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

DATED 10^TH DAY OF JULY 2024

COMPLAINT No.393/2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

(a) Direct the OP to refund the advance sale consideration of Rs.2,23,000/- along with interest at 18% p.m., of Rs.1,71,543/- till this date.

 (b) Direct the OP to pay compensation of Rs.10,00,000/-.

(c) Direct the OP to pay future interest and cost.

(d) To grant such other reliefs.

2. The case set up by the complainant in brief is as under:-

The complainant has booked a site measuring 20X 30 feet at the proposed project of the OP called San City Gold at Chikkakaragudu Village and Kalludi Village, Kasaba Hobli, Gowribidanuru Taluk, Chikkaballapura District.  The complainant has paid Rs.2,23,000/- as demanded by the OP, for which OP has acknowledged the receipt dated 15.11.2021.  the OP has also executed a Memorandum of Understanding dated 03.12.2016 for allotment of house site and thereby promised the complainant to allot plot No.172 as per the documents.  But the OP failed to develop the said project as per the assurances. Hence the complainant has approached the OP on several occasions and requested to refund of money.  The complainant has also wrote letters to OP on 14.10.2019 and 23.12.2020 for refund of money, but the OP has not heed to his requests and failed to reply to his letters. Subsequently complainant issued another letter dated 31.12.2021 demanding for refund of the amount paid by him, but OP has not responded for the same.  Even after completion of 8 years, the OP has not completed the project and not allotted the site to the complainant. Hence complainant has issued legal notice dated 14.09.2023 demanding for refund of the entire amount with interest after cancelling the booking. Inspite of issue of notice OP never came forward for refund of the amount nor replied. Hence this complaint.

3. In response to the notice, OP appears and files version. The OP has admitted all the allegations made in the complaint relating to the membership of the complainant and the sale consideration amount paid by him and also the MOU entered between them.
4. It is the specific contention taken by the OP that he was supposed to register the sale deed in favour of the complainant within two years from the date of execution of the said MOU.  Even though he has applied for conversion of land before concerned government authorities in November 2016 the conversion order was passed by the authorities in 2018. In view of the demonetization in the month of November 2016 the whole nation suffered heavily in terms of finance and the OP has also suffered finance problem due to sudden changes in monitory policies.  It even halted his various project developments.
5. After obtaining the approvals from the concerned government authorities as per the new law of the government OP was compelled to register this project under RERA and was then permitted to register the plot to his customers. This OP has also offered the complainant an exchange site in another project which was ready for registration the complainant not only disagreed to the same but even filed this petition before this commission to exploit the helplessness situation of the OP at that time.
6. It is further case of the OP that he is ready to provide alternative site to the complainant for registration towards the executed MOU with the consent of the complainant provided he pays the deficit amount towards the existing price of the alternative site.  This OP is ready to get the plot register within six months from the date of consent from the complainant. Due to outbreak of the covid-19 this OP is not in a situation to refund the amount paid by the complainant since the economic condition of the OP is as bad as the economic condition of the nation.  Hence OP prayed for dismissal of the complaint.
7. The complainant has filed his affidavit evidence and relies on 15 documents.  The OP has filed his affidavit evidence and relied on one document.
8. Heard the arguments of advocate for the both parties. Perused the written argument filed by the complainant. 
9. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

11. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence, written argument filed by the complainant.
12. It is undisputed fact that the complainant become the member of the project floated as San City Gold and he opted to purchase the schedule property measuring 20X30 feet site, for Rs.2,23,000/- and paid the entire sale consideration amount on different dates and entered into MOU as per Ex.P3 and P4.
13. Complainant has paid Rs.2,23,000/- in respect of schedule property.  The complainant has paid the entire consideration amount.
14. After receipt of the full sale consideration, the OP has started ignoring the complainant and he has neither started to complete the project nor informed the progress of work to the complainant.  The complainant has given a letters dated 31.12.2021 requesting the OP to return the amount was paid by him.
15. When the OP failed to respond to the complainant he has also got issued legal notice as Ex.P15 and the same was served on the OP.
16. On the other hand, the contention taken by the OP is that he was unable to complete the project and to register the sale deed in favour of the complainant as agreed by him within two years from the date of MOU since there was a delay in obtaining the conversion order and also he has suffered heavily in terms of finance due to demonetization and as per the new law he was compel to register the project under the RERA.  In compliance of the same he was not able to get the plot registered in the name of the complainant as per the MOU. Even now he is ready to provide alternative site to the complainant within six months after obtaining the consent of the complainant.  If the complainant is ready to pay the deficit amount towards the existing price of the alternative site, but the complainant was not agreed to get the alternative site proposed by the OP.
17. When the complainant has paid the entire amount but the OP has neither started the project nor got registered the schedule plots in the name of the complainant.  He was not available for the complainant when the complainant has made several attempts to contact the OP. The OP would have informed the complainant about his problems and requested the complainant for granting time to complete the project. Instead of informing the complainant the OP made himself not available to the complainant. In view of this the complainant has to approach this Commission for refund of the amount from the OP.
18. The complainant also cannot wait for an uncertain period for getting the schedule plots/sites registered in his name when the project itself is not at all started by the OP as assured by them. It is the duty of the OP to get all the approvals before calling for the public to purchase the site. Instead of that the OP has collected the money from the proposed purchasers and he has not started the project by taking untenable reasons.  When the OP has not completed the project and get the schedule plots registered in the name of the complainant after obtaining entire sale consideration amount, amounts to deficiency of service and negligence and unfair trade practice. Hence the complainant is entitled for the relief.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
19. Point No.3:- In view the discussion referred above the complaint is liable to be allowed in part.  OP is liable to refund Rs.2,23,000/- along with interest at 9% p.a., from respective payment to till the date of realization with litigation expenses of Rs.10,000/- to the complainant. We proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to pay Rs.2,23,000/- with interest at 9% p.a., from the date of respective payment to till the date of realization.
3. OP is further directed to pay litigation cost of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.2,23,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 10^TH day of JULY, 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;