Date of Filing: 16/08/2014

  Date of Order: 24/08/2017

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 alleging the deficiency in service on the part of the O.Ps and prays for orders to direct the O.Ps to pay a sum of Rs.7,65,000/- along with interest at the rate of 12% per annum from the date of paying the advance amount till the date of the amount is refunded. Also seeking direction to the O.Ps to pay a sum of Rs.5,00,000/-towards compensation and to pay Rs.5,00,000/- as damages.

2.     The brief facts of the complaint are that the O.P.No.1 is a sole proprietary concern and is engaged in the business of property development, brokering and other real estate related business. O.P.No.2 is a company registered under the Companies Act 1956 and claims to be involved in the business of construction of flats and development projects and O.P.No.2 is the owner of the property in respect of land in Sy.No. 39 and 185 situated at Hirandanahalli, Bidarhalli Hobli, Bangalore East Taluk.  It is stated that O.P.No.2 proposed to launch the project in the above said landed property and thereby O.Ps given the advertisement in the news paper, magazines and hoardings.  It is stated that, in response to the advertisement and lured by the said advertisement complainants approached the O.Ps in order to purchase the site property measuring 30X40 and after negotiation the sale consideration fixed was Rs.16,06,500/- and the complainants entered into an agreement dated 23.7.2008 and paid to the O.Ps and advance amount of Rs.7,65,000/- through cheques dated 27.6.2008 and 30.6.2008 drawn on Axis Bank and State Bank of Mysore. Further the O.Ps acknowledged the receipt of the said amounts in the sale agreement itself and promise to register the said site property within nine months from the date of agreement.  It is stated that, inspite of the sale agreement and promise made by the O.Ps and the O.Ps failed to registered said site property or not refunded the amount.  It is stated that, there are many police complaints filed against the O.Ps at the Ashok Nagar Police station and Indira Nagar Police station and the complainants also lodged the complaint with the Ramanagara Police station.  After that O.Ps  agreed to refund the entire amount so collected from the customers and accordingly O.Ps issued cheque for the amount of Rs.1,00,000/- and the said cheques were dishonored on account of insufficient funds maintained in their account. Hence the complainants by alleging deficiency in service on the part of O.Ps and filed this complaint.   

3.     Upon issuance of notice to the O.P. No.1 and 2 through paper publication and the O.Ps inspite of paper publication remained absent and consequently proceeded to place ex-parte.

4.     In order to substantiate the case of the parties and complainants have filed their affidavit evidence and also heard the arguments.

5.   On the basis of the averments made in the complaint, the following points will arise for our consideration is:-

                (A)   Whether the complainants have proved

                         deficiency in service on the part of the O.Ps?

(B)   Whether the complainants are entitled to

       the relief prayed for in the complaint?

(C)   What order?

6.     Our answers to the above points are:-

POINT (A) & (B): In the partly affirmative.

POINT (C):       As per the final order

for the following:

REASONS

POINT No.(A) & (B):-

7.     On perusing the averments made in the complaint along with the affidavit evidence, it is the specific case of the complainants is that, they approached the O.Ps in order to purchase the site property and entered into an agreement dated:23.7.2008 and paid an advance amount of Rs.7,65,000/- and the O.Ps acknowledged the receipt of the said amount and agreed to register the said site property within nine months, but the O.Ps neither completed the project and  registered the site property nor refunded the amount.

8.     In order to prove the case of the complainants and the complainants have filed their affidavit evidence along with the documentary evidence. On perusing the Annexure-A, it clearly reveals that, O.Ps have given the colorful advertisement about their projects and the facilities. It is worth to note that, any middle class family who intends to have their own nest generally, lured by the advertisement and the O.Ps like builders will take the advantage of the situation.  Also on perusal of agreement of sale dated 23.07.2008 it also reveals that the sale consideration of the site property was fixed for Rs.16,06,500/- and the complainants  paid  advance amount of Rs.7,65,000/- to the O.Ps and the O.Ps acknowledged the receipt of the said amount in the agreement itself. Hence the agreement itself is the evidenced that, complainants paid Rs.7,65,000/- towards the purchase of the site property through different cheques as stated by the complainants.

9.     On perusal of copy of the first information report it is also reveals that, due to non-refunding of the amount or not registering the site property complainant also lodged the police complaint at the Ramamurthynagar police station.  On perusal of Annexure-F it discloses that the similar complaints were filed against the O.Ps before the Hon’ble 4^th Addl. District Consumer Forum Bangalore and the Hon’ble Forum allowed the complaint against the O.Ps. So also on perusing the Annexure-G it discloses that, the O.Ps in the CRLP No 3870/2009 filed before the Hon’ble High Court of Karnataka at Bengaluru wherein which O.Ps have undertaken to pay back the amounts to its customers in such event Hon’ble High Court is directed the concerned police in the event payments are not made as undertaken, the police is at liberty to proceed against the accused.  All the above said facts clearly establishes that the O.Ps inspite of undertaking but failed to refund the amount to the complainants and other customers. On the basis of available evidence on record the act of the O.Ps is highly deplorable one and the O.Ps are not only committed deficiency in service but also adopted unfair trade practice. In the light of above discussion we reached to conclusion that the complainants proved deficiency in service on the part of the O.Ps.  Further on perusal of the Annexure-2 the sale agreement dated 23.07.2008.  It clearly reveals that the complainants paid Rs.7,65,000/- to the O.Ps in order to purchase the site property. Further due to deplorable act of the O.Ps the complainants are made to wander from pillar to post and hence complainants are entitled to interest on the above said amount at the rate of 12 % per annum from the date of complaint till the realization of the amount and Rs.2,000/- towards cost of the proceedings and it will meets the ends of justice. Accordingly we answered these points in the partly Affirmative.

POINT (C):

10.   On the basis of answering the Points (A) & (B) in the partly affirmative, we proceed to pass the following:-

ORDER

1. The complaint is allowed in part with cost.

2. The O.P No.1 and 2 are jointly and severally liable to pay a sum of Rs.7,65,000/- to the complainants  along with interest at the rate of 12% per annum from the date of complaint till the realization.

3. Further O.Ps are directed to pay cost of Rs.2,000/- towards cost of the litigation expenses.

4. The O.Ps are hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this Forum within 45 days from the date of receipt of this order.
5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 24^th Day of August 2017)

MEMBER                 MEMBER                PRESIDENT

*RAK