CC No.1015.2016

Filed on 21.07.2016

Disposed on.23.06.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 23^rd DAY OF JUNE 2018

CONSUMER COMPLAINT NO.1015/2016

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 Complainant on 21.07.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay an amount of Rs.6,00,000/- towards reimbursement of the booking amount of Rs.3,00,000/- paid by complainant along with interest at 24% p.a. and further be directed to pay the penalty of Rs.3,00,000/- by way of damages totally amounting to Rs.6,00,000/- with interest till realization of the amounts.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Opposite Party is engaged in the development of Residential Apartment Project owned by it in the name and style “Smondo.4.0” situated at Electronic City, Neo Town Road, Neo Town, Bangalore-99.  The Opposite Party widely advertised the Project “Smondo.4.0” vide media channels, and the Complainant thereafter was lured into investing into the Project as promised by the Opposite in its advertisements.  In terms of the promises and representations offered by Opposite in its brochures and advertisements calling upon the Public to invest in its Project “Smondo.4.0”, the Complainant believing the said promises and representations of Opposite Party, booked one 3 BHK Apartment/Unit.No.C0502, measuring 1179 sq.ft, contained in the 5^th Floor, C Wing in the Project Patel Realty “Smondo.4.0” and paid Opposite Party an amount of Rs.2,97,000/- under Cheque, No.827482 dt.02.09.2013 drawn ICICI Bank & paid Rs.3,000/- towards TDS under Form 26 QB to Income Tax as provided under.  The Opposite Party issued receipt dt.10.09.2013 acknowledging receipt of the full booking amount of Rs.3,00,000/- from the Complainant.  As per Unit details mentioned in the Booking Form, the allotted Apartment Unit.No.C0502 would cost Rs.57,31,022/- on a net basis, would be north facing, that the Complainant was obligated to make a premium payment of Rs.50/- the base rate would be Rs.3,550/- per Sq ft along with one Car Park, and the remainder payments of would be under Installments.  Clause-14 of the Booking Form of Opposite Party reads as follows:-

“For any reason, whatsoever, if Opposite Party decides not to go head with the Project, then such decision of Opposite Party shall be final and binding and cannot be put in question.  In such a situation, the Opposite Party will refund the amount paid by the Applicant, without any interest or compensation within three months or such other extended time from the date of the Project not being executed”.

From the reading of the aforementioned Clauses it can be fairly understood that if the Opposite Party is not interested in executing the Project, then in such circumstances the Opposite Party will be obligated to refund the entire Booking amount to Applicant within three months from the date of the Project not being executed. The Complainant out of his hard earned savings, was desirous of investing in the Project and with great expectations thinking that the Project would take off and be completed within the time lines a represented by the Opposite Party made the investment to the Opposite Party.  From the date of investment of the Booking Amount, it was noticed that the Opposite Party was negligent and had not commenced with the execution of the Project.  Towards the same the complainant requested for follow ups including execution of Agreements, however the Opposite Party issued a belated reply on 15.04.2014 from its nominated agent stating that: “The project is expected to launch postelection results.  We have not got any official information from Patel on the exact launch date”  Thereafter the Complainant being shocked of the evasive reply, the delay and not confirmation of launch of project, replied on 26.06.2014 and Opposite Party stating that: “booking at Smondo 4 on September 5, 2014 and was told that project will take off in next 1-2 months.  The Complainant has not heard on any progress of the project from Opposite Party. On receipt of the Email dt.26.06.2014 issued by the complainant, after a lapse of 10 months Opposite Party replied on 17.04.2015 and apologized for the delay and issued false promises stating that they would commence construction on the Project, and sought time from the Complainant to bear with the delay and also with the execution of the Agreement.  Since there was no response from Opposite Party on 09.07.2015 the Complainant vide Email requested further clarification and sought escalation of the matter to Opposite Party Managing Director, and on receipt of the said Email, the Opposite Party issued a Reply vide Email dt.09.07.2015 admitting thee was further delay in launch of the Project.  Thereafter the Complainant vide Email dt.11.07.2015 wrote stating that there was too much delay and that he was put to loss and that he could have invested in other projects as thee was a delay of more than 2 years, and requested the Opposite Party for full honest disclosures on the launch or cancellation of the project to consider alternative investment, and on 11.07.2015 the Opposite Party issued a reply stating that they would require more time and sought two more months to commence with the launch of the Project clearly admitting their deficiency of service, negligence and cheating attitude.  Thereafter on 18.11.2015, the Complainant under Email wrote to the Opposite Party requesting for full disclosures so as to commence the cancellation process and sought for compensation on account of the delay caused on the part of the Opposite Party.  Thereafter the Opposite Party stopped issuing any replies and the complainant issued several emails dt.22^nd November 18^th December 2015, and 12^th February 2016 intimating the cancellation of the booked Apartment and requested for the refund of Rs.3,00,000/- paid to the Opposite Party, towards which the Opposite Party on 12.02.2016 issued a reply admitting their liability and sought time to follow up on the status.  Thereafter, since the Opposite Party did not reply or make reimbursement of the advance amount as promised the Complainant vide Email dt.07.03.2016, 23.03.2016, 29.03.2016, 30.03.2016, 31.03.2016 & 01.04.2016 sought for refund of Rs.3,00,000/- along with interest and penalty.  However the Opposite Party though having received the request mails for refund of the advance amount issued by the complainant has not replied or made payments thereby clearly admitting its liability, deficiency of servicer and negligence to the complainant. The Opposite Party and its Board of Directors have cheated the complainant by luring and inducing him to enter into Contact towards the sale of the Apartment, on the promise of launching the Project, with an illegal intention, to defraud, misappropriate, to make a wrongful gain, and to cause loss to the complainant and have collectively committed the offences against the Complainant as set out above including that of breach of trust.  The Complainant has suffered immense financial loss, hardship, mental trauma and distress all account of the Opposite Party and its Board of Directors due to their criminal intentions resulting in deficiency of service and negligence to the Complainant. On many occasions by oral requests, mails, Complainant has demanded to refund advance amount along with interest.  The Opposite Party has intentionally refused to make the payment to the Complainant.  The Opposite Party is wrongfully retaining the advance amount of Rs.3,00,000/-.  The Complainant issued Legal Notice on 25.04.2016 to the Opposite Party calling upon the Opposite Party to refund the advance amount.  The Legal Notice was served on the Opposite Party on 30.04.2016.  The Opposite Party has not replied to the Legal Notices nor failed to refund the advance amount.   Hence this complaint.

3. In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.  In the version the Opposite Party denied all the allegations, averments, contentions made in the complaint.  The complaint is neither maintainable on law nor on facts and is liable to be dismissed.  This Hon’ble Forum does not have Jurisdiction to entertain the complaint as there is no deficiency of service as alleged by the Complainant.    The Opposite Party is indulged in business of construction and development of real estate across the globe.  The Opposite Party is indulged in business of construction and development of real estate, IT Park, SEZ, Retail, Entertainment, Hospitality and Waterfronts Developments and has completed several renowned projects across the globe and is well known for its quality workmanship.  In the instant complaint is seeking refund of booking amount of Rs.2,97,000/- from the Opposite Party. The Opposite Party is ready and willing to refund the booking amount of Rs.2,97,000/- to the Complainant, the complainant on the contrary did not accept the refund of booking amount and have come before this Hon’ble Forum alleging deficiency of service.  The Complainant is entitled only for refund of the booking amount of Rs.2,97,000/- without interest.  It is well aware to the Complainant that they are only entitled for the refund of the booking amount as per the terms and conditions agreed at the time of Booking of the Flat.  Hence, on this ground also, the complaint deserves to be dismissed.  The claims of deficiency of service and compensation for mental agony are denied and frivolous.  The instant complaint is liable to be dismissed for want of jurisdiction and want of cause of action against the Opposite Party.  The complaint has been filed on false and frivolous facts to obtain unjust enrichment from the Opposite Party.  Even when there exists no cause of action against the Opposite Party and prays to dismissed the complaint.

4.   The Complainant, Sri.Pankaj Agarwal filed his affidavit by way of evidence and closed his side.   On behalf of the Opposite Party, the affidavit of one Sri.Kiran Kumar R has been filed.  Heard the arguments of both parties.

5.      The points that arise for consideration are:-

1. Whether this Forum has got Jurisdiction to entertain this  complaint ?
2. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
3. If so, to what relief the Complainant is entitled ?

6.     Our findings on the above points are:-

                POINT (1)         :-  Accordingly

                   POINT (2)          :- Will not survive

                                              for consideration

POINT (3)         :-  As per the final Order

REASONS

7. POINT NO.1:- The learned Counsel for the Complainant argued that this Forum is having Jurisdiction to entertain the complaint.  Since the cause of action for this complaint arose within the Territorial Jurisdiction of this Forum and Opposite Party agreed to construct apartment in its Project “Smondo.4.0”, the Complainant believing the said promises and representations of Opposite Party, booked one 3 BHK Apartment/Unit.No.C0502, measuring 1179 Sq.ft, contained in the 5ht Floor, C Wing in the Project Patel Realty “Smondo.4.0” and paid an amount of Rs.2,97,000/- under cheque.No.827482 dt.02.09.2013 drawn ICICI Bank & paid Rs.3,000/- towards TDS under Form No.26 QB to Income Tax as provided under law vide E Tax, bearing acknowledgment No.AA1151032 through its nominated agent Realty private Limited.  As per the Booking Form, the Opposite Party agreed to construct the “Smondo.4.0” at the cost of Rs.57,31,022/-.  The Opposite Party has already received Rs.3,00,000/- but they failed to complete the construction and also failed to receive the balance amount and direct the Opposite Party to pay an amount of Rs.6,00,000/- towards reimbursement of the booking amount of Rs.3,00,000/- paid by Complainant along with interest at 24% p.a. and further be directed to pay the penalty of Rs.3,00,000/- by way of damages totally amounting to Rs.6,000,000/- with interest till realization of the amounts, thereby this Forum have got Jurisdiction to entertain the complaint.
8. On the other hand, the learned Counsel for the Opposite Party argued that this Forum has no Jurisdiction to entertain the complaint. Even according to the Complainant, as per Booking Form the Complainant had booked a residential apartment in “Smondo 4 Neo Town” by paying the booking amount of Rs.3,00,000/- with Opposite Party for construction of Apartment cost of Rs.57,31,022/- and also alleging that he has paid Rs.3,00,000/- so the total value for the service availed by the Complainant is of Rs.57,31,022/-, thereby it exceeds the Pecuniary Jurisdiction of this Hon’ble Forum.  Hence, this Forum has no Jurisdiction to entertain this complaint.  On this ground itself, the complaint ought to be dismissed. 
9. With this argument and on perusal of record, it is undisputed fact that the complainant has booked one 3 BHK Apartment/Unit No.C0502, measuring 1179 Sq.ft. contained in the 5ht Floor, C Wing in the Project Patel Realty “Smondo.4.0” and paid an amount of Rs.2,97,000/- under Cheque.No.827482 dt.02.09.2013 drawn ICIC Bank & paid Rs.3,000/- towards TDS under Form 26 QB to Income Tax as provided under law vide E Tax, bearing Acknowledgment.  No.AA1151032 through its nominated agent Realty Private Limited.  The Complainant Booking Form dt.02.09.2013 that the Opposite Party for construction of Smondo.4 in Unit No.C0502(North Facing), for total cost of Rs.57,31,022/-.  Thereby as rightly argued by the learned Counsel for the Opposite Party.  The value of the service availed by the Complainant is of Rs.57,31,022/- which exceeding Pecuniary Jurisdiction of this Hon’ble Forum i.e., more than 20,00,000/-.  As law laid down in Gurmukh Singh V/s Development Authority and another 2018(2)CPR 111 “the total value of the goods or services provided, is to be taken into consideration for determining the Pecuniary Jurisdiction of a Consumer Fora and not the partial amount deposited  by an allottee. So also in the present case the total service availed by the complainant from the Opposite Party is of Rs.57,31,022/- i.e., exceeding the Pecuniary Jurisdiction of this Hon’ble Forum, thereby this Forum have no Pecuniary Jurisdiction to entertain the complaint.  Hence, we answer point No.1 in Accordingly.
10.  POINT NO.2 & 3:- In view of our findings on point No.1 that this Forum has no Pecuniary Jurisdiction to entertain the complaint.  Hence point No.2 & 3 will not survive for consideration.  In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

Since lack of Pecuniary Jurisdiction to entertain the complaint.  It is ordered to return the complaint to the Complainant to present the same before proper and Jurisdictional Forum.

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, 23^rd day of June 2018).

MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Pankaj Agarwal, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1.  Copy of the Company Master Data as per MCA.
2. Copy of the Employment Certificate issued by S.V.Ghatalia and Associates LLP.
3. Copy of the advertisements pertaining to the Project “Smondo.4.0” launched by PRIL.
4. Copy of the Booking Form.
5. Copy of the Bank Statement issued by ICICI Bank towards cheque No.82/482 dt.02.09.2013.
6. Copy of the Form 26 QB paid towards Income Tax.
7. Copy of the Receipt dt.10.09.2013 issued by PRIL.
8. Copy of the Reply issued vide Email dt.26.06.2014 by the Complainant.
9. Copy of the Reply dt.27.04.2015 issued by PRIL.
10. Copy of the Reply dt.09.07.2015 issued by PRIL.
11. Copy of the Email dt.11.07.2015 issued by the Complainant.
12. Copy of the Reply dt.11.07.2015 issued by PRIL.
13. Copy of the Email dt.18.11.2015, 22.11.2015, 18.12.2015, 12.02.2016, 07.03.2016, 23.03.2016, 29.03.2016, 30.03.2016, 31.03.2016 and 01.04.2016 intimating termination of the Booking Order and demanding reimbursement of the booking amount.
14. Copy of the Legal Notice dt.25.04.2016 together with the Postal Window Receipt and the Postal Tracker Endorsement dt.30.04.2016 and 03.05.2016. 

Witness examined on behalf of the Opposite Parties:

1. Sri.Kiran Kumar R, Authorized Representative of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Copy of the Booking Form dt.02.09.2013.
2. Copy of the cheque dt.30.09.2016

MEMBER                                                     PRESIDENT