years. 2. Ishita Bhattacharyya W/o Mr.Kaustav Bhattacharyya, Aged about 31 years. Both are residing at No.B-303, Millenium Habitat, Kundalahalli, Bangalore-560 037. Adv: Sri.N.Dinakar V/s. |
OPPOSITE PARTY | M/s Orange Constructions & Infrastructure “Orange Towers”, No.114/1, 3rd Floor, Opp.ASR Kalyana Mantapa, Near Tamarind Restaurant, Vijaya Bank Colony, Outer Ring Road, Banasawadi, Bangalore-560 043, Represented by its Managing Director. Adv:Sri.S.Manjunatha |
O R D E R
Sri.B.S.REDDY,PRESIDENT
The complainants filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P) to pay total sum of Rs.6,45,000/- on the allegations of deficiency in service.
2. The case of the complainants is to be stated in brief is that:
They being attracted by the Advertisements made by Op with regard to the project i.e., “Orange Township”, a proposed Residential Apartments project at Devanahalli, Bangalore, booked two flats bearing No.B4-101 and B4-102 and paid sum of Rs.2,00,000/- each towards booking charges for the said two flats totally Rs.4,00,000/-. OP has issued the receipts. Prior to the booking of the flats, Op assured that it shall commence the construction of the apartments immediately and it shall obtain all the approvals, licenses prior to the same. Contrary to the aforesaid assurances, OP has informed that there has been delay in obtaining approvals/licenses from appropriate authorities and finally on 03.04.2009 OP sent draft copy of sale agreement through e-mail in which no whisper regarding the approvals. The complainants demanded the Op to assure in writing the date of commencement of the construction activity and probable date of completion of the project and handing over the flats. Op failed to do so, finally the complainants sent e-mail on 07.05.2010 demanding to return the amounts paid. Op assured to return the amounts with interest at 24% p.a. but failed and neglected to repay the amounts. The acts of Op put the complainants into unbearable mental agony and huge financial loss. The legal notice was issued on 10.08.2010 calling upon to pay the amounts with interest and compensation but the said notice was returned un-served as “Door Locked-Intimation Dropped’. Thus the complainants claims refund of Rs.4,00,000/- booking amounts interest at 24% p.a. from 05.01.2009 amounting to Rs.1,92,000/-, cost of notices Rs.3,000/- compensation for mental agony Rs.50,000/- in all Rs.6,45,000/-. Hence the complaint.
3. On appearance, OP filed version admitting that it had introduced a Scheme towards construction of residential apartments in Devanahalli Taluk, the scheme was called ‘Orange Township’ and the complainants booked two flats and paid initial advance of Rs.4,00,000/-. OP agreed to obtain necessary approvals and clearances but it is denied that there is any deficiency in service on the part of the Op. The complainants on the basis of the reports in the media that there was a failure in the project marketed by he OP filed Criminal complaints against him. Op requested the complainants that the project floated by him would be completed and possession of the apartments would be handed over within the agreed period. The Central Crime Branch, Bangalore registered the case and seized the office of the OP, the entire accounts and all the documents were seized and in this regard, he was unable to arrange for repayment. OP approached the Hon’bel High Court for quashing of the Criminal Complaints filed against him and Op requested time to pay the amount. During the pendency of the Criminal proceedings, OP made payments to the tune of Rs.1.84 Crores as per the directions of the Hon’ble High Court. The Criminal Petition was dismissed. OP has refunded the advance amount to the complainants during the pendency of the proceedings before the Hon’ble High Court and the said fact has been suppressed by the complainants. OP entered into an agreement of sale with the Landlords intending to construct the said flats and for the said purpose formulated a scheme to the intending purchasers. Op has invested more than 10 crores for the purpose of development of the said project. M/s Granity Properties Pvt Ltd has cheated the Op and OP has filed complaint against the said Granity Properties. Being aggrieved by the Order of dismissal of the Criminal Petition by the Hon’ble High Court, the OP preferred SLP No.2611/2010 before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court directed the OP to pay the entire liability and OP has deposited the entire money as per the directions of the Supreme Court. The Hon’ble Supreme Court directed the Hon’ble High Court to disburse the entire money so deposited and the matter before the Hon’ble High Court is pending consideration. The claim of the complainants is baseless, the complaint is liable to be dismissed. Hence, it is prayed to dismiss the complaint.
4. The complainants in order to substantiate complaint averments, the 2nd complainant filed affidavit evidence. The Proprietor of OP filed affidavit evidence in support of defence version.
5.Arguments heard from complainant’s side, OP side taken as heard.
6. Points for consideration are as under:
Point No.1:- Whether the complainants have
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainants are
entitled for the relief’s claimed?
Point No.3:- To what Order?
7. We record our findings on the above points:
Point No.1:- Affirmative
Point No.2:- Affirmative in part
Point No.3:- As per final Order
R E A S O N S
8. At the out set it is not at dispute that these complainants being attracted by the Advertisements and propaganda made by OP with regard to the project i.e., ‘Orange Township’ proposed residential apartments project at Devanahalli, Bangalore booked two flats bearing No.B4-101 and B4-102 and paid initial sale consideration as booking charges for the said two flats totally amounting to Rs.4,00,000/- on 05.01.2009. OP has issued the receipts acknowledging the receipt of the said amount. At the time of booking of these apartments, OP assured that it shall commence the construction of apartments immediately by obtaining the statutory approvals and necessary license. Contrary to the said assurance, OP informed the complainants that there has been delay in obtaining approvals and license from appropriate authorities. Finally on 03.04.2009 OP had sent draft copy of sale agreement through e-mail in which there is no whisper regarding the approvals and the time required for completion of the project and the period for putting the complainants in possession of the apartments. When Op was unable to start the project, the complainants demanded for refund of the amount paid, but Op failed to repay the amount. The Legal Notice was returned un-served as “Door Locked-Intimation Dropped”. The act of OP neither commencing the work of construction of the apartments nor refunding the booking amount received amounts to deficiency in service on its part. We are unable to accept the defence that OP assured the complainants that he would complete the project on time as agreed and deliver possession of the apartments. No materials placed before the Forum to show that Op has acquired any property for putting up the construction of the apartments. Without acquiring any property for the project OP has made these complainants to part with huge amount of Rs.4,00,000/- towards booking of the apartments.
9. OP has not produced any material to show that during the pendency of the Criminal Petition before the Hon’ble High Court challenging the Criminal Proceedings initiated, it has refunded the amount to the complainants. Therefore, the defence that OP has already refunded the amounts to the complainants is baseless, the same cannot be accepted.
10. Further the defence of the OP is that during the pendency of the Criminal proceedings before the Hon’ble High Court he has deposited an amount of Rs.1.84 Crores as per the direction of the Hon’ble High Court and further he has deposited the entire amount before the Hon’ble Supreme Court. Hence he is not liable to pay any amount to the complainants cannot be accepted. The documents produced by Op reveals that in the Criminal Miscellaneious Petition No.6664/2010 and Special Leave to Appeal No.2611/2010 before the Hon’ble Supreme Court, the counsel for the Petitioners have submitted that sum of Rs.1.84 Crores out of 7 Crores has been deposited and the 2 Crores will be deposited within 4 weeks and the balance of Rs.3.16 Crores would be deposited within a period of 2 months. With that understanding notice was issued. OP has deposited an amount of Rs.2 Crores on 07.05.2010 and an amount of Rs.3.16 Crores on 22.07.2010 before the Hon’ble Supreme Court. OP has not produced any material to show that the amount due to the complainants included in that deposited amount. OP has not filed list of the investors and the amount due to each of investors so as to show that the names of these complainants is also shown in that list and the amount claimed the complaint is already deposited. Under these circumstances, we are of the view that Op is liable to refund the amount with interest at 18% p.a. from the date of payment of booking amount till the date of realization by way of compensation. The complainants have been deprived of the returns from the amounts paid to OP and Op had the benefit of the said amount. Taking into consideration the escalation of costs of the flats, mental agony and physical harassment by the act of Op in not refunding the amount and commencing the project interest at 18% p.a. on the amount paid is to be awarded as compensation. Accordingly, we proceed to pass the following:
O R D E R
The complaint filed by the complainants is allowed in part.
OP is directed to refund an amount of Rs.4,00,000/- with interest at 18% p.a. from 05.01.2009 till the date of realization and pay litigation cost of Rs.3,000/- to the complainants.
This order is to be complied within four weeks from the date of this order.
Send copy of this order to both the parties free of costs.
(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 17th day of July-2012.)
MEMBER PRESIDENT
Cs.
