BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

14^th DAY OF JULY 2016

O R D E R

SMT. P.K SHANTHA, MEMBER

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OP) with a prayer to direct the OPs to pay the amount of Rs.50,000/- along with interest @ 25% p.a on the said amount, to pay Rs.1,00,000/- towards compensation, to pay sum of Rs.50,000/- towards mental agony also direct the OPs to pay Rs.50,000/- towards all expenses and litigation cost.

2. The brief averments made in the complaint are as under:

That the OP Company has introduced a scheme in the name and style ‘Max Meadows’ Phase III for developing a layout comprising of sites with various dimensions.  The said project was advertised by the OP.  The complainant in the hope owning a property, approached the OP on 22.05.2013 and booked a site in the said project with a dimension of 30x40 feet.  The complainant has paid an advance amount of Rs.50,000/- through cheque dated 27.05.2013.  The OP has allotted site bearing No.321 to the complainant for a total sale consideration amount of Rs.10,80,000/-.  On 10.06.2013 the OP sent a mail to the complainant stating that the proposed project Max Meadows Phase III is not approved by the BIAPPA and necessary steps had been taken to get it approved by the BIAPPA which would be by the end of October 2013.  The OP further assured in the said e-mail that in the event of not getting the approval from BIAPPA by the end of October, the OP will refund the entire booking amount of Rs.50,000/- within 30 days.  The OP having received the advance amount as stated above failed to develop the layout within the stipulated period and also failed to obtain necessary permission from BIAPPA.  Therefore, the complainant demanded OP to refund the advance amount paid by him.  Despite repeated visits the OP failed to refund the advance amount but came up with another proposal that they were introducing another project by name ‘Max Abhudaya’ a layout with best amenities with all required approvals.  The OP further assured the complainant that they would adjust/transfer the above said sum of Rs.50,000/- which was to be refunded by the OP to the complainant as booking amount towards booking of a site bearing No.108 in the new project called ‘Max Abhudaya’.  OP issued the complainant a form dated 24.05.2015 showing the details of the aforesaid transfer.  Inspite of repeated requests by her for an update on the progress of the said project, there was no response from OP side.  Hence the complainant was constrained to cancel the booking of the site and requested for refund of the payment made by her.  OP has not paid the advance booking amount.  Complainant got issued legal notice to the OPs on 28.12.2015 calling upon both the OPs to pay sum of Rs.50,000/- along with interest & damages.  OP has not replied to the said notice.  Complainant felt deficiency in service on the part of OPs.  Hence, the complainant has come up with the present complaint.

3. The notice of complaint was issued to the OPs and despite service of notice, OPs failed to appear and contest the complaint and has been placed ex-parte.  Thereafter, the complainant filed his affidavit by way of evidence together with documents.

4. Perused the averments made in the complaint, affidavit filed in lieu of evidence, documents filed by the complainant and other materials placed on record.

5. Admittedly the complainant booked a site on 22.05.2013 under the project called ‘Max Meadows’ Phase III with a dimension of 30x40 by paying advance booking amount of Rs.50,000/- through cheque dated 27.05.2013 drawn on State Bank of Mysore, Yelahanka Branch, Bangalore.  The complainant was allotted a site bearing No.321 for a total sale consideration amount of Rs.10,80,000/- by the OP.  The complainant has produced documents to that effect.  OP sent e-mail dated 10.06.2013 to the complainant stating that the proposed project Max Meadows Phase III is not approved by the BIAPPA and the necessary steps have been taken to get approval by the BIAPPA by the end of October 2013.  The OP further assured in the said e-mail that in the event of not getting the approval from BIAPPA by the end of October they will refund the entire booking amount of Rs.50,000/- within 30 days.

6. The complainant was constrained to contact the OP regularly seeking refund of Rs.50,000/-.  OP giving false promises that they would refund the amount on different dates but failed to do so.  But OP came up with new proposal that they were introducing another project by name ‘Max Abhudaya’ a layout with best amenities with all the required approvals.  The OP further assured that they would adjust/transfer the said Rs.50,000/-.  Thereafter the OP issued a form dated 24.05.2015 showing the details of the aforesaid transfer which we can see in document No.5.  In spite of repeated requests by the complainant for an update on the progress of the said project, there was no response.  Under the circumstances the complainant was constrained to cancel the booking of the site and asked for refund of the payment at the earliest. 

7. On 19.07.2015 OP issued letter to the complainant assuring refund of Rs.50,000/- within one month.  But OP failed to pay the advance booking amount.  Complainant having no other option issued legal notice on 28.12.2015 to both the OPs.  OPs neither replied the notice nor refunded the advance booking amount.  The failure on the part of the OPs in developing the layout as promised by them within stipulated period amounts to deficiency of service.  This conduct of OPs amounts to gross deficiency of service.

8. The OP having received the advance amount, as stated above, failed to develop the layout within the stipulated period and also failed to obtain necessary permission from BIAPPA.  Therefore, the complainant demanded OP to refund the advance amount paid by him.  Despite repeated visits the OPs failed to refund the advance amount but came up with a another project by name ‘Max Abhudaya’ a layout with best amenities with all required approvals.  Therefore, it is evident that, there is a deficiency of service on the part of OPs.  Due to the irresponsible behavior on the part of OPs, the complainant has suffered financial loss and mental agony.  The conduct of the OP in not providing a site amounts to gross negligence and deficiency in service on their part.

9. The very fact of OPs not contesting the proceedings leads us to draw an inference that OPs are admitting the claim of the complainant.  There is no reason to disbelieve the unchallenged affidavit evidence of the complainant and the documents produced.  The complainant suffered inconvenience and mental agony due to non performance of the promise made by the OPs.    The OPs did not appear and contest the claim of the complainant.  We are satisfied that the complainant has proved the deficiency in service against OPs.  Under the circumstances, we are of the considered view that, OPs are liable to refund the advance booking amount of Rs.50,000/- to the complainant together with interest at 18% p.a from the date of payment till the date of realization and compensation of Rs.10,000/- towards mental agony and hardship caused to the complainant.  Accordingly, we proceed to pass the following:

10. In the result, we proceed to pass the following:

       O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are directed to refund advance booking amount of Rs.50,000/- to the complainant together with interest @ 18% p.a from the date of payment till the date of realization.  Further OPs are directed to pay compensation of Rs.10,000/- towards mental agony and hardship caused to the complainant along with litigation cost of Rs.2,000/-.

This order is to be complied within 30 days from today.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 14^th day of July 2016)

MEMBER                            MEMBER                     PRESIDENT

Vln* 

COMPLAINT No.599/2016

Witnesses examined on behalf of the complainant dated 17.06.2016.

1. Smt.N.Mamatha.

   Witnesses examined on behalf of OPs – Nil.

   Documents produced by the OPs - Nil

MEMBER                           MEMBER                        PRESIDENT

Vln*