CC No.565/2017                                                                          Date of filing:03.04.2017

                                                                                                 Date of Disposal:26.08.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

                                                    BENGALURU– 560 027.                                                  

DATED THIS THE  26^th    DAY OF AUGUST 2019

CONSUMER COMPLAINT NO.565/2017

PRESENT:

Sri    Venkatasudarshan  D.R.  B.Com,LL.M.,              …. President

Smt  L.Mamatha, B.A., (Law), LL.B.                              ….      MEMBER

COMPLAINANT:

M.P. Balakrishnan,

S/o M.K. Nambiar,

68 years, No.15, Balakomalam,

7^th cross, Paschim Orchard,

Abigere, Chikkabanavara (PO),

Bengaluru-560090.

(Complainant by Sri.   Advocate)          

 V/s

OPPONENT:

1. Ms. Disha Choudhary

D/o Vasanth Choudhry, Dreamz Infra

India Pvt. Ltd., No.577/B, 2^nd floor,

Outer Ring road, Teachers colony,

Koramangala, Near silk Board,

2. Sri. Anjanappa

S/o Narayanappa, Chambenahalli,

Dommasandra (P.O), Sarjapura Hobli,

Anekal taluk, Bengaluru.

3. Smt. Yellamma

W/o Anjanappa, Chambenahalli

Dommasandra (P.O), Sarjapura

Hobli, Anekal taluk, Bengaluru.

4. Sri. Manjunath

S/o Anjanappa, Chambenahalli,

Dommasandra (P.O), Sarjapura

Hobli, Anekal taluk, Bengaluru.

5. Sri. Chandra

S/o Anjanappa, Chambenahalli

Dommasandra (P.O), Sarjapura

Hobli, Anekal Taluk, Bengaluru.

6. Sri Subramani .A

S/o Anjanappa, Chambenahalli

Dommasandra (P.O), Sarjapura

Hobli, Anekal taluk, Bengaluru.

7. Sri. Yellappa

S/o Anjanappa, Chambenahalli

Dommasandra (P.O), Sarjapura

Hobli, Anekal taluk, Bengaluru.

8. Smt. Neela

D/o Anjanappa, Chambenahalli

Dommansandra (P.O), Sarjapura Hobli,

Anekal Taluk, Bengaluru.

9. Smt. Beby

D/o Anjanappa, Chambenahalli,

Dommasandra (P.O) Sarjapura Hobli,

Anekal Taluk, Bengaluru.

(Opponent No.2 to 9 deleted by order dated:10.01.2018)

      (Exparte)                                                         

 = = = = = = = = = = = = =                      

Written by Smt. L. Mamatha, Member

              ******

  // ORDER ON MERITS//

1. This complaint was filed by the complainant Sri. M.P. Balakrishnan  on 03.04.2017 Under Section 12 of the C.P. Act 1986 against  Ms. Disha Choudhary praying  to pass an order directing the opponent to refund a sum of Rs.4,90,000/- and to pay damages of Rs.2,00,000/- in all Rs.6,90,000/- along with interest till date as applicable or in the alternative to direct the opponent  to complete construction work immediately and handover the said flat within a reasonable time period etc., on the said property until and unless all the grievances are solved.

2. The brief facts of the case of the complainant can be stated as under;

In the complaint, the complainant states that he booked one flat bearing No.115,2 BHK in the first floor measuring 950 square feet, the apartment known as “Dreams Swagath” along with proportionate undivided share of the land in the property bearing survey No.3 measuring to an extent of 1 acre out of 1 acre 18 guntas and property bearing survey No.4 measuring to an extent of 1 acre out of 1 acre 6 guntas, both property situated at Chambenahalli village, Sarjapura Hobli, Anekal Taluk, Bangalore Urban district  on 26.09.2015 for total consideration of Rs.14,00,000/- .  It is the case of the complainant that  he has paid Rs.1,00,000/- as advance for booking, out of which Rs.50,000/- through debit card and Rs.50,000/- vide SBI cheque No.804735 dated 26.09.2015.  It is also the case of the complainant that a Memo of Understanding was also entered on 27.09.2015.  As per Memo of understanding complainant paid an amount of Rs.2,50,000/- on 10.10.2015 by cash.  The opponent has issued a letter of allotment on 15.11.2015 allotting flat No.115 in the first floor measuring 950 square feet 2 BHK with one car parking. 

3. It is the further case of the complainant that they informed the complainant that they have started the construction work and 5% of the outstanding amount has to be paid for issuing the sale agreement.  Complainant paid Rs.90,000/- on 19.11.2015 vide SBI cheque No.804738 and the agreement of sale was entered into on 07.01.2016.  The complainant also further contends that the another Memo of understanding on 11.02.2016 was entered into in which   they have agreed to pay rent @ 1% per month as benefit on the amount which the complainant  paid on being informed the complainant paid 5% of the outstanding amount  i.e., Rs.50,000/- for the construction agreement.  So the complainant paid Rs.50,000/- on 02.03.2016.  But till date they have not issued any construction agreement.  As on date, the complainant paid in total of Rs.4,90,000/-.  As per sale agreement between the Managing Director of M/s Dreamz Infra India Private Limited and the complainant it was promised to deliver the possession of the flat within 20 months and in the event of delay, both of them agreed to extend a period of 3 months as grace period.  In addition to sale agreement, they have also made and executed another Memo of Understanding on 11.02.2016  in which it was agreed to pay rent at 1% per month as benefit on the amount paid by the complainant.  As per sale agreement and memo of understanding executed in favour of complainant, the construction should have been started.  But surprisingly no construction activities are found at the said land.  Complainant repeatedly visiting their office since he booked the flat to enquire about the status of the project.  All along opponent has been making false promise without any action.  Now their office has been closed.  In this regard, complainant had filed a police complaint at Madiwala police station, Bangalore.  Hence, this complaint.

4. There were nine opponents initially.  After admitting the complaint the notices were ordered to be issued to all the opponents.  They were not served.  The complainant later gave up opponent Nos.2 to 9.  Accordingly they were deleted.  The notice issued to opponent No.1 several times could not be served.  So, the notice was issued through paper publication.  Even the opponent No.1 remained absent.  Hence, the opponent No.1 was placed exparte.

5. In support of the complaint, the complainant has filed his affidavit by way of evidence.  Heard the arguments of complainant.

(1) Whether the complainant has proved the alleged deficiency in service by the opponent?

(2) If so to what relief the complainant is entitled?

Point No.1:- Affirmative.

Point No.2:- Partly in the affirmative.

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

8.   POINT No.1:-   On perusing the pleadings along with documents produced by the complainant, it reveals that the opponent is a developer and he has informed for developing the land and construct apartments in Chambenahalli village, Sarjapura Hobli, Anekal Taluk for forming the private layout.  The opponent promised the complainant that they  are having absolute right, title, interest over the property and which they intend to develop and construct flats and further undertake that the properties are free from all encumbrances, mortgage, lispendence charges, decrees, claims including minor claims etc.,. 

9. The complainant agreed to purchase 2 BHK flat measuring 950 square feet in the project known as ‘Dreamz Swagath’ for a total consideration of the flat Rs.14,00,000/- which is inclusive of car parking charges and other amenities and excluding BWSSB, BESCOM charges, tax, vat, registration charges and stamp duty.  On 26.09.2015 he booked the same flat.  On 27.09.2015 opponent entered into a memo of understanding.  On 07.01.2016 opponent entered into sale agreement and on 11.02.2016 opponent entered into another memo of understanding.  As per the terms and conditions of memo of understanding and sale agreement, period of 24 months and 20 months fixed for completion of entire transaction whichever is earlier.   In case of delay the completion of project, the both complainant and opponent shall agree to extend the time for a period of 6 months and 3 months as a grace period.   Even after grace period if opponent fails to show any improvement in ‘A’ schedule property, the opponent is liable to pay rent at 1% per month as benefit on the paid amount to the complainant.  To substantiate this fact, the complainant filed his affidavit.  In his sworn testimony, he reiterated all the complaint averments the complainant has produced the original receipts dated 26.09.2015, 10.10.2015, 15.11.2015, 02.03.2016 which is marked as Ex.P.1 to Ex.p.4.  and original letter of allotment dated 15.11.2016 which is marked as Ex.P.5. and original agreement of sale dated 07.01.2016 which is marked as Ex.P.6. and original memo of understanding dated 11.02.2016 which is marked as Ex.P.7.  By looking into these documents, it clearly shows that both the parties have entered into agreement of sale on 07.01.2016 and memo of understanding dated 11.02.2016.  The complainant paid Rs.1,00,000/- as advance for booking through debit card payment and by way of cheque bearing No.804735 dated 26.09.2015 drawn on SBI Bangalore.  On 10.10.2015, complainant paid Rs.2,50,000/- by cash. It is supported by receipt No.4133 issued by opponent on 15.11.2015.  On 15.11.2015 complainant again paid Rs.90,000/- through cheque bearing No.804737 drawn on SBI, Bangalore.  On 02.03.2016 complainant paid Rs.50,000/- through cheque bearing No.804739 drawn on SBI, Bangalore.  The opponent acknowledged the receipts of the said amounts which are marked as Ex.P.1 to Ex.P.4.  In total complainant paid Rs.4,90,000/- as advance amount for booking of flat in opponent’s project.  But opponent has not developed the property by forming layout nor putup construction of the flats.  Complainant repeatedly visit the opponent office to enquire about the status of the project.  But opponents have been making false promise without any action.  By all these, it is very clear that the opponent failed to construct flats and execute sale deed in favour of the complainant.  Therefore from the evidence available on record, it clearly goes to show that the opponent neither started project nor refunded the advance amount to the complainant.  Due to this the complainant had to incur financial loss and suffered mental agony.  Complainant repeatedly requested the opponent to either refund the amount or to execute sale deed in favour of the complainant.  But opponent kept on postponing.  If at all the opponent had completed the project or execute the registered sale deed as per the terms of memo of understanding and sale agreement, the opponent ought to have produced relevant evidence.  But there is no such evidence. For that matter the opponent has not at all entered appearance and remained exparte.  Thus the oral and documentary evidence produced by the complainant has remained unchallenged and undisputed.  Thus therefore, it is proper to accept the case of the complainant that the opponent neither completed the project and handover the flat to him nor refund the advance booking amount.  To disbelieve the case of the complainant nothing is on record.  Inspite of repeated requests the opponent never bothered to fulfill the demand of the complainant.  This clearly shows that there is deficiency in service on the part of opponent.  Hence, point No.1 is held in affirmative, and infavour of the complainant. 

10. POINT Nos.2& 3  :-  The view of the finding recorded on the point No.1 holding in the affirmative, the next question that arise for our consideration is the relief to which the complainant is entitle.  In this case the complainant sought for a direction to the opponent to refund a sum of Rs.4,90,000/- along with interest till date as applicable.  This prayer is fully justified.   As per Memorandum of Understanding opponent was agreed to pay rent @ 1% per month as benefit on the on the paid amount to the complainant.  So, we deem fit and proper to award interest at the rate of 12% p.a. from the date of  respective payment till the date of realization.   

11. The opponent by his conduct of not refund advance amount or to start construction work in the said project not even responding to the demand of the complainant has driven the complainant to file this complaint.  Due to the inaction on the part of  opponent, complainant has been  put to lot of mental stress and strain in addition to physical discomfort resulting in mental agony.  This also needs to be compensated.  We deem fit and proper to award a sum of Rs.10,000/- under this head to the complainant as compensated.

12. By not even responding the demand of the complainant, the opponent was driven the complainant to file this complaint.  Therefore the opponent has to make payment of Rs.3,000/- towards litigation expenses to the complainant.  Accordingly, we answer point No.2 partly in favour of the complainant and proceed to pass the final order.                   

The complaint filed by the complainant Sri. M.P. Balakrishnan u/s 12 of the Consumer Protection Act is allowed holding that there is deficiency in service on the part of the opponent.

The opponent is directed to refund a sum of Rs.4,90,000/-(Four lakh ninety thousand only) along with interest 12% p.a. from the date of respective payments till the date of realization.

The opponent is further directed to pay Rs.10,000/- (Ten thousand only ) compensation for causing mental agony.

The opponent is further directed to pay Rs.3,000/- (Three thousand only) as cost of this litigation to the complainant.

The opponent is directed to pay aforesaid amount within 30 days from the date of this order.

            Supply free copy of this order to both the parties.

(Dictated to the Steno, typed by her, transcript corrected, revised and then pronounced by the open Forum on 26^th day of August 2019)

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri. M.P. Balakrishnan, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Original receipt dated 26.09.2015.
2. Original receipt dated 10.10.2015.
3. Original receipt dated 15.11.2015.
4. Original receipt dated 02.03.2016.
5. Original letter of allotment dated 15.11.2015.
6. Original agreement of sale dated 07.01.2016.
7. Original memo of understanding dated 11.02.2016.

Witness examined on behalf of the Opposite Parties:

• Nil -

List of documents filed by the Opposite Party:

• Nil -