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

DATED 07^TH DAY OF OCTOBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  complaint has been filed under section 12 of C.P.Act, for the  following reliefs

1. Direct the OP to refund the advance amount of Rs.2,45,000/- to the complainant along with interest at 24% p.a. from the date of payment till the date of actual payment.
2. Further direct the OP to pay a sum of Rs.1,00,000/- towards mental agony and physical strain caused to the complainants and also towards cost of these proceedings and such other reliefs.

2. The case of the complainant in brief is as under:

The complainant with an intention to purchase the plot bearing No.216 at the rate of Rs.650/- per sq.ft. for sale consideration of Rs.9,75,000/- entered into an agreement with OP-1. The complainant made payment to OP-1 to the tune of Rs.2,45,000/-  by means of 03 cheques. Even though OPs agreed to execute the sale deed, but they failed to do so. Therefore, by issuing legal notice dt.02.03.2015, he called upon the OPs to refund his money, but OPs failed to do so. Hence, this complaint against the OPs for deficiency of service.

3. The notice against OP-1 has been dispensed with. Despite receipt of notice OP-2 & 4 failed to appear before this commission. OP-6 reported as died, but no application to bring Lrs of OP-6 is filed.  OP-3 & 5 appeared through their counsel and belated version on their behalf was rejected.

4. The complainant filed his affidavit evidence and relies on documents produced with the complainant.

5. The rejection of application of OP-3 & 5 to receive the version was challenged by OP-3 & 5 by filing Revision Petition.88/2016. Even though Revision petition came to be dismissed on 11.03.2022, but these OPs were permitted to file affidavit evidence and documents.  Accordingly, the Special Power of Attorney holder of OP-3 & 5 has filed affidavit evidence and relies on 01 document.

6. Heard the arguments. Perused documents.

7. The following points arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

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

       Point No.1:- Affirmative in part.

      Point no.2:- Affirmative in part.

      Point No.3:-As per the final order.

REASONS

9. Point Nos.1 and 2: The complainant has filed affidavit evidence in support of  averments made in the complaint and relies on 04 documents. Document no.1 is the agreement of sale dt.22.04.2004 between OP-1, represented by OP-2 and the complainant in respect of flat no.216 for sale consideration of Rs.9,75,000/-. It further indicates that OP-1 through OP-2 received  an advance amount of Rs.2,45,000/- in 03 installments. The contesting OP-3 & 5, who have filed their affidavit evidence  of the Special Power of Attorney holder never disputed the payment of Rs.2,45,000/-  on 02.03.2015 legal notice issued by the complainant to OPs not served.

10. The Special Power of Attorney holder for OP-3 & 5 contends that  there is delay in filing of the complaint. It is relevant to note that even though an agreement is dt.22.04.2004, by issuing legal notice dt.02.03.2015 the complainant has filed this complaint within 02 years from 02.03.2015. Therefore, OP-3 & 5 are not right in saying that the complaint is barred by limitation. The SPA holder of OP-3 & 5 has stated in the affidavit that the agreement of sale is in respect of agricultural land, but the agreement of sale is in respect of flat. More ever the complainant has not been asking for execution of  sale deed, but complainant seeks an order for refund of money. OP-3 & 5 have admitted in the Ex.R1, SPA deed that OP-5 P.S.Bhanu Prakash is the managing director of Aishwarya Buildtech Pvt. Ltd.,  i.e. OP-1. Ex.R1 does not indicate OP-3 G.Shankar is nothing to do with OP-1 company. Therefore, the contentions through evidence of SPA holder of OP-3 & 5 are rejected.

11. It is proved that no steps against deceased OP-6 are taken. OP-1to 5 are liable to refund Rs.2,45,000/-. The complainant seeks 24% p.a. interest on this amount and Rs.1,00,000/- as compensation. This claim towards interest and compensation is not only exorbitant, complainant is not entitled to compensation in addition to interest in view of the decision of Hon’ble Supreme Court of India, in 2022 (2) CPR 1- Experian Developers Pvt. Ltd. V/s Sushma Ashok Shiroor. It is proper to award interest at 9% p.a. on Rs.2,45,000/- as compensation from the date of payment till realization. The complaint against deceased OP-6 requires to be dismissed as abated. It is proper to impose time limit to OP-1 to 5 to comply this order.

12. Point no.3:-.  Accordingly, we proceed to pass the following 

O R D E R

1. The complaint against OP-1 to 5 is allowed in part.
2. The complaint against OP-6 is abated.
3. OP-1 to 5 shall refund Rs.2,45,000/- with interest at 9% p.a. as compensation  from the date of payment till realization  and shall pay Rs.10,000/- towards cost of litigation.
4. OP-1 to 5 shall comply this order within 60 days from this date, failing which OP-1 to 5 shall pay interest at 12% p.a. as compensation on Rs.2,45,000/- after expiry of 60 days from this date till realization.
5. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 07^th  day of October, 2022)

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

Documents produced by the representative of opposite party No.3 & 5 – R.W.1 :