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

DATED 05^TH DAY OF SEPTEMBER 2022

ORDER

KUM. RENUKADEVI DESHPANDE, MEMBER

1. This complaint has been filed under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1. To hold the OP responsible for deficiency of service and unfair trade practice and to allow the complaint in full.
2. To direct the OP to refund the booking amount of R.20,37,483/-.
3. To direct the OP to pay 24% interest for the deposited amount of Rs.20,37,483/- from the date of deposit to till the date of realization.
4. Direct the OP to pay an amount of Rs.50,000/- towards harassment and mental agony and hardship.
5. Direct the OP to reimburse costs of this proceeding and pay an amount of Rs.50,000/-
6. Pass such other reliefs.

2. The brief facts of the complaint is as follows:

The complainant has paid an advance amount in two dates of Rs.17,37,483/- through cheque No.25.01.2021 drawn from HDFC Bank and a sum of Rs.3,00,000/- vide with Transfer No.EDC/00042-00162-/M037044003001257INV194 dated 25.01.2021.  Hence a total amount of Rs.20,37,483/-.  OP has also issued receipt.  Complainant requested for a proper sale agreement and agreement to build.  OP keep posting the date of sharing the agreement on various grounds.  The OP has not executed the agreement to sell.  Despite the complainant making a necessary payment as per requirement of the OP.

3.     Further due to some urgent necessity arising out of the unavoidable situation connected with family of the complainant the complainant had cancelled the said booking in process and also the complainant found that the booking was not confirmed by the execution of agreement to sell as per the directions of the intimation letter of the OP.  Complainant wrote clear emails to OP for cancellation and refund of the amount.  However the OP stated that the refund should not happen until the said flat get booked by another new buyer.  The complainant got issued a notice on the same ground for recall and refund of the payment.  But OP failed to respond to the same.  It amounts to deficiency of service and unfair trade practice on the part of the OP.  Hence this complaint.

4.     In response to the notice, the advocate appeared for OP and filed version.  The complaint filed by the complainant is false, frivolous and vexatious and filed only with an intention to extract huge sum from the OP.  The allegations made in the complaint are denied as false and the complaint is put to strict proof of the same.  The relief sought for under the complaint is contrary to the terms agreed between the parties.  The prayer for refund of the entire amount cannot be granted since the same will result in violation of the terms of RERA.  U/ 18 returning of amount and compensation if the promoter fails to complete or is unable to give possession of the apartment plot or building.  The unit application terms clearly provided an outer limit of 30 days for execution of the agreement.  However the cancellation was aggrieved by the complainant in five day of the execution of the unit application form.  Therefore it clear that there allegations are merely an afterthought added for first time in the complaint with an intension to overcome the lacuna in the legal notice.  In view of the above, this complaint is not maintainable and ought to be dismissed by imposing exemplary punitive cost to the complainant.

5.     The complainant to substantiate the case filed affidavit evidence and produced documents and marked Ex.P1 to P8 and OP filed its affidavit evidence and produced documents, which are marked as R1 to R7.  Complainant and OP relies on certificate u/s 65(B) of Evidence Act 1872 and filed their written arguments with citation.  Heard the arguments of both sides.  

6.     The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP, if so, entitled for the relief sought for?
2.  What  relief or order?

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

       Point No.1:- Partly in the affirmative

      Point No.2:-As per the final order.

REASONS

8.    Point No.1:   Both the parties have reiterated their respective contention in their affidavit evidence and relies on documents.

9.    At the first instance we would like to refer some of the admitted and proved facts.  The complainant has paid booking amount of Rs.20,37,483/- paid by the complainant. Ex.A2 complainant requested for a proper sale agreement and agreement to build, but OP did not share format of agreement for review and sign.  But OP posting the date of sharing of the agreement on various grounds.  The OP has not executed the agreement to sell.  Despite the complainant making a necessary payment as per the requirement of the OP. (10+of basic sale value +GST) but in the same time some urgent necessity arising of an unavoidable situation connected with the family of the complainant had to cancel the said booking in process also the complainant found that the booking was not confirmed by execution of agreement to sell as per the directions of the intimation letter of the OP.  The complainant also got a notice issued on the same ground dated 17.02.2021.  OP reply notice dated 12.03.2021.  In view of the above the question of completing the cancellation procedure in 10 days from the date of receiving of your notice under reply does not arise.  Despite the explanation/clarification as above, if complainant choose to approach the competent forum/court, against Sobha Ltd., the same shall be defended at the sole risk.  Ex.R5 but OP is ready to refund as amount Rs.19,87,483/- by way of cheque dated 14.04.2021 bearing No.145487 drawn on Axis Bank, M.G.road, Bangalore, in favour of complainant Mr.Siddhanth Sharma the unconditional full and final settlement without interest it amounts to deficiency of service as part of OP u/s 2(1)(g) of C.P. Act 1986 deficiency means any fault, imperfection, shortcoming inadequacy in the quality, nature manner performance which is required to be maintained by or under any law for time being in force has been undertaken to performed by a person in pursuant contract or otherwise in relative to any service.  OP did not cancelled the sale agreement nor refund the amount till date, it amounts to deficiency of service on the part of OP.  Hence we came to conclusion that the complaint filed by the complainant is deserves to be allowed holding that there is deficiency of service on the part of OP in not refunding the said amount though he applied for cancellation of the agreement of sale.  Hence the complainant is entitled for refund of the paid amount of Rs.20,37,483/- with interest at 6% p.a., from the date of this complaint till the date of realization with cost of Rs.10,000/-.  Accordingly we answer point No.1 in the affirmative.

10.  Point No.2: In view of discussion made above finding given on Point No.1, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund an amount of Rs.20,37,483/- along with interest at 9% p.a., from the date of payment till realization to the complainant and to pay Rs.10,000/- towards cost of litigation.
3. The OPs shall comply this order within 60 days from the date of this order failing which the OPs shall pay interest @ 12% p.a., on Rs.20,37,483/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 05^TH day of September, 2022)

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

1. Ex.P1:      Intimation letter dated 25.01.2021
2. Ex.P2:      Copy of HDFC Bank statement from 24.01.2021 to 01.02.2021
3. Ex.P3:      Copy of credit card statement reflecting the transaction of Rs.3,00,000/-
4. Ex.P4:        Copy of receipt acknowledge No.CR2254329 on 28.01.2021
5. Ex.P5:      Copy of the receipt acknowledge No.CR2254545 on 28.01.2021
6. Ex.P6:      Copy of legal notice, with postal receipt and acknowldgement of delivery
7. Ex.R7:      Copy of DD with reference to payment of fee

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

1. Ex.R1:     Certificate u/s 65B of Evidence Act
2. Ex.R2:     Copy of board resolution
3. Ex.R3:     Copy of registration certificate issued by RERA
4. Ex.R4:     Copy of unit application
5. Ex.R5:     Copy of our reply notice dated 12.03.2021
6. Ex.R6:     Copy of consignment track
7. Ex.R7:     copy of intimation letter

HAV*