BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    05^th DAY OF FEBRUARY 2020

Complainant/s: -                           

Sri.Shekhar V Huded

S/o Vittal Huded,

Aged about 30 years

R/at No.901, 18^th Main Road,

5^th Block, Rajajinagar, Bengaluru-10.

By Adv.Sri.B.V.Manjunatha Swamy

V/s

Opposite party/s:-    

1.     Viva Property Solutions

Reg. Office at No.G-1,

SNS Chambers,

Behind City Bank ATM,

Sankey Road,

Sadashivanagar,

Bengaluru-80.

2.    Mahesh.K.M

S/o Manjappa.K.R

Managing Director of

Viva Property Solutions

No.G-1, SNS Chambers,

Behind City Bank ATM, Sankey Road,

Sadashivanagar,

Bengaluru-80.

By Adv.Sri.G.M.Nataraj

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s.12 of Consumer Protection Act 1986, seeking direction against the Opposite Party no.1 & 2 (herein after called as OPs) to repay Rs.1,63,800/- with interest at 24% p.a. or to specify the date of commencement of the project and commit to a date of handing over of possession; to pay compensation, cost and to award such other reliefs.

2. The brief facts of the complaint are as under:

The Complainant submits that, he is life time member of the OP.1. He has booked a site no.230 measuring 30’x40’ on 01.12.12 by paying Rs.1,63,800/- out of total consideration of Rs.4,68,000/-. At the time of membership, OP promised that it will allot a site no.255 measuring 30’x40’. Recently the Complainant came to know that, there was no any project land acquired by the OPs for developing the said project. Hence, asked the OPs to refund the entire paid amount. Instead, OPs are still insisting to pay the installments without any land/project/basics to further cheat the Complainant and has already cheated to so many people in general public. The Complainant requested several times either for refund of the amount or get register the site. But OP went on postponing the same by one or the other pretext. This negligent conduct of the OPs towards the Complainant amounts to deficiency of service causing unwarranted hardship and damages to the Complainant. In this context, he issued legal notice dtd.03.12.14 to which OPs not replied. Hence this complaint.

3. After issuance of notice, OPs did appear and filed version.  OPs in their version submits that, allotment of the said site no.255 and payment of consideration are all as per the terms and conditions enumerated in the MOU. That the Complainant accepted the plans, designs and specifications in respect of the layouts. OPs never insisted him to pay installment amount as alleged. Each and everything is in consonance with the terms and conditions of the MOU and as such there is no question of cheating the complaint and also the general public. OPs further submit that, the development works are still under progress and the Complainant has been informed to wait with patience till the completion of development of work. If the formation of layout is abandoned by the OP, then only he is entitled for the amount paid by him. Therefore, the complaint is premature and without any cause of action. The intention of the Complainant in entering in to the MOU is to make profit but not for livelihood. The transaction is completely commercial in nature. Hence on this ground also the complaint is not maintainable. Hence OPs pray for dismissal of the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. The Complainant filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1)   Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?

2)   What order?

        6. Our answer to the above points are as under:

Point No.1:- Partly in the affirmative

Point No.2:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OPs. In the instant case, the Complainant has filed affidavit evidence, but the OPs did not file affidavit evidence so also the written arguments. The undisputed facts which reveal from the pleadings of the parties go to show that, the Complainant being the member of the OP project booked the site no.230 measuring 30’x40’ on 01.12.12 and paid Rs.1,63,800 out of total consideration of Rs.4,68,000/-. Looking to the contents of para 7 of the complaint, OP promised to allot a site no.255 which also measuring 30’x40’. In this context, we placed reliance on the MOU/agreement/Doc.A1, wherein at ‘schedule property’ site number mentioned as 255. OPs by way of filing version admitted in respect of receiving the said amount of Rs.1,63,800/- so also in the MOU. So admitted facts need not be proved U/s.58 of the Evidence Act.

8. Now the grievance of the Complainant is that, recently he came to know that, there was no any project land acquired by the OPs for developing their project, hence asked the OPs for refund of the entire paid amount. The Hon'ble National Commission in catena of decisions repeatedly held that, if the project is not commenced well within time or plot/site not handed over within the stipulated period, option is left open to the Complainant either to sought for refund or for registration of the site. In particularly, the Hon'ble National Commission held in the following decisions:

1)  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 seeks refund. In the instant case, the Complainants had sought for refund of the amount.

This decision again followed by NCDRC in the decision reported in 2018 (1) CPR 436 (NC) in the case of Vatika Limited., V/s Shaleen Chugh and Anr. Wherein the important point is stated as under:

The act of the Petitioner in not refunding the amount deposited by the Complainants despite not having completed the project on time and further not even having communicated the promised date of delivery of possession, amounts to deficiency in service.

2) 2018 (1) CPR 237 (NC) in the case of Pradeep Gupta and Ors. V/s Unitech Hi-Tech Developers Ltd., wherein it is held as under:

Consumer Protection Act, 1986-Section 21-Real Estate-Booking of residential flat-Denial of possession despite payment-Complainants are seeking refund of entire amount paid by them along with compensation in form of interest-Opposite Parties shall refund entire principal amount to Complainants along with compensation in form of 10% simple interest-Opposite Parties shall pay Rs.25,000/- as cost of litigation in each complaint.

9. In the instant case, the Complainant has sought for the refund of the paid amount of Rs.1,63,800/-. In the light of the decisions cited supra, we come to the conclusion that, the Complainant is entitled for the refund of Rs.1,63,800/- with interest at 10% p.a. by way of compensation from the date of periodical payment but not at 24% interest p.a. as claimed. Litigation cost is fixed to Rs.5,000/-. Accordingly we answered point No.1 partly in the affirmative.

          10. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the Complainant is allowed in part.

2. The OP.1 & 2 are jointly and severally liable to refund Rs.1,63,800/- to the Complainant with interest at 10% p.a. by way of compensation from the date of periodical payment till the date of realization.

3. The OPs are also directed to pay litigation cost of Rs.5,000/- to the Complainant.

4. This order to be complied by OP.1 & 2 within six weeks from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 05^th day of February 2020)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.05.02.16

Sri.Shekhar.V.Huded

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OPs

-      NIL -    

Copies of Documents produced by OPs

            MEMBER                                           PRESIDENT