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

DATED 28^TH DAY OF MARCH 2022

O R D E R

SRI.H.JANARDHAN, MEMBER

This is the complaint filed by the complainant under section 35 of C.P.Act, 2019  (Herein referred as Act) against the OP with a prayer to direct the OP to pay the booking amount of Rs.7,50,000/- with interest from the date of booking till realization, to pay compensation of Rs.1,00,000/- for deficiency of service to pay cost and  such other reliefs  as  this commission deems fit.     

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

The complainant was in search of the flat and came across the OP company and there after  the complainant   booked the flat in TGS  Newyork project and there by paid amount of Rs.7,50,000/-. There after the complainant went to the OP to get the land records and records were not proper and same was intimated to the OP company, but OP company  assured that they are going to set it right. But the OP company did not make any attempts to correct the mistake and further  OP did not start the project  work and there was no developments of flat work. Though the complainant  followed it up with the OP to see the developments, but OP had not made any attempts to show the development in the project, then being fedup with the OP company, the complainant decided to cancel the flat and sought for refund of the advance amount. Inspite of requests OP did not return advance amount. Hence, this complaint.

3.  After issuance of notice to the OP by this
Commission,  notice returned with endorsement left. Further  notice through common paper publication was also taken in CC/916/2020 to CC/919/2020 and inspite of paper publication circulation in the daily newspaper, but OP did not appear.  Hence, OP is placed exparte. The complainant failed to lead evidence.

4. The points that arise for our consideration are:

1.  Whether the Complainant proves the deficiency of service on the part of OP, if so, entitled for the relief sought for?
2. What order?

  5.  Our answers to the above points are as under:

       Point No.1:  Partly affirmative

      Point No.2:  As per final order

REASONS

6.Point No.1:  In this case, the complainant had filed documents. After admission of this complaint notice was sent to OP, but notice was not served to the OP and subsequently complainant had taken paper publication and same was published in the newspaper and OP called out, absent. Hence, OP is placed Exparte. Further the complainant has not filed affidavit evidence  and affidavit evidence of complainant is taken as not filed.  Further, the OP did not appear, hence the allegation made in the complaint remained unchallenged to contest the claim of the complainant. The non-filing of version can be drawn adverse inference that OP admitted the claim of the complainant.  Further under section 38 Rule 3(c)  of C.P. Act, where the complainant fails to appear and take action to represent his case within time given by this commission, then the complaint is to be decided on merits if  the complainant fails to appear. Under such circumstances, the cases should be processed on the available documents and records. Any how on the available  documents on records. On going through  the  contention of the complainant, it is evident that complainant had booked flat with the OP for which he has paid amount of Rs.7,50,000/- towards  advance amount. After verifying the documents he came to know that the documents which were given to the complainant for verification were not proper and further OP had also assured that the said documents which were not correct would be rectified as early as possible, but for the reasons best known to the OP, the OP has not given  any further documents to the complainant for verification in that regard. Hence,  the complainant followed with the OP to get the documents, but OP made complainant wonder from piller to post. Further the complainant got issued legal notice to the OP for refund of advance amount. But, inspite of issuance of notice OP,  did not turn up to refund the advance amount to the complainant, but for the reasons best known to the OP, the complainant  had  invested his hard earned money to purchase the flat to fulfil his dream. But  advance amount which was given by the complainant  and the documents in question  were not correct. So, complainant decided to cancel the flat and get refund of the advance amount. On perusal of documents i.e. booking form and receipts issued by OP reveals that the complainant had paid booking amount of Rs.7,50,000/- on different dates i.e. 20.04.2015 Rs.1,00,000/-, 19.04.2015 Rs.1,00,000/-, 19.05.2015 Rs.50,000/-,  19.05.2015 Rs.5,00,000/- by way cheques, RTGS  and  cash respectively. Though complainant paid advance amount on different dates and from that date complainant followed up with the OP to get the documents and to see the progress of the project, but OP did not gave the documents and neither shown the progress in the project for completion. So till the delivery of flat the complainant has got continuous cause of action. Further to falsify the booking form the OP has not appeared and contested the case and then the complainant sought for refund of amount of Rs.7,50,000/- with interest. In this context to place the reliance of the judgement reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or  to seek refund of earnest money. Hence, option is left open to him for enforcement of the agreement of sale directing the OPs for registration of the sale deed if not sought for refund of money.  In this context,  several judgements passed by the Hon’ble Supreme court, Hon’ble National Commission, it is seen that awarding 9% p.a. interest will suffice. Hence,  we inclined to direct the OP to refund the amount of Rs.7,50,000/-. Accordingly, complainant is entitled to receive Rs.7,50,000/- with interest at the rate of 9% P.A. by way of compensation with litigation cost of Rs.5,000/-. Accordingly, we answer the point in affirmative.

7. Point No.2:  In view of our findings on the point No.1, we pass the following:

O R D E R

1. The complaint filed by the complainant U/s 35 of the Consumer Protection Act, 2019 is allowed in part. 
2. The OP is directed to refund an amount of Rs.7,50,000/-(Rupees seven lakh fifty thousand only) with interest at the rate of 9% p.a. by way of compensation from the date of deposit till realization with litigation cost of Rs.5,000/- (Rupees five thousand only). 
3. We also direct the OP to realize the above said amounts to the Complainant within 3 months from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.
4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer in the open Commission and on this 28^th day of March, 2022).

List of documents produced by the complainant marked as Ex.A.1 to A.7 are as follows:-