Karnataka

Bangalore 4th Additional

CC/15/1010

Sri. Avishedh Jha - Complainant(s)

Versus

Prisha Properties India Pvt Ltd - Opp.Party(s)

In person

04 Apr 2018

ORDER

Complaint filed on: 27.05.2015

                                                      Disposed on: 04.04.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1010/2015

DATED THIS THE 4^th APRIL OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Sri Avishesh Jha,

S/o Mod Narain Jha,

Aged about 35 years,

R/at F4 F2 SLV Classic Apartment, Opp. 5^th cross,

BHCS layout, Subramanyapura Post, Uttarahalli,

Bengaluru-61.

 

Inperson     

 

V/s

Opposite party/s

Respondent/s:-

 

Prisha Properties India Pvt. ltd., #820, Golden House,

2^nd floor, 80 ft road,

8^th block, Koramangala, Bengaluru-95.

 

By Adv.Sri.Shivaprabhu. S.Hiremath

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to refund Rs.6,44,000/- of booking amount along with interest at 9% p.a. Further direct it to pay cost and to grant such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, he had booked a plot no.149, phase-2, Golden valley near BSK 6^th phase, Bengaluru dtd.18.06.14 and paid the total amount of Rs.5 lakhs in favour of Op through 3 cheques but Op did not sent him the receipt for the same, finally he got the scanned receipt only on Sept 2014 after multiple escalations. At the time of booking he was informed by Op that he need to pay remaining 4,74,000/- in next one year as the project is yet to be approved by BDA. The project is still not approved by BDA.  After his escalation, Op started sending mail to release another amount of Rs.4,74,000/-, but Complainant denied to pay, as the property is still not approved and he asked for refund of his money. Op agreed to pay only after hundreds of meeting and gave the cheque for Rs.5 lakhs. He deposited the said cheque twice in ICICI bank and both the times the cheque got bounced. He called many times to Op to refund his money. But Op is not replying and ready to return his money. On top of this harassment, they are sending him communication to pay remaining amount of Rs.4,74,000/-. Hence prays to allow the complaint

 

3. On receipt of the notice, Op did appear and filed version denying the allegations made by the Complainant. The sum & substance of the contents of the version filed by Op are that, the Complainant has not paid the periodical payments in respect of booking of the site. In this context, Op informed him to pay the EMIs, but he did not comply the request of Op. It is also specific contention of the Op that, as per clause no.8 of the application, it is agreed that the Complainant shall not withdraw the booking once made. The Op in furtherance of booking suffered loss because of the cancellation of booking. As per clause no.9 of the application, cancellation charges of Rs.50,000/- shall apply if cancellation made prior to execution of agreement of sale. However, the Complainant on seeking a refund of the booking amount, the Op had issued a postdated cheque for Rs.5 lakhs without deducting the cancellation charges and with instructions to present the PDC only on being directed by the Op to do so. However the Complainant having chosen to present it whimsically as per his own fancy and on the cheque having bounced, thereafter filed this complaint not chosen to proceed under the NI Act, but on chosen to file this complaint before this forum on false and untenable grounds. It is also another contention of Op that, Complainant having not come forward to fulfill the terms & conditions and hence he is not a consumer under the Act. However, the Op, without prejudice to its rights under law is ready and willing to refund Rs.5 lakhs to put an end to the matter and hence the complaint which is bereft of merits, frivolous, be dismissed. Op also taken another contention that, complaint filed by the Complainant is not maintainable in view of the arbitration clause in booking application conditions. Hence, very complaint filed by the Complainant is no legs to stand. Hence prays to dismiss the complaint.

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A6. The Law Officer and Authorized Signatory of Op filed affidavit evidence and got marked the document as Ex-B1. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Op, if so, whether the Complainant entitled for the relief sought for ?  
2. What order ?

                   

           

 

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

 

Point no.1: In the Affirmative  

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

 

REASONS

 

          7. Point no.1:  The undisputed facts which reveals from the pleadings of the parties to the lis, goes to show that Complainant has booked a plot and paid an amount of Rs.5 lakhs. The only grievance of the Op is that, on repeated requests, Complainant did not pay another part of amount of Rs.4,74,000/- well within time. But the say of the Complainant quite different, stating that, at the time of booking, he was informed by sales executive Sri.Jai Anand that, he need to pay remaining Rs.4,74,000/- in next one year as the project is yet to be approved by BDA. The said project not yet approved by BDA. When such being the fact, Complainant has no other go except to sought for the refund of Rs.5 lakh paid by him for booking of the plot, as the said project not yet commenced, under such circumstances, Complainant has an option to get refund of the money which he was already paid. As we already stated above, the payment of Rs.5 lakhs made by the Complainant is not disputed by the Ops. Anyhow, Op has given undertaking that, he is ready to pay Rs.5 lakhs. In this context, he had issued a cheque. We noticed that, the said cheque was dishonoured. When such being the fact, we find there is deficiency of service on the part of Op, in not returning the amount paid by the Complainant. Looking to the contents of the complaint, Complainant has sought for an amount of Rs.6,44,000/- which appears to including the interest. As the Op has already given undertaking for refund of Rs.5 lakhs, in this context, we are of the opinion that, the said amount is to be paid with interest at 6% p.a. We made it clear that, the said interest is awarding by way of compensation. Accordingly, Complainant is entitled for an amount of Rs.5 lakhs with interest at 6% p.a. from the date of issuance of cheques for an amount of Rs.5 lakhs till its realization. With regard to the litigation cost is concerned, we fix it to Rs.1,000/-. Accordingly we answered the point no.1 in the affirmative.

 

8. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby allowed.

 

2. Op is directed to pay Rs.5,00,000/- (Rs. Five lakhs) to the Complainant with interest @ 6% p.a. from the date of issuance of cheques till its realization, within six weeks from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.

 

3. Op is also directed to pay Rs.1,000/- being the cost of litigation to the Complainant.

 

          Supply free copy of this order to both the parties.

 

         

(Dictated to the Stenographer in the open forum and pronounced on 4^th April 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Avishesh Jha, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Application form for booking plot
Ex-A2	Cheque issued by Op
Ex-A3	ICICI bank slip deposited 1st time
Ex-A4	ICICI bank slip deposited 2nd time
Ex-A5	Letter – low balance in Op a/c
Ex-A6	Gmail communication to refund Rs.5 lakh

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.M.K.Shivaprasad, who being the Law Officer and Authorized Signatory of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1

Authorization letter

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT