ORDER

SMT.NANDINI.H.KUMBHAR, MEMBER

1. The Complaint is filed by the complainant under section 35 of the C.P.Act, 2019 against the OP alleging deficiency of service directing the OP to pay  balance sum of Rs.11,00,000/- along with interest at 18% p.a. and also direct the OP to pay compensation of Rs.5,00,000/- by way of damages and Rs.50,000/- towards cost of litigation and such other reliefs.

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

               This is the case of the complainant that the complainant with an intention purchase flat  in the approached the OP  of their upcoming project in the name and style of “Prabhavathi Royal Gardenia” situated at Rayasandra village, Bengaluru  and after discussion  with OP the complainant  agreed to purchase apartment bearing No.S-35, in the 2^nd floor measuring 1135 sq.ft and undivided share of 265 sq. ft in the project. Accordingly, the complainant and OP have entered into an Agreement of Sale and Agreement for construction on 03.03.2014 for purchase of said apartment and complainant availing financial assistance from Bank and has also entered in Tripartite agreement  on 03.03.2024.  The complainant submits that as per said agreements the complainant agreed to purchase the said apartment for a sum of Rs.24,75,000/- and  complainant paid Rs.1,50,000/- on 03.03.2014 to the OP and OP have acknowledged the same and in addition the bank have released a sum of Rs.10,00,000/- to the OP and OP have also acknowledged the same. The complainant submits that as per agreements, the OP have to complete the project within 24 months from 03.03.2014 with grace period of 02 months over and above, but the after laps of 09 years the OP have not handed over the apartment to the complainant. The complainant inspected the project on 07.04.2023 and found that only shell structure of the said project  has been erected and no other development works have been carried out in the project.  The complainant left with no other option got issued legal notice on 13.04.2023 calling upon the OP to fulfill their obligations under the agreement and deliver the apartment in the project  to the complainant or in alternative refund the entire sum of Rs.11,00,000/- along with interest at the rate of 18% p.a. from 03.03.2014 till the date of actual payment, but the notice returned  and OP has not complied to the terms of notice. Aggrieved by the act of OPs the complainants filed the present complaint seeking  relief as prayed in the complaint.

3.  Notice to the OP duly served, but OP remained absent and they have been placed ex-parte.

4. Complainant filed chief examination affidavit by re-iterating the complaint allegations and also filed relevant documents in support of their plea.

5.  Heard arguments and matter is reserved for orders.

6. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OP as alleged in the complaint and thereby prove that he is  entitled for the relief sought?
2. What order?

8. The findings on the above points are as under:

Point No.1           :       Partly affirmative.

Point No.2           :       As per final order.

REASONS

9. POINT NO.1:- Despite of service of notice, OP not appeared before the commission and not chosen to file version to contest the matter.  The Judgment rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, which is reported in CPR 2018(1) at Page 325 between Kotak Mahindra Old Mutual Life Insurance V/s Dr.Nishi Gupta, In this case, Hon’ble National Commission has held that “Non-filing of Written version in the complaint which amounts to admission of complaint allegations”. The guidelines of the above ruling is aptly applicable to the case on hand as the OP in this case remained absent and on account of that they are placed ex-parte. In the absence of version and affidavit from their side, the complaint allegations of complainant is to be held as a proved fact. On this point, an inference could be drawn in favour of complainant as against the OP that there is a deficiency in service on the part of    the OP.  

10. From the  facts of the complaint, it is found in the affidavit which is filed by the complainant  by re-iterating the entire complaint averments as against the OP, which is supported by Annexure documents C1 to C7. On perusal of these documents it is clear that  the complainant and OP have entered into  an agreement of sale and construction agreement on 03.03.2014 towards purchase of an apartment bearing No.S-35, 2^nd floor measuring 1135 sq. ft and undivided share of 265 sq.ft. in the project in the name and style of “Prabhavathi Royal Gardenia”. Further, the complainant has availed the financial assistance from the Bank towards the same and the Tripartite agreement dt.03.03.2014 entered between the Bank, complainant and OP by way of this agreement, the total consideration of said property was materialized at Rs.24,75,000/-. For which the complainant had paid Rs.1,00,000/- in addition to the amount of Rs.10,00,000/- released by the bank and in all the complainant has paid a sum of Rs.11,00,000/- and the OP have acknowledged the receipt of said amount. Despite of receipt of Rs.11,00,000/- towards Agreement of sale and Agreement of construction dt.03.30.2014 marked as Annexure-C2 &C3 and the OP was supposed to hand over the apartment in the project within 24 months with grace period of 02 months  over and above from the date of signing of said construction agreement, but  the OP have not been handed over the apartment to the complainant.  When the complainant inspected, only the shell construction of the said project has been erected and no other development has been taken place. As per agreement, the complainant has paid instalments  of consideration amount to the OP. The complainant  in order to purchase the said property has availed the loan from the bank with a sanctioned sum of Rs.10,00,000/-, on compliance of terms of loan agreement hoping that the apartment was handed over to the complainant  on or before 03.03.2016, however even as on the date of the notice, the apartment has not been handed over to the complainant. Despite of approaching OP and even the complainant has issued legal notice calling upon them to fulfil their obligations, neither the OP have replied nor complied to the request of the complainant and failed to hand over the apartment as per agreement. Though the complainant has made all the efforts and also made demands by approaching the OP to hand over the property as per agreement, but all these efforts did not yield any fruits.

11. On perusal of the documents, it is noticed that all the allegations as against the OP are proved fact beyond reasonable doubt, for the reason that the annexure documents C1 to C7, which clearly supports entire allegations as against OP. Under such circumstances, the act and negligent service, the OP is held liable to refund the amount received from the complainant for their deficient service. The absence of OP and not to contest the matter by participating in the proceedings and not filing version and affidavit is a clear admission from the OP, that whatever the complaint allegations as against the OP is to be held as proved fact.

12. In view of the judgment rendered by the Appellate Authority, the facts and annexure documents produced by the complainant, the commission has come to the conclusion that the act of OP, the complainant is neither put in possession of the property by the OP nor his amount refunded, which is clear case of deficiency of service on the part of the OP. Therefore, the commission considers that, the case against OP is well made out by the complainant and further, the complaint deems to be allowed. Accordingly, we answer Point No.1 Partly in the affirmative.

13. POINT NO.2:- In the result,  for the forgoing reasons, we passed the following:

ORDER

1. The complaint is hereby allowed in part.

2.The OP is directed to pay refund  a sum of Rs.11,00,000/- along with  interest at 8% p.a. from the date of respective payment  till the date of  entire payment is made to the complainant.

3. The OP is directed to pay compensation of Rs.50,000/- towards deficiency in service, Rs.25,000/- towards compensation for pain and suffering and Rs.10,000 towards  cost of litigations within 45 days from the date of order, failing which the OP is liable to pay interest at 8% p.a. on all amounts.

4.Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 29^thJune 2024)

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                   (SHRINIDHI.H.N)            

                      MEMBER                                     MEMBER 

Witness examined on behalf of the complainant by way of affidavit:

Sri Rudra Prasad-Who being the GPA holder of complainant.

Documents produced by the complainant:

Witness examined on behalf of the OP way of affidavit:-Nil

Documents produced by the OP: NIl

 (RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)         (SHRINIDHI.H.N)            

          MEMBER                           MEMBER

SKA*