COMPLAINT FILED ON: 28.10.2010

DISPOSED ON: 09.02.2011

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

9^TH FEBRUARY 2011

  PRESENT :-     SRI. B.S. REDDY                          PRESIDENT

                        SMT. M. YASHODHAMMA             MEMBER                   

                        SRI. A. MUNIYAPPA                      MEMBER

       COMPLAINT NO. 2481/2010

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed u/s.12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the OP (herein after called as O.P) to refund Rs.10,00,000/- along with interest at the rate of 18% p.a. and compensation of Rs.2,00,000/-for mental agony, loss and hardship suffered by complainant on the allegations of deficiency in service.

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

          Complainant being lured away with the advertisement propaganda issued by OP regarding the construction of residential apartment to be constructed at Devanhalli just few minutes drive from Devanahalli International Airport called as “Orange Township” booked a Villa bearing No. A-12 and paid a sum of Rs.10,00,000/- to OP.  OP has issued a receipt dated 04.01.2009 same is produced by the complainant.  OP orally assured the complainant that they would allot the villa at the earliest.  After receipt of the above said amount OP neither allots the villa as assured nor informed anything to the complainant. Complainant personally approached and repeatedly requested OP to allot a villa and register the same in favour of the complainant. During the month of June 2009 complainant approached OP and demanded to return the amount. OP issued a cheque dated 06.07.2009 drawn on ICICI Bank, Bangalore bearing No.107033 for a sum of Rs.10,00,000/- in favour of the complainant towards the refund. Copy of the payment Voucher and the cheque issued by OP is produced.  After the issuance of the cheque OP requested the complainant not to present the cheque till OP inform the date for presentation. Hence complainant not presented the cheque for encashment.  Whenever complainant approached OP for refund; OP was totally evading and giving false assurances. Inspite of repeated requests OP failed to refund the advance amount or to inform the date for presentation of the cheque to complainant. Hence complainant felt deficiency in service against the OP. Under the circumstances he is advised to file this complaint for the necessary relief’s.

3.      After registration of the complaint notice is sent to OP. Notice returned with endorsement that OP has left the address. Hence complainant took notice through paper publication. Inspite of service of notice through paper publication OP remained absent. Hence OP placed ex-parte.

4.      In order to substantiate the complaint averments complainant filed his affidavit evidence and produced copy of the Broachers, copy of the Master Plan, proposed layout map, copy of the receipt dated 04.01.2009, payment voucher dated 06.07.2009, copy of the cheque dated 06.07.2009, paper notification dated 09.01.2011 and advertisement bill for Rs.800/-. OP did not participate in the proceedings. Heard argument of the complainant.

5.      It is contended by the complainant that he being lured away with the advertisement and propaganda issued by OP with regard to the schemes “Orange Township” construction of residential apartment to be constructed, booked Villa a bearing No.A-12 and paid advance of Rs.10,00,000/- to OP through his credit card, receipt issued by OP dated 04.01.2009 is produced. OP failed to commence the work. It appears that OP has also issued cheque dated 06.07.2009 in favour of the complainant towards refund of the advance paid; but OP has requested the complainant not to present the cheque till OP inform for presentation. Complainant has not presented the cheque for encashment. OP was unable to commence the project till date. Inspite of repeated requests made by the complainant OP has failed to refund the amount or to inform the complainant to present the cheque and OP has failed to perform its part of service. It would have been fair enough on the part of OP to refund the amount received from the complainant.  There is nothing to discard the unchallenged sworn testimony of the complainant which finds full collaboration with the contents of the undisputed documents produced. Affidavit evidence of the complainant appears to be very much natural, cogent and consistent. The very fact of OP remaining ex-parte leads us to draw an inference that OP admits all the allegations made by the complainant in toto. Under these circumstances we are of the considered view that OP has failed to fulfill its obligations in completing the project or to refund the advance amount received, same amount to deficiency in service and unfair trade practice on the part of the OP. Under these circumstances we are of the considered view that the complainant is entitled for refund of amount along with interest at the rate of 18% p.a. and litigation cost of Rs.2,000/-. We are of the view that awarding interest at 18% p.a. on the advance amount taken is to be treated as compensation and expenses. OP withholding advance amount accrued wrongful gain to himself and caused wrongful loss to the complainant.  Hence OP is liable to pay interest from the date of receipt of payment till the date of realization. Accordingly we proceed to pass the following:

ORDER

          Complaint is allowed in part. OP is directed to refund Rs.10,00,000/- with interest at the rate of 18% p.a. from 04.01.2009 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.  

This order is to be complied within four weeks from the date of its communication.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 9^th day of February 2011.)

                                                PRESIDENT

   MEMBER                                             MEMBER                     

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