Date of Filing:23/06/2015

     Date of Order:18/02/2016

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 18^TH DAY OF FEBRUARY 2016

PRESENT

SRI.SYED ANSER KHALEEM, B.SC., B.Ed.,LL.B.,PRESIDENT

SRI.H.JANARDHAN,B.A.L, LL.B., MEMBER

SMT.BHARATI.B.VIBHUTE, B.E(I.P.) LL.B., MEMBER

COMPLAINT NO.1188/2015

Sri Pavankumar Kulkarni,

Aged about 28 years,

Residing at #263,

Ground Floor, 3^rd Cross,

LRDE Layout, Karthiknagar,

Marathahalli,

Bangalore-560 037.

Mob: 9972591884.                          …. Complainant

V/s

Nishita’s Properties,

#698, 2^nd Floor,

100 feet Ring Road,

29^th Main, BTM Layout,

2^nd Stage, Bangalore-560 076.

Represented by its

Proprietor P.Ravindra Babu.           …. Opposite Party 

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     The complainant has filed this complaint U/S 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter referred in short as O.P) alleging deficiency in service on the part of the O.P and prays for direction to the O.P to refund the amount of Rs.3,50,000/- collected from the complainant towards the membership fee along with an interest @ 18% per annum till the realization of the amount. Further direct the O.P. to pay an amount of Rs.50,000/- being the loss sustained and mental harassment by the O.P. and also pay cost of the proceedings.

2.  The brief facts of the complaint is that, the complainant had booked an apartment bearing No.307, in the year 2014, at O.P.’s Honey Square Project, situated at J.P. Nagara, 5^th phase. At the time of booking the apartment O.P. has informed complainant that the title of the property is clear. Further as per the advice of the O.P., the complainant paid an initial amount of Rs.2,00,000/- vide cheque bearing No.000001 dated 17.3.2014 through HDFC Bank, Tamilnadu Branch and the O.P. has acknowledged the same amount and issued a receipt for the same and informed the complainant that he will start the project soon.  The complainant believing the words of the O.P. and paid an amount of Rs.3,00,000/- vide cheque bearing No.s (1) 000002 dated 18.03.2014 for an amount of Rs.1,00,000  and also paid Rs 2,00,000/- on 20.03.2014 vide cheque bearing No.000003 to be drawn on HDFC Bank, Coimbatore Tamilnadu Branch.  The said amounts were encashed by the O.P and issued receipt to the complainant.

3.     Further the complainant states that, on verification of the title deeds through his counse,l he came to know that there is flaw in the title and the O.P also not started the project and hence demanded to refund of the booking amount of Rs.5,00,000/- from the O.P..  The complainant states that, on his demand, the O.P issued two cheques for an amount of Rs.2,50,000/- each bearing cheque numbers No.199539 dated 25.10.2014  and cheque bearing No.199540 dated 1.11.2014  and these cheques drawn on Indian Bank, Jayanagar 4^th Block Branch. When the complainant presented the cheques for encashment, to his utter shock and surprise the said cheques were returned due to insufficient fund and name differs and the same was duly informed to O.P. and the O.P. had requested complainant not to take any legal action and he promised that will refund the amount immediately. Thereafter O.P. have refunded an amount of Rs.1,50,000/- only by cash. Thereafter O.P. did not taken any steps to make the remaining payment.   The complainant had waited almost six months with a hope that O.P. will refund the amount but the O.P. did not come forward to pay the remaining balance amount.   Further complainant approached the office of the O.P. but the staff of the O.P. did not heed complainant’s request and all the requests were fell into the deaf ears and they started to keep away from complainant. Further complainant tried to contact O.P. over phone and but O.P. not attending the phone calls of the complainant. The complainant submits that O.P. is collecting huge amount of money by giving false promises and misguiding the general public.  Further the complainant’s father has undergone liver transplantation surgery at BGS hospital, Bangalore which has to be done at the urgent basis and for a huge amount shall be incurred which is well within knowledge of O.P.  Due to the negligent attitude of the O.P committed deficiency of service and which cannot be compensated by way of monetary value.

4.     The complainant further sent a legal notice dated 19.5.2015 demanding O.P. to return the amount collected from him along with interest i.e. Rs.3,50,000/- and inspite of receiving the notice they did not issue any reply and even not bothered to return the amount collected from the complainant. Hence this complaint.   

5.      Upon issuance of notice, O.P remained absent and hence placed ex-parte.  

6.     To substantiate the cases, the complainant has filed his respective affidavit evidence along with documents.  The complainant also filed written arguments. 

7.     On the basis of pleadings of the complainant, the following points will arise for our considerations are:-

                                (A)    Whether the complainant has proved

                         deficiency in service on the part of the O.P?

(B)    Whether the complainant is entitled to the

        relief prayed for in the complaint?

(C)     What order?

8.     Our answers to the above points are:-

POINT (A) & (B):      In the affirmative.

POINT (C):       As per the final order.

for the following:

REASONS

POINT (A) & (B):-

9.     On perusing the complaint and the documentary evidence placed before us, it is evident that the complainant with a intention to purchase an apartment in question approached the O.P. On perusal of the receipts dated 17.03.2014,  dated 18.03.2014 and dated 20.03.2014 it is evident that the complainant in order to purchase the apartment paid total of Rs 5,00000/- and booked the apartment. The grievance of the complainant is that on verification of the title deeds the complainant found flaw in the title and also project was not commenced, so he sought for refund of the amount. On perusal of the cheques dated 25-10-2014 and dated 1-11-2014 for an amount of Rs 2,50,000/- each drawn on Indian Bank, Jaynagar, 4^th Block Branch Bangalore, it is evident that by yielding to the request of the complainant, O.P issued the said cheques in order to repay the amount. However on perusal of the endorsement issued by the drawee bank, it disclosed that due to in-sufficient fund and differs in the name, the bank dishonored the cheques in question. However the complainant himself states that after his multiple follow ups, the O.P paid only Rs 1,50,000/- by cash and not paid remaining balance amount. Hence the complainant rightly alleged the deficiency in service on the part of the O.P.  The issuing of the cheques without maintaining sufficient balance in the account of the O.P it also attracts the unfair trade practice apart from the deficiency in service on the part of the O.P. Furthermore inspite on service of notice, the O.P did not appear before the Forum to answer the claim of the complainant. Hence all the allegations made in the complaint remained unchallenged. In the attendance circumstances of the case and based on the available evidence on record, we reach to conclusion that the complainant proved deficiency in service on the part of the O.P.

10.   The non-refunding of the amount to the complainant well in time, the complainant obviously suffered, made him to wonder from pillar to post. Hence if the complainant invested his hard earned money in any nationalized bank, the money will earn appropriate interest. In these backdrop of facts, we deem it necessary to direct the O.P to refund the remaining balance of Rs.3,50,000/- along with interest at the rate of 12% per annum and cost of proceedings to the tune of Rs 2000/- and  it will meets the ends of justice. In the light of the above discussion, we accordingly answered Point No. (A) and (B) in the affirmative.

POINT (C):

11.   In the result, we proceed to pass the following:-

ORDER

1. The complaint is allowed-in-part with cost.

2. The O.P i.e. Nishita’s Properties represented by its Proprietor is hereby directed to refund an amount of Rs.3,50,000/- along with interest at the rate of 12% per annum from the date of payment till the date of realization to the complainant.

3. Further O.P. is directed to pay Rs.2,000/- towards cost of the proceedings.

4. The O.P. is hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this forum within 45 days from the date of this order.

5. Send a copy of this order to both parties free of cost.

 (Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 18^th Day of February 2016)

MEMBER                 MEMBER                PRESIDENT

*Rak