CC No.1415.2017

Filed on 03.06.2017

Disposed on.31.05.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 31^st DAY OF MAY 2018

CONSUMER COMPLAINT NO.1415/2017

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

             Smt.L.MAMATHA, B.A., (Law), LL.B.

                      MEMBER

                                       V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainants on 03.06.2017 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to refund full sale consideration paid by the Complainants for a sum of Rs.9,50,622/- being the advance sale consideration amount received by the Opposite Parties under the MOU dt.10.04.2015 and subsequently on when the complainants have paid last payment and discount vouchers amount along with interest @ 24% p.a. from the date of the agreement till the date of realization and direct the Opposite Parties to pay rents per month for a sum of Rs.25,000/- for the delay in handing over the flat from the dated of booking of flat till realization, to pay the Complainants a sum of Rs.50,000/- towards damages for causing mental agony and hardship and deficiency of service.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainants alleges that the Opposite Party No.1 is represented by its Managing Director and Opposite Party No.2 is the Director of the Opposite Party No.1 Company and they have represented that they are having vast experience in the field of development of Real estate/establishment of Apartments, residential flats in various parts of Karnataka State and other places.   The Complainants were very much interested to buy/purchase flat in one of Opposite Parties projects namely “Dreamz Suparachit” and has booked the flat on 25.03.2015 ad Opposite Parties have approved the booking of flat by Complainants and agreed to execute Memorandum of understanding for booking of an apartment/flat measuring 900 sq.ft in the above said project and the total sale consideration is fixed for a sum of Rs.23,00,000/-for that both Complainants and Opposite Parties have agreed with terms and conditions.  At the time of booking of flat and subsequently in respect of flat in “Dreamz Suparachit the Complainants have paid advance sale consideration of Rs.3,00,000/- to the Opposite Parties as follows:-

1. Rs.1,00,000/- paid by way of cheque bearing No.831533, dt.25.03.2015, drawn on State Bank of India.
2. Rs.2,00,000/- paid by way of cheque bearing No.831534, dt.05.04.2015, drawn on State Bank of India.

And the Opposite Parties have accepted and issued the receipts for having received the advance sale consideration.

3. Since the Opposite Parties are unable to procure the relevant documents and plan to commence the project and since there was a delay in commencing construction as promised by Opposite Parties and the Opposite Parties have opted for swapping from the booked project to the other existing project and also represented that they are the absolute owners and in possession and enjoyment of immovable property bearing Survey No.130/3, measuring to an extent of 33 Guntas situated at Horamavu Village, K.R.Puram Hobli, Bangalore East Taluk and Opposite Parties have promised that they will construct flats in the above said property i.e proposed project “Dreamz Saakar’ and after complete of construction and after obtaining completion certificate and Opposite Parties have agreed to execute sale deed infavour of Complainants and as per the agreed terms. The Complainants have submitted the cancellation letters and booking form 03.04.2015 and approved from swapping to Saakar.  Thereafter a Memorandum of Understanding dt.10.04.2015 was made and executed between Complainants and Opposite Parties for booking of an apartment consisting 2 BHK, measuring 1000 sq.ft in the above said apartment along with undivided share in Schedule ‘A’ property of project called “Dreamz Saakar” as mentioned in the MOU for total sale consideration of Rs.23,00,000/- and in continuation of advance sale consideration paid as earlier agreed in project called “Dreamz Suparachit”.  The Complainants have paid additional advance sale consideration of Rs.6,50,000/- to Opposite Parties as follows:-

1. Rs.2,32,000/- by way of cheque bearing No.670074, dt.05.06.2015, drawn on ICICI Bank.
2. Rs.3,90,000/- by way of cheque bearing No.831535, dt.27.04.2015, drawn on State Bank of India.
3. Rs.28,622/- by way of cheque bearing No.193722, dt.11.11.2016, drawn on ICICI Bank.

In total Complainants have paid for sum of Rs.9,50,622/-.  The Complainants have submitted the cancellation letters changing from 1000 sq.ft to 1025 sq.ft and booked for 1025 sq.ft vide booking form 09.07.2016. 

4. The Opposite Parties have been postponing the execution and registration of the sale deed of flat on one or the other pretext, even though Complainants have approached several times to office of the Opposite Parties with balance sale consideration and requested to execute the sale deed by accepting the balance sale consideration. Since the Opposite Parties are unable to procure the relevant documents and plan to commence the project from the concern department and since there was a delay in commencing construction as promised by Opposite Parties. There has been considerable delay in completion of the project and the said delay cannot be attributable to any of the reasons mentioned in the Memorandum of Understanding.  The Complainants have not defaulted in matter of payment of sale consideration as per the MOU and sale agreement.  The delay in execution of the project is due to negligent attitude of the Opposite Parties, hence there is deficiency of service on Opposite Parties, which has resulted in severe hardship and have caused mental agony to the Complainants.  The Complainants have paid the sale consideration much earlier to the due dates mentioned in the payment schedule and the Opposite Parties have further requested to pay interest on the said amount by way of rents, from the date of booking till handing over the flat to the Complainants.  The delay in handing over the flat and they have initially forced the Complainants to stay in rented accommodation and they have paid exorbitant rents and thereby they have incurred heavy financial loss.  The Opposite Parties are defaulted in the payment of interest as agreed in MOU.  The Opposite Parties are failed to deliver possession of the apartment on time, they landed in huge financial debt.  The Complainants were forced undergo this hardship because of the Opposite Parties neglected by negligent attitude in not completing and handing over of their flat on time.  Hence, the Opposite Parties are also guilty of deficiency of service on their part.  The Complainants have issued a Legal Notice to the Opposite Parties calling upon the Opposite Parties to execute the sale deed or refund the advance sale consideration of Rs.9,50,622/-.  The Opposite Parties have not received the legal notice and the said notice is returned with Shara that office is closed.  On enquires and found out that the project of Opposite Parties i.e., “Dreamz Saakar” has still unable to procure the relevant documents and plan to commence the project and since there was a delay in commencing construction as promised by the Opposite Parties in respect of the project.  Hence this complaint.

5.  In response to the notice, the Opposite Party put their appearance through their counsel, but failed to file their version.

6. The 2^nd Complainant, Sri.Venkatesh Murthy B.M has filed his affidavit by way of evidence and closed his side.  Heard argument of Complainants.

7.      The points that arise for consideration are:-

1. Whether the Complainants have proved the unfair trade practice adopted by the Opposite Parties ?
2. If so, to what relief the Complainants are entitled ?

8.      Our findings on the above points are:-

                   POINT (1)      :- Affirmative

POINT (2)      :- As per the final Order

REASONS

9.   POINT NO.1:- It is the case of the Complainants that the Complainants were very much interested to buy/purchase flat in one of Opposite Parties projects namely “Dreamz Suparachit” and has booked the flat on 25.03.2015 ad Opposite Parties have approved the booking of flat by Complainant and agreed to execute Memorandum of understanding for booking of an apartment/flat measuring 900 sq.ft in the above said project and the total sale consideration is fixed for a sum of Rs.23,00,000/-for that both Complainant and Opposite Parties have agreed with terms and conditions.  This is not been denied by the Opposite Parties. To substantiate this fact, the 2^nd Complainant Sri.Venkatesh Murthy B.M has filed his affidavit, in his sworn testimony, he has reiterated the same and produced the Booking Form.  As looking into the Booking Form, it is dt.25.03.2015, No.16340 the Complainants by paying advance booking amount of Rs.4,00,000/- booked a 2 BHK apartment measuring 900 Sq.ft in the proposed apartment ‘Dreamz Suparachit’.   Even this evidence is also not been disputed by the Opposite Parties.  To discard the evidence of the Complainant, there is no contra evidence.  Therefore, it is proper to accept the contention of the Complainant that on 25.03.2015 the Complainants by paying advance amount of Rs.4,00,000/- booked a 2 BHK Apartment measuring 900 sq.ft., and the total cost of the proposed apartment is Rs.23,00,000/-.

10.  It is further case of the Complainants that at the time of booking of flat and subsequently in respect of flat in “Dreamz Suparachit” the Complainants have paid advance sale consideration of Rs.3,00,000/- to the Opposite Parties as follows:-

1. Rs.1,00,000/- paid by way of cheque bearing No.831533, dt.25.03.2015, drawn on State Bank of India.
2. Rs.2,00,000/- paid by way of cheque bearing No.831534, dt.05.04.2015, drawn on State Bank of India.

And the Opposite Parties have accepted and issued the receipts for having received the advance sale consideration. Since the Opposite Parties are unable to procure the relevant documents and plan to commence the project and since there was a delay in commencing construction as promised by Opposite Parties and the Opposite Parties have opted for swapping from the booked project to the other existing project and also represented that they are the absolute owners and in possession and enjoyment of immovable property bearing Survey No.130/3, measuring to an extent of 33 Guntas situated at Horamavu Village, K.R.Puram Hobli, Bangalore East Taluk and Opposite Parties have promised that they will construct flats in the above said property i.e proposed project “Dreamz Saakar’ and after complete of construction and after obtaining completion certificate and Opposite Parties have agreed to execute sale deed infavour of Complainants and as per the agreed terms.  The Complainants have submitted the cancellation letters and booking form 03.04.2015 and approved from swapping to Saakar.  Thereafter a Memorandum of Understanding dt.10.04.2015 was made and executed between Complainants and Opposite Parties for booking of an apartment consisting 2 BHK, measuring 1000 sq.ft in the above said apartment along with undivided share in Schedule ‘A’ property of project called “Dreamz Saakar” as mentioned in the MOU for total sale consideration of Rs.23,00,000/- and in continuation of advance sale consideration paid as earlier agreed in project called “Dreamz Suparichit”.  The Complainants have paid additional advance sale consideration of Rs.6,50,000/- to Opposite Parties as follows:-

1. Rs.2,32,000/- by way of cheque bearing No.670074, dt.05.06.2015, drawn on ICICI Bank.
2. Rs.3,90,000/- by way of cheque bearing No.831535, dt.27.04.2015, drawn on State Bank of Inida.
3. Rs.28,622/- by way of cheque bearing No.193722, dt.11.11.2016, drawn on ICICI Bank.

In total Complainants have paid for sum of Rs.9,50,622/-.  The Complainants have submitted the cancellation letters changing from 1000 sq.ft to 1025 sq.ft and booked for 1025 sq.ft vide booking form 09.07.2016.  Even this fact is also not denied by the Opposite Parties.  Further to substantiate this fact, the Complainant No.2 in his sworn testimony, he has reiterated the same and produced Memorandum of Understanding executed by the Opposite Parties with Complainants.  As per the Memorandum of Understanding, the Complainants agreed to purchase flat for a sum of Rs.23,00,000/-.

MODE OF PAYMENT WITH RESPECT TO THE SCHEDULE ‘B’ PROPERTY

11.  Further Complainants produced receipts, under receipt No.2150 dt.02.06.2015, the Opposite Parties have received Rs.2,32,000/- from the Complainants towards the purchase of flat in “Dreamz Saakar. This evidence is also remains unchallenged.  To disbelieve the evidence of the Complainants, there is no contra evidence.  Therefore, it is proper to accept the contention of the Complainants that the Opposite Parties have delay in commencement of the project called “Dreamz Suparachit”.  For that reason represented to “Dreamz Saakar” from Dreamz Suparachit” the flat in “Dreamz Saakar” the total consideration of the flat is Rs.23,00,000/- and in all the Complainants paid a sum of Rs.9,50,622/- as advance.

12.  It is further case of the Complainants that the Opposite Parties have been postponing the execution and registration of the sale deed of flat on one or the other pretext, even though Complainants have approached several times to office of the Opposite Parties with balance sale consideration and requested to execute the sale deed by accepting the balance sale consideration, but the Opposite Parties have postponed the execution of sale deed.  There has been considerable delay in completion of the project and the said delay cannot be attributable to any of the reasons mentioned in the Memorandum of Understanding.  The Complainants have not defaulted in matter of payment of sale consideration as per the MOU and sale agreement.  The delay in execution of the project is due to negligent attitude of the Opposite Parties, hence there is deficiency of service on Opposite Parties, which has resulted in severe hardship and have caused mental agony to the Complainants.    This fact is also not been denied or disputed by the Opposite Parties.  Further to substantiate this, the Complainant No.2 in his sworn testimony, he has reiterated the same and also the evidence of the Complainants remains unchallenged.  To disbelieve the evidence of the Complainant, there is no contra evidence.  Furthermore from the evidence placed by the Complainants, it is clear that the Opposite Parties have not completed the Project in “Dreamz Saakar” even though they have received substantial amount of Rs.9,50,622/- and the Complainants demanded to execute the sale deed by receiving the balance sale consideration, but Opposite Parties have failed to receive the balance consideration and to execute the sale deed since the Project is not completed, thereby it causes hardship and also mental agony to the Complainants since the Complainants have invested huge amount of their hard earned money.

13.  It is further case of the Complainants that the delay in handing over the Flat and they have initially forced the Complainants to stay in rented accommodation and they have paid exorbitant rents and thereby they have incurred heavy financial loss.  Nodoubt this fact is also not been denied by the Opposite Parties.  To substantiate this fact, the Complainant No.2 in his sworn testimony, he has reiterated the same.  Except the interested version of the Complainant, the Complainant has not placed any evidence.  If the Complainants were stay in rented accommodation by paying exorbitant they could have produce the same.  To substantiate his contention, thereby it is not proper to accept the contention of the Complainants that they have paid exorbitant rents and stay rented accommodation.  From the evidence of the Complainants, it is clear that undoubtedly there is a delay caused by the Opposite Parties to complete their Project called “Dreamz Saakar” and that huge amount received by the Opposite Parties as advance from the Complainants or utilize by the Opposite Parties for their business purpose and gained out of that advance amount.  On the other hand, the Complainant by investing their hard earned money in any financial institution the said amount will definitely get interest. On the other hand, the Complainants by investing their money with Opposite Parties, but the Opposite Parties failed to execute the sale deed as promised.  On the other hand, the Opposite Parties utilized the amount in their business which cause hardship to the Complainants and also mental agony.  Hence, thereby it amounts to deficiency of service on the part of the Opposite Parties.    Hence, this point is held in Affirmative.  

 14. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is partly allowed holding that there is deficiency of service on the part of the Opposite Parties.

The Opposite Parties are directed to refund advance amount of Rs.9,50,622/- to the Complainants along with interest at 10% p.a. from 01.06.2017, till the date of payment.

The Opposite Parties are further directed to pay sum of Rs.5,000/- as cost of this litigation to the Complainants. 

The Opposite Parties are directed to pay aforesaid amount within 45 days from the date of this order.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, dt.31^st day of May 2018).

MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Venkatesh Murthy B.M, who being the                                 2^nd Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of Booking Form.
2. Copies of receipts.
3. Copies of cancellation letter.
4. Copy of Re Booking Form.
5. Copies of MOU.
6. Copies of Receipts.
7. Copy of cancellation Letter.
8. Copy of booking form.
9. Office copy of Legal Notice, Postal receipts and original postal and courier retuned covers.

Witness examined on behalf of the Opposite Parties:

                                        -NIL-

List of documents filed by the Opposite Party:

                                      -NIL-

MEMBER                                                                          PRESIDENT