BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 23^rd DAY OF DECEMBER 2020

O R D E R

SRI.S.L.PATIL, PRESIDENT

The complainants filed this complaint under Section 12 of Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to refund the amount paid to them by complainants Rs.12,00,000/- together with interest at 18% p.a. from the date of receipt till repayment, to pay damages/compensation for the mental agony, inconvenience Rs.4,00,000/- in the interest of justice and equity and Rs.50,000/- towards cost of this litigation.

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

  The complainants submits that OP Nos.1 and 2 are representatives of Guruva properties – a land developer company and they advertised the web-portals about their project “Krishna Enclave”.  The complainants accepted the offer of buying site in the said project.  OP No.3 has allowed OP Nos.1, 2 and 4 to hold out and represent as people authorised to represent him and sell/market the sites formed in his land and thus OP Nos.1 to 4 have joined together in transaction to induce the complainants to purchase the said land.  It is further submitted by complainants that OP Nos.1,2 and 4 showing themselves as the agreement holders of land bearing Sy.No.24/6 measuring 35 Guntas situated at Varthur Hobli, Bengaluru East Taluk, belong to OP No.3 who after getting release deed from his mother and other members of his family offering the land to OP Nos.1,3 and 4 for sites of varied dimensions promising the public with all amenities listed in a brochure and offered to sell two such sites to the complainants.

It is submitted by the complainants that believing the OPs, getting induced by their promises opted for buying two sites bearing site Nos.21 and 22 each measuring East to West 40 ft. and North to South 60 ft. in all total 2400 sq.ft. formed from all piece and parcel of converted land bearing Sy.No.24/6 measuring 35 Guntas situated at Varthur Hobli, Bengaluru East Taluk, Bengaluru and an agreement of sale was made on 06.01.2018 in respect of the said sites.  The copy of the agreement of sale between the complainants and OPs are produced.  As per agreement of sale dated 06.01.2018, the total sale consideration for the said sites were fixed at Rs.84,00,000/-, out of which the complainants paid the advance sale consideration of Rs.12,00,000/- by way of cash and cheques and the OPs have acknowledged the same and complainants agreed to pay the remaining sale consideration of Rs.72,00,000/- as per the terms of the said agreement.  The copy of the payment receipt is produced. 

It is further submitted by the complainants that when they carried out the measurement of the said sites in OPs presence, they were shocked to see that dimensions of the said sites are much lesser than what was promised and described in agreement of sale and complainants learnt that the said layout has not been approved by authorities as per requirement of law.    It is further submitted by the complainants that even after repeated demands, OPs are not ready to repay the said amount. The complainants made several communications to the OPs and sent a legal notice dated 04.09.2018 and the same was received by the OPs.  It is submitted that OP Nos.1 and 2 committed fraud with their clients by making false promises and OP No.3 colluding with them by allowing his land to form an illegal layout without approval and offering inspection by buyers.  This act on the part of the OPs thus amounts to not only deficiency in service but also unfair trade practice.

The cause of action arose on 06.01.2018 when the agreement of sale was executed and further in October 2018 when the complainants came to know from sites measurements that the extent are lesser than that in the agreement, again on OPs refusing the legal notices and continues even to this day.

3. After admitting the complaint, notices were ordered to issue to the OPs.  OP Nos.1 to 4 did appeared through their counsels but not filed the versios.

4. Complainants have tendered their evidence by way of affidavit.  He has also produced documents in support of their case and marked Ex.A.1 to A.12.  The complainants has filed their written arguments.

5. Heard the learned counsel for the complainant.
6. The points that arise for our consideration are:

1.  Whether the Complainant prove the deficiency of service on the part of OPs, if so, entitled for the relief sought for?
2. What order?

  7.  Our answers to the above points are as under:

       Point No.1:  Partly in the affirmative.

      Point No.2:  As per the final order for the following

REASONS

7. Point No.1:  In this case, we have stated above OPs have appeared but not filed version. Under such circumstances, non-filing of version can be drawn an adverse inference that, the OPs have admitted the claim of the Complainant in the light of the decision reported in 2018 (1) CPR 314 (NC) in the case of M/s Singla Builders & Promoters Ltd., vs. Aman Kumar Garg, wherein it is held that,

“Non-filing of written version to complaint before the forum, amounts to admission of the allegations levelled against them in consumer complaint”.

8. According to the case of the complainants so far he has already paid an amount of Rs.12,00,000/-, OPs are not in a position to get registered the regular sale deed.  Even on repeated requests the OPs have not responding properly. According to the case of the complainant that itself amounts to deficiency of service much less the unfair trade practice.  In this context, we place the reliance on the decision reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund of earnest money.  Since the project was not materialized, under such circumstances, the OPs are bound to return the said amount to the complainant since there is deficiency of service much less the unfair trade practice on the part of OPs. 

9. It is submitted by the complainants that believing the OPs, getting induced by their promises opted for buying two sites bearing site Nos.21 and 22 each measuring East to West 40 ft. and North to South 60 ft. in all total 2400 sq.ft. formed from all piece and parcel of converted land bearing Sy.No.24/6 measuring 35 Guntas situated at Varthur Hobli, Bengaluru East Taluk, Bengaluru and an agreement of sale was made on 06.01.2018 in respect of the said sites.  The copy of the agreement of sale between the complainants and OPs are produced.  As per agreement of sale dated 06.01.2018, the total sale consideration for the said sites were fixed at Rs.84,00,000/-, out of which the complainants paid the advance sale consideration of Rs.12,00,000/- by way of cash and cheques and the OPs have acknowledged the same and complainants agreed to pay the remaining sale consideration of Rs.72,00,000/- as per the terms of the said agreement.  In this context, complainant has demanded to refund the advance amount paid by him with interest. Hence, we do not find any legal impediment to allow this complaint as there was delay on the part of the OPs in commencing the project and execute the sale deed though substantial amount has been paid by the complainants, in this context we place reliance on the decision, reported in 2019 (1) CPR 650 (NC) in the case of Pradeep Kumar Gupta and Ors. vs. Ireo Grace Realtech Pvt. Ltd., wherein it is held that:

Consumer Protection Act, 1986 – Sec.14(1)(c) & (d) and 21–Real estate – Booking of residential flats by Complainants – Case of complainants is that not only possession of apartments was not offered to them, even construction is not complete despite they having made substantial payment to OP – If a builder fails to deliver possession of flat/plot booked with him, within time period committed for this purpose and is unable to justify the said delay, this would constitute defect or deficiency in service rendered by him to buyer and in such a case, this Commission, in exercise of powers conferred upon it by Section 14(1) (c) & (d) of Consumer Protection Act would be competent to direct refund of amount paid by buyer to builder, along with appropriate compensation for loss or injury suffered by buyer due to defect/deficiency in services rendered to him by builder-In all consumer complaints, opposite party shall refund entire principal amount received from complainants along with compensation in form of 10% simple interest- OP shall also pay sum of Rs.25,000/- as cost of litigation in each complaint.

10. In the light of the decision, we come to conclusion that the very conduct of the OPs certainly amounts to grave deficiency of service.  This act of OPs must have put the complainants to great hardship, inconvenience and mental agony.  Hence, we are of the considered view that OPs have to be directed to refund the admitted advance amount of Rs.12,00,000/- to the complainants together with interest @ 10% p.a. by way of compensation for having caused mental agony, hardship and deficiency of services with litigation cost of Rs.5,000/- to both complainants. Accordingly, Point No.1 is answered Partly in Affirmative.

11. Point No.2:  In the result, we pass the following    

O R D E R

1. The complaint filed by the complainants U/s.12 of the Consumer Protection Act, 1986 are allowed in part. 
2. The OP Nos.1 to 4 are jointly and severally directed to refund a sum of Rs.12,00,000/- (Rupees twelve lakhs Only) with interest @ 10% p.a. in the form of compensation to the complainants from the date of periodical payment till its realization, together with litigation cost of Rs.5,000/- to the Complainants.
3. We also direct the OPs to realize the above said amounts to the Complainants within four weeks from the date of receipt of this order, failing which the Complainants is at liberty to have the redress as per law.
4. Furnish free copy of this order to both the parties