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

DATED 05^TH DAY OF SEPTEMBER 2022

ORDER

SRI.H.JANARDHAN, MEMBER

1. This joint  complaint has been filed by the complainants in persons seeking relief against the OP for a direction to refund Rs.6,00,000/- along with interest at 18% P.A. and Rs.8,20,000/- for misleading and financial loss of Rs.3,40,000/- for mental harassment and Rs.42,000/- towards cost of litigation expenses and such other reliefs.

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

The complainants during the June 2018 have approached the OP to purchase the flat at Sobha Arena Plaza to purchase flatat Pride Enchata in Mysore road, Bengaluru with legal clearednon litigated property. On 31.08.2018 the complainants booked the flat bearing unit no.H1-6083 Sobha Arena Plaza, located in Talaghattapura village, Uttarahalli hobli, Bengaluruby making payment of Rs.6,00,000/- and after whichthe complainants have receivedlegal documents of the flat after making token advance and also OP assured the complainants that 100% of the advance amount will be refunded within 45 days of cancellation in case of any legal issues of the property. After perusal of the legal documents thecomplainants were not interested to proceed towards flat no.H1-6083Sobha Arena Plaza project. On 19.12.2018 the complainants have decided to cancel the booking of the property by sending email to the OP and after legal opinion which was received by the complainants for being not satisfied with the legal opinion of the said property and again on 16.06.2020 the complainants have also sent legal noticeto the OP for refund of the booking amount. But best known to the OP have not come forward to refund the advance amount and it made the complainants to run from pillar to post. Hence, the complainants alleged deficiency of service on the part of the OP and complainants filed thiscomplaint.

3. After service of notice, OP has appeared though  their counsel and filed version. In the version they have contended that the complaint is not maintainable and the complainants have submitted joint request for cancellation along with NOC and cancelled cheque, for which the complainants have not process the same as per terms and conditions of the booking  form within a time of 45 days. The OP contended that there is no cause of action in favour of the complainants. Though  the OP has ready to refund amount of Rs.6,00,000/- without prejudice, but the complainants have not opted for the same. The OP always ready to refund Rs.6,00,000/- kept cheque dt.01.04.2021 bearing no.145294 drawn on Axis Bank, M.G.Road  branch, in favour of the complainant no.1 in conditional full and final settlement the matter with intent to amicable clause for mutual benefit of both the parties. The OP in order to have goodwill gesture and maintain good relationship with the customers, the OP has made an attempt to amicably settle the dispute within themselves. Further more, the OP denied all the allegations made in the complaint, but admits that the complainants have booked the apartment with the OP, but due to the reasons best known to the complainants have cancelled the said flat, the complainants have gone through the records pertaining title and also information available in public domain website before executing the booking form dt.31.08.2018 and made payment of advance deposit. The complainants   thereafter have duty bound to execute agreement of sale with the OP as per booking form within 30 days from the date of  draft agreement of sale sent to them. But after sending certain documents by the OP, OP waited for more than 03 months  after booking dt.31.08.2018.  The complainant sent email dt.19.12.2018 attaching legal  opinion and stated that they are going to cancel the flat and  after cancellation of the booking the complainant is entitled for deduction as per terms and conditions agreed by them and also informed that all the information pertaining to litigation of that property were already available  in public domain in the year 2017 itself and the complainants  are very well aware of the pending litigation as disclosed in form-B filed before the  RERA.  Grant of the relief of the booking amount cannot be made on the ground of pending litigation cannot be made. The complainants were informed that they should intend to cancel the booking  then they have to give cancelled cheque and NOC from both complainants in order to process the request. But till today the complainants have failed to give the same to the OP.  All other allegations made in the complaint are denied and prays this commission to dismiss the complaint with exemplary costs.  

4. The complainant-1 has filed his affidavit evidence and complainant no.2 has examined  and got marked exhibits P1 to P5 on behalf of complainant no.1. Affidavit evidence of OP is filed through its authorized signatory and has got marked exhibit R1 to R12.

5.      Heard arguments of both parties and complainants have filed their written arguments. Perused documents.

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

1. Whether there is deficiency in service on the part of the OPs?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

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

       Point No.1:- Affirmative in part.

      Point No.2:- Affirmative in part.

      Point No.3:-As per the final order.

REASONS

8.  Point No.1 & 2: On perusal of the pleadings and version of both parties, it is admitted that the complainants have booked  the apartment with the OP for unit no.H1-6083 in Sobha Arena Plaza and after which the complainants have made an advance amount of Rs.6,00,000/-. After which the complainants have obtained execution of booking form dt.31.08.2018. After which, the OP had served the terms and conditions of the booking form to the complainants. After perusal of the terms and conditions of the OP, the complainants have booked the said flat and after going through the legal complications when the documents provided by the OP, the complainants came to know that there are some legal complications in the said property and also OS/240/2012 was pending for adjudication  and hence the complainants being dis-satisfied with the legal documents of the OP, the complainants have decided to cancel the booking  and have given intimation letter to the OP on 19.12.2018 for refund of the booking amount and bunch of email correspondence  made by the complainants stating that on the  opinion the complainants have obtained regarding marketable  title on the above said property, which they  are not satisfied, which is marked as exhibit P5. Though the complainants have made several requests  to the OP, but the OP has not strictly adhere to the correspondences of the complainants. However, the OP was ready to refund the advance amount which the complainants have given at the time of booking. But to show the same, the OP has also produced copy of the cheque dt.01.04.2021 which is marked as P12. But OP was ever ready to refund the amount to the  complainants. The complainants best known to them  have not collected the said cheque which was issued by OP towards refund. But, the OP though the cheque was ready, when the complainants  not intended to take refund or else OP could  have remitted the said amount before this Commission,  to show that the OP were ever ready to refund the amount. In the instant case, the OPs have not deposited the said amount before this commission. When the OP has appeared before this commission to show their genuineness. They were ready for the refund of the  amount, by not doing so. The OP has made the complainants to run from pillar to post and also OP has kept hard earned money of the complainant without showing any cause, which is nothing but deficiency of service on the part of the OP and also unfair trade practice for non refund of said amount. Hence, we answer Point no.1 & 2 in the affirmative.

9.  Point no.3:- The complainants have not engaged any advocate to conduct the case before this commission. Hence, we deems it to award an amount of Rs.5,000/- towards  cost of litigation. Further, it is proper to fix time limit to comply the above said order. Hence, we fix 60 days for compliance of above said order. For the for going reasons,  Accordingly, 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.6,00,000/-  along with interest at the rate of 9% p.a. from date of respective payments till realization to the complainant and to pay Rs.5,000/- towards cost of litigation.
3. The OP shall comply this order within 60 days from the date of this order, failing which the OP shall pay interest @ 12% p.a. on Rs.6,00,000/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties and return extract pleading and documents to 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:

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