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

DATED 5^th DAY OF FEBRUARY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complainant by invoking Section 35 of C.P.Act, 2019 seeks direction against the OPs to refund Rs.3,00,000/- with interest 24% p.a. from 01.06.2016 till realization and grant other reliefs.

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

The complainant had approached the OPs for allotment of site.  Accordingly, the complainant paid Rs.30,000/- on 02.06.2015, Rs.1,50,000/- on 30.06.2015, Rs.20,000/- on 30.05.2015, Rs.30,000/- on 16.06.2015 and Rs.70,000/- on 31.07.2015 in respect of site No.170A to the OPs.  But, OPs failed to allot the site.  When the complainant approached the OPs, OPs failed to comply the demand made by the complainant.  Subsequently by issuing legal notice dated 08.02.2020, he called upon the OPs to refund his money with interest.  But, OPs failed to refund the money.  This act of the OPs amounts to deficiency of service.  Therefore, OPs are liable to pay interest at 24% p.a. and refund of Rs.3,00,000/- to the complainant.  Hence, this complaint.

3. The complainant also files an application under Section 5 of Limitation Act to condone the delay in filing the complaint.  He could not file the complaint due to Covid.  There is no intentional delay in filing the complaint.  If the delay is not condoned, the complainant would put irreparable loss

4. After receipt of notice, OP Nos.1 and 2 appear before this Commission and filed written statement.  Despite receipt of notice, OP No.3 fails to appear before this Commission.  Therefore, OP No.3 has been placed exparte.

5. The OP Nos.1 and 2 contend that the complaint is bad for non-joinder and misjoinder of the parties. This complaint has been filed to harass them. The complainant had booked site No.2571 and paid Rs.3,00,000/-.

6. They obtained approval from the concerned government authorities and registered the project under RERA.  They are liable to allot sites on seniority basis.  As per memorandum of understanding, they offered another site in another project which was ready for registration.  The complainant not only disagreed with the same, but file the present complaint to exploded the situation.  There is no deficiency of service.  They requests to dismiss the complaint.

7. The complainant has filed affidavit evidence and relies on 11 documents.  The affidavit evidence of official of OP Nos.1 and 2 has been filed with authorization letter.

8. Heard the arguments of both sides and perused the records.     

9. The following points arise for our consideration:-

1. Whether the complainant shows sufficient cause to condone the delay?
2. Whether the complainant proves deficiency of service on the part of OPs?
3. Whether the complainant is entitled to reliefs mentioned in the complaint?
4. What order?

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

       Point No.1:  In the affirmative

      Point No.2:- In the affirmative.

      Point No.3: Affirmative in part

      Point No.4: As per final orders

REASONS

11. Point Nos.1 to 3:  In order to appreciate the contention of respective parties on these points, it is necessary to refer the documents and respective contentions of the parties. The point of limitation is also one of the defence.  There was memorandum of understanding dated 31.08.2017 between the complainant and OP No.1.  It is proved from the copies of the receipts Ex.P.2 to P.8 that the complainant made the payment of Rs.3,00,000/- in respect of two sites.  The OP Nos.1 and 2 admit memorandum of understanding, payment of Rs.3,00,000/- and receipt of legal notice.  Ex.P.9 is the legal notice dated 08.02.2020 got issued by the complainant to the OPs.  Despite receipt of legal notice, the OPs failed to refund the amount.  The OP Nos.1 and 2 clearly admit in para 11 of the written statement that they received legal notice dated 18.02.2020 from the complainant and on 22.02.2020, they telephonically informed the complainant about delay in registration of the plot and they have informed the complainant that plot would be allotted according to the seniority.  This admission of the complainant clearly indicates that delay in allotment of the plot by the OPs, this complaint came to be filed on 29.11.2020 preceded by legal notice on 08.02.2020.  The OPs have not produced documentary evidence to show on what date they obtained the legal permission from the concerned authority, more particularly from RERA.  The delay has been caused due to the fault of the OPs.  Absolutely, there is no delay in filing the complaint.  Moreover, there was a Covid problem in approaching this Commission after March 2020.  Therefore, complainant has rightly explained the delay.
12. The OPs have clearly admitted the execution of memorandum of understanding and receipt of Rs.3,00,000/- from the complainant.  Even though, payment is made in the year 2015 as could be seen from Ex.P.2 to P.8.  The memorandum of understanding came to executed on 31.08.2017.  There is a reference of breach of contract in the memorandum of understanding.  According to this understanding, if the first party i.e. OP No.1 fails to facilitate registration of deed of the schedule or either in the 2^nd party name, the first party agrees to return the invested money to the complainant within 12 months from the date of termination of agreement by first party.  It is relevant to note till this date first party not terminated this agreement even 12 months has taken paid consideration, it goes to up to 31.08.2018.  When the OPs have not terminated the agreement and failed to produce on what date the OPs have obtained legal permission of the authority in respect of the site.  Despite receipt of legal notice dated 08.02.2020, the OPs neither allotted the site nor refunded the amount to the complainant.  This act of the OPs amounts to deficiency of service.  Therefore, OPs are liable to refund this amount of Rs.3,00,000/- to the complainant.
13. The complainant claims interest at 24% on this amount of Rs.3,00,000/- from the date of payment till realization.  But, there is no privity of contract with regard to payment of interest at 24% p.a. However, the amount paid by the complainant as indicated in the beginning of the order while narrating the facts of the case of the complaint, the amount has been locked with OPs.  When there is a deficiency of service and when there is no agreement to pay interest at 24% p.a. it is proper to award interest at 10% p.a. from the date of respective payments till realization. The complainant has availed the service of advocate.  Therefore, the cost of litigation is quantified at Rs.10,000/-.
14. Point No.4:- In view of the discussion referred above, the complaint requires to be allowed in part.  The OPs are liable to refund Rs.3,00,000/- with interest at 10% p.a. on Rs.30,000/- from 02.06.2015, on Rs.1,50,000/- from 30.06.2015, on Rs.20,000/- from 30.05.2015, on Rs.30,000/- from 16.06.2015 and on Rs.70,000/- from 31.07.2015 till realizaiton.  The OPs are also liable to pay cost of Rs.10,000/-.  We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OPs shall refund Rs.3,00,00/- with interest at 10% p.a. on Rs.30,000/- from 02.06.2015, on Rs.1,50,000/- from 30.06.2015, on Rs.20,000/- from 30.05.2015, on Rs.30,000/- from 16.06.2015 and on Rs.70,000/- from 31.07.2015 till realization to the complainant.
3. The OPs shall pay Rs.10,000/- towards cost of litigation to the complainant.
4. The OPs shall comply this order within 60 days from this date.
5. Furnish the copy of this order and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 5^th day of February, 2022)

Documents produced by the Complainant which are marked as Ex.A.1 to Ex.A.11: