BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

28^th DAY OF SEPTEMBER 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 Party (herein after referred as OP) with a prayer to direct the OP to refund the amount of Rs.3,72,640/-  together with quarterly compounding interest @ 18% p.a from the date of complaint till the realization and pay Rs.2,00,000/- as damages for unnecessary mental agony caused to complainant and also direct to award cost of the proceedings.

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

That the complainant had booked a villa (plot No.82, plan 1) in the OP Dream Project “LAKE MIST” which is under construction on the property bearing No.56/3, situated at Ramagondanahalli Village, Yelahanka Hobli, Bengaluru and hereinafter referred to as the ‘schedule property’ undertaken by the OP.  Complainant has deposited a sum of Rs.3,00,000/- by way of cheque dated 15.03.2015 bearing No.014455 drawn on Bank of India, Vishrambag Branch, Sangli which the OP has realized vide receipt No.075, dated 15.03.2015.  That due to technical flaw with regard to the eligibility in availing loan amount from Bank of India for purchase of the Villa in the above said project, from the employer Bank (BOI) the complainant was not able to enter into an agreement of sale for the said villa and had informed the OP of the said fact and requested them to treat the communication dated 14.04.2015 as cancellation of the request for allotment of the schedule property and had further requested the OP to refund the said amount of Rs.3,00,000/-.  The said amount was realized on 17.03.2015 and inspite of repeated requests through phone calls and e-mails and demands made by the complainant to the representatives of the OP viz.. Mr.Soumik Das and Mr.Tharik Ali, failed and neglected to repay the said amount paid by the complainant.  The said representatives were giving false promise of refunding the amount by giving them a limit of about a week every time when the call was made by the complainant.

Since, the booking of the villa was cancelled by the complainant and inspite of the complainant informing the OP and had requested the OP to refund the advance amount, the OP has failed and neglected to refund the amount which amounts to gross deficiency of service and the complainant has no other alternative.  Hence the complainant had issued a legal notice to the OP on 21.12.2015 and 03.02.2016.  That inspite of the receipt of the legal notices, there is no reply from the OP.  Inspite of the cancellation of the booking, the OP has failed and neglected to refund the advance amount.  This act of OP amounts to gross deficiency of service.  Hence, the complainant has approached this Forum for the reliefs.

3. After registration of the complaint, notice was issued to OP.  Inspite of service of notice, OP remained absent without sufficient reason and cause.  Hence, OP is placed ex-parte and the case was posted for filing affidavit of the complainant.

4. In support of complaint averments, the complainant in this case filed his affidavit by way of evidence reiterating the complaint averments along with documents.

5. The sworn testimony of the complainant has remained unchallenged.  OP neither filed version nor denied the sworn testimony of the complainant.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainant.

6. We have perused the documents produced by the complainant.  Document No.1 is the copy of the receipt No.075 dated 15.03.2015 is produced as annexure-A.  Document No.2 and 3 are the copies of legal notices dated 21.12.2015 and 03.02.2016 is produced as annexure-B & B-1.  Document No.4, 5, 6 are the postal receipt & postal acknowledgments are herewith produced as annexure-C, D, D-1.

7. On perusal of oral and documentary evidence produced by the complainant, it is crystal clear that OP has received Rs.3,00,000/- paid by the complainant towards the booking of the Villa.  Due to technical flaw with regard to the eligibility in availing loan amount from the Bank of India for purchase of the villa in the above said project, the complainant was not able to enter into an agreement of sale for the said villa and had informed the OP of the said fact and requested them to cancel the allotment of the schedule property.  Further complainant requested the OP to refund the said amount of Rs.3,00,000/- and inspite of repeated requests through phone calls and e-mails, OP neglected to repay the said amount paid by the complainant.  The representatives of OP gave false promises of refunding the amount when the call was made by the complainant.  Hence, the complainant felt deficiency of service on the part of the OP.

8. From the available material on record, it is crystal clear that the complainant paid Rs.3,00,000/- as booking amount.  OP has failed to repay the advance amount.  Inspite of repeated requests through phone calls and e-mail correspondences, OP has not refunded the amount without any reason.  There is no justification to withhold the said deposit amount of Rs.3,00,000/- even after cancellation of the allotment of schedule property.

9. The conduct of OP must have put the complainant to great hardship, inconvenience and mental agony.  Therefore, the OP is liable to pay damages to the complainant apart from refunding the amount together with interest.  The very fact of OP not contesting the proceedings leads us to draw an inference that OP is admitting the claim of the complainant.  There is no reason to disbelieve the unchallenged affidavit of the complainant and the documents produced.  The complainant suffered inconvenience and mental agony due to non performance of the promise made by the OP.  In view of the discussions made above, we are of the considered opinion that the complainant has successfully proved the deficiency of service on the part of the OP.  Therefore OP is directed to refund a sum of Rs.3,00,000/- together with interest at the rate of 18% p.a from the date of complaint till the date of realization.  Also directed to pay damages of Rs.15,000/- towards compensation along with litigation cost of Rs.3,000/-.

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.  OP is directed to refund the advance amount of Rs.3,00,000/- (Three lakhs only) along with interest @ 18% p.a from the date of payment till the date of realization.  OP is also directed to pay compensation of Rs.15,000/- towards damages along with litigation cost of Rs.3,000/-.

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 28^th day of September 2016)

MEMBER                                                               PRESIDENT

Vln* 

COMPLAINT No.648/2016

Witnesses examined on behalf of the complainant dated 03.08.2016.

1. Sri.Mukund Gosavi

   Witnesses examined on behalf of OP – Nil.

   Documents produced by the OP - Nil

MEMBER                                                                PRESIDENT

Vln*