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

DATED 20^TH DAY OF JANUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to pay the complainants Rs.19,000/- being the balance refund amount.
2. Direct the OP to pay interest at 12% p.a., on Rs.19,000/-
3. Direct the OP to pay Rs.1,00,000/- towards damages and compensation for mental trauma etc.,
4. Such other reliefs as this Hon’ble Forum deems fit.

2. The case set up by the complainant in brief is as under:-

The complainants are husband and wife and they have filed this complaint jointly.  The complainants had agreed to purchase residential villa from the OP and the OP have informed them that it would develop Pebble Creek Project and construct a residential villa in site No.66 in the layout known as Pebble Creek.  In the residential converted land bearing Sy.No.123, 124, 128 and 144/2, totally measuring 20 acre 31 guntas situated at Mugaloor village, Anekal Taluk, Bangalore Urban District.

3. The complainants based on the representation of the OPs, paid an advance of Rs.50,000/- on 18.12.2021 and the OP have issued a booking receipt by acknowledging the receipt of the said amount of Rs.50,000/-.  The complainants have paid 10% the payment of Rs.3,53,000/- on 24.12.2021 towards construction and again paid Rs.4,66,000- on 04.07.2022 for the sake of construction of the residential villa.  The complainants have totally agreed to purchase the said villa for a total consideration amount of Rs.74,95,000/-.  They have paid totally Rs.8,69,000/- to the OP.
4. It is further grievance of the complainants that they came to know after entered into Sale Agreement that the land in Sy.No.128 of Mugloor village in which site No.66 was found was under dispute and the Hon’ble Karnataka High Court in WP No.12056/2008 prohibited the land owners from alienating the land bearing No.128 and further the Hon’ble Court declared that the property shall vest with the State Government and as such the vendors/land owners are no more the owners of the property.  Hence they don’t have any rights to alienate the property and by suppressing these facts the land owners and the OP entered into the contract with the complainants for sale and construct the building in the land with litigation.  After that the complainants having no other option have sent the mail to the OP stating that they are not interested to proceed with the registration and requested for full refund of the amount of Rs.8,69,000/- paid by them and further informed the OP that no cancellation fee can be charged from the complainants as the fault is on the side of the land owners and OP as they suppressed the fact of litigation entered into contract with the complainants. The OP have confirmed through mail about the cancellation.  When the complainants have tried to contact the OP for refund of amount they have been started giving evasive reply the complainant had to deal with immense mental trauma and frustration on account of OPs unreasonable delays, after great pressure from the complainant the OP transferred Rs.8,50,000/- on 09.11.2022 through NEFT and failed to pay the remaining amount of Rs19,000/-.  
5. The complainants have suffered mental trauma and anguish due to the OPs delay in refunding the amount and also the lackadaisical attitude of the OP. Thereby the OPs have committed deficiency of service.  When the OPs have failed to refund the balance amount of Rs.19,000/- the complainants after approached the OPs Manager and also the Directors have filed this complaint since the OPs manager and their directors have threatened the complainants and they have also shouted at them and refused to pay the amount. Hence the complaint.
6. In response to the notice, OP has not appeared before this Commission. Hence OP placed exparte.
7. The complainant has filed his affidavit evidence and relies on 07 documents. 
8. Heard the arguments of the complainant.  It is pertinent to note here that during the pendency of this complaint, the OP has refunded the balance amount of Rs.19,000/- by transferring the same to the complainant’s account on 20.12.2023. The complainants have also produced the copy of the statement extract with memo for having received the amount.
9. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

11. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, affidavit evidence of the complainant. Inspite of issue of notice, the OP remained absent. Hence OP neither challenged the allegations made in the complaint and also documents and they remained unchallenged.
12. Both the complainants have filed their affidavit evidence in support of their contentions. Reiterated all the allegations made in the complaint and also produced Ex.P1 to P7 documents.  
13. It is clear from the evidence affidavit and documents that the complainants have agreed to purchase villa from the OP in the layout known as Pebble Creek for a total consideration amount of Rs.74,95,000/-.  They have paid the advance amount of Rs.8,69,000/- towards advance sale consideration amount.
14. In support of their contention they have produced the booking receipt and estimate as Ex.P1, Copy of the payments statement, as Ex.P2, the complainants initiated cancellation after realizing that the property was disputed land and the Hon’ble High Court of Karnataka in WP No.12056/2008 prohibited the land owners from alienating the land bearing Sy.No.128 in which the site No.66 is formed and further declared that the property shall vest with the state government.  Hence the vendors/land owners are no more owners of the property. After that the complainants have sent mail for cancellation of the agreement and requested for refund of the amount. After that the OPs have refunded only Rs.8,50,000/- and they have not refunded the balance amount of Rs.19,000/-.  
15. The complainants have filed this complaint for recovery of the balance amount of Rs.19,000/- with interest and damages. During the pendency of this complaint the OPs have refunded Rs.19,000/- through IMPS to the account of the complainants as per Ex.P7.
16. It is clear from the above evidence and documents that the OPs have refunded the amount of Rs.19,000/- claimed by the complainants after filing of this complaint.  If the OPs have paid the amount earlier, the complainants would not have approached this commission by filing this complaint.  
17. The OPs have played fraud on the complainants. The OPs have tried to sell the disputed property to the complainants by collecting a huge amount of Rs.74,95,000/- even though the property was declared by the Hon’ble High Court of Karnataka as government property and it shall vest with the State Government.  The OPs are neither the owners nor having any right have tried to grab the amount from the innocent purchasers.  The complainants have invested the amount with a fond hope to get their dream villas and they are disappointed and they have also suffered mental agony and financial loss and immense mental trauma and frustration in view of the fraud played by the OPs and also causing unreasonable delay in refunding the amount. Under these circumstances the complainants have clearly established the deficiency of service, fraud and unfair trade practice on the part of the OPs. Even though the OPs have refunded the entire amount the complainants are entitled for the damages by way of compensation of Rs.25,000/- and also litigation expenses of Rs.10,000/-.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
18. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is hereby directed to pay compensation of Rs.25,000/- with litigation expenses of Rs.10,000/- to the complainants.
3. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 10% p.a. after expiry of 60 days on Rs.25,000/- till final payment.
4. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 20^TH day of JANUARY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL