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

DATED 17^th DAY OF FEBRUARY 2024

ORDER

SMT. K. ANITA SHIVAKUMAR, MEMBER

Complainant filed this complaint U/S 35 of Consumer Protection Act 2019, seeking direction to OP to refund a sum of Rs.1,00,000/-, to pay additional sum of Rs.40,000/- towards compensation altogether with an interest at the rate of 18% p.a. from the date of complainant paid for booking advance amount till realization.

2. Brief facts of this case are as follows:-

Being a retired bank officer, complainant had booked a flat in a property name “GM orchid Enclave” in Electronic city phase-1 developed by OPs. Complainant paid Rs.1,00,000/- on 25.08.2019 towards booking advance amount to OPs. OPs had represented that the title of the property on which the aforesaid project is being developed, has clear and marketable title free from all encumbrances, litigations and legal infirmity, the utter dismay of the complainant, the draft of sale agreement, subsequently supplied by the OPs disclosed a minor interest in the property on which the afore said project is being developed and no court permission was obtained to transact with the share of the minor as contemplated under section 8 (2), Hindu Minority and Guard ship Act 1956.

3. Complainant further stated that he communicated the same to OPs on 13.02.2021, since there is a minor interest involved and complainant had overlooked the same. The OPs did not give any justifiable answer. As such complainant intimated them, that he is no more interested in proceeding with the purchase of the flat and sought for refund of booking amount. The same communications from the complainant was forwarded by CRM of OPs to their employees but no step has been taken by OPs regarding the refund of advance amount. Due to the non refund of the advance amount he forced to issue notice to OPs. The OPs ignored the notice and not responded to the complainant. Hence complainant approached this commission and seeking directions to OP for refund of compensation as referred above.

4. Though the notice was duly served on OP No.1&2, OPs were not appeared before this commission on the date of appearance. Hence OPs No.1&2 placed Ex-parte.

5. At this stage, complainant adduced his affidavit evidence along with Certificate U/S 65B of Indian Evidence Act, in support of the affidavit evidence, complainant produced 11 documents which are marked as Ex.P.1 to Ex.P.11. We heard the counsel for complainant and perused the materials on record.

6. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OP’s?

ii) Whether complainant is entitled for the relief?

iii) What order?

7.  Our answers to the above points are as follows:-

Point No.1:- Affirmative.

Point No.2:- Partly Affirmative.

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

                      REASONS

8. Point No.1&2:- These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

9. Upon going through the pleadings and documents placed before this commission, it is proved that complainant booked a flat in the project name GM orchid enclave, Electronic city, Phase-1 developed by OPs are in construction, complainant had paid Rs.1,00,000/- on 25.08.2019 towards an advance amount to OPs for booking the same. OPs acknowledged the receipt of amount, which are at Ex.P.3. OPs even issued the allotment letter dated 27.08.2019, allotted flat No.A2-07-17 block No. Tower A2,  which is at Ex.P.4. The said allotted flat measuring 500 sq.ft and carpet area of 305 sq.ft which costs Rs.21,00,000/- as per agreement amount, out of which complainant had paid an advance amount of Rs.1,00,000/-.

10. It is pertinent to note that OPs have issued a letter on 05.10.2019 for the payment of Rs.6,35,000/- as per the booking terms, complainant has to pay 35% of the payment within 10 days from booking date. Though it is prior to the cancellation request made by the complainant and he sought for refund of Rs.1,00,000/- in this complaint, demonstrate that complainant has not paid Rs.6,35,000/-.

11. Here the complainant’s allegations against OPs is with regard to the sale agreement which is at Ex.P.11, since there is a minor interest involved in the transactions and the complainant has over looked the same, therefore complainant written a letter dated 13.02.2021 to OPS stating that he has no more interest in buying the property, since there is minor interest involved and over all has paid a sum of Rs.1,00,000/- for purchase of flat. In the same letter he requested to refund the money with interest. Complainant also requested OPs for credit of amount to his account bearing No.30042242392 of State Bank of India, complainant caused legal notice dated 16.08.2023 when the OPs have not refunded the advance booking amount of Rs.1,00,000/- which was duly served on OPs No.1&2 neither replied to the legal notice nor refund the amount paid by the complainant. However complainant has no dispute with regard to the credit of amount to loan account of complainant at State Bank of India. But OPs not refunded Rs.1,00,000/- retained without giving any reason for retaining it. It shows the malafide intention of OPs when the complainant has cancelled the booking and sought refund of Rs.1,00,000/- with interest, it shows the deficiency of service on the part of OP No.1&2.  OPs neither appeared to defend their case nor placed any evidence. Hence, the evidence placed by complainant are unchallenged. OPs are liable to pay interest at the rate of 10% p.a. for the delay caused even after the request made by the complainant. OPs are liable to pay compensation of Rs.5,000/- and Rs.5,000/- towards cost of litigation. On the above reasons we answer Point No.1&2 in affirmative and partly affirmative respectively.

11. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

                                   ORDER

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part.
2. OPs are jointly and severally shall refund Rs.1,00,000/- with interest at the rate of 10% p.a. from 13.02.2021 till realization.
3. OPs further shall pay Rs.5,000/- towards compensation and Rs.5,000/- towards cost of litigation within 30 days from the date of order, failing which OPs shall pay interest at the rate of 12% p.a. on Award amount till realization.
4. Furnish the copies of the order and return the extra copies of pleadings and documents to the parties, with no cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 17^thday of February, 2024)

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

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

NIL