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

DATED 19^THDAY OF AUGUST 2023

O R D E R

SMT.M.SHOBHA, PRESIDENT

The complaint has been filed by the complainant under Section 12 of Consumer Protection Act, 1986against Opposite Party (herein after referred as OP) with a prayer to direct the OPas follows;

1. Direct the OP to refund the entire amount of Rs.3,50,000/- along with 18% p.a., from the date of making payments till realisation.
2. Direct the OP to pay the complainant Rs.50,000/- towards compensation for deficiency in service.
3. Direct the OP to pay compensation of Rs.50,000/- to the complainant towards shock, mental and physical suffering and loss
4. Grant such other reliefs deemed fit.

2.The brief averments made in the complaint are as under:

The OP along with her staff represented the complainant purchased land in Sy.No.46, 46/P96, 46/P114, 46/P182 measuring 13 acres situated at Kaggalipura Village, uttarahalli Hobli, Bangalore South Taluk, Bangalore.  The complainant booked a site measuring 30X40 feet in the proposed project known as TGS SARASWATHI for a total sale consideration of Rs.7,00,000/-. The complainant paid sum of Rs.3,50,000/- on different dates and entered into Memorandum of Understanding with OP on 04.01.2016. The OP has to complete the formation of layout within the stipulated period from the date of entering into MOU and thereafter to sell the site to complainant. If the OP fails to form layout and allot sites to complainant within the stipulated time then the complainant shall entitled for refund of the amount within 90 working days.

3.  Complainant further submits that even after lapse of several months from the date of entering into MOU, the OP did not start the project till today. Complainant approached the OP to return back the advance amount, but the OP failed to give proper and appropriate response. Hence complainant approached the OP to cancel the MOU by signing all necessary paper and return back the advance amount within 90 days from that day.  But OP failed to act as per the promise.

4.  Hence complainant issued legal notice dated 06.03.2019demanded to return back the principal amount of Rs.3,50,000/- with interest at 18% p.a., the notice sent to OP returned as Party left. Hence this complaint.

5.  After filing of the complaint, notice was issued to the OPs, she remained absent even after notice was taken by the complainant through paper publication in “HosaDigantha” news paper.

6.  The complainant in order to prove the contentions SPA holder of the complainant has filed his affidavit evidence and 04 documents marked.

7.  Heard arguments of the complainant. We have perused the complaint and documents produced by the complainant.

8.  The following points arise for our consideration:-

1. Whether the complainant has proved the deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs claimed in the complaint ?
3. What order?

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

Point No.1:- Affirmative

Point no.2:- Affirmative in part

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

REASONS

10. 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 and documents produced by the complainant. Inspite of issue of notice through paper publication, the OP remained absent. OP neither challenged the allegations made in the complaint and also evidence and they remained unchallenged.

11. It is clear from the evidence and allegations made in the complaint and documents that the OP is a company registered under the Companies Act. On the basis of the advertisement given by them, the complainant has booked a site measuring 1200 sq.ft., in the proposed project named TGS SARASWATHI. The complainant agreed to purchase the said flat for a total consideration of Rs.7,00,000/- and he has paid Rs.3,50,000/- and entered into MOU on 04.01.2016 with the OP.

12. Even though OP has agreed to complete the project has not at all started the project and they have simply postponing the project by one or the other reason. After that the complainant hascancelled the MOU and also requested the OP for refund of the advance amount received along with interest within a period of 90 days but OP failed to refund the advance amount. After that the complainant has issued legal notice dt.06.03.2019 calling upon the OP to refund the amount, but said notice was returned with an endorsement that party left.

13. In support of the contentions of the complainant, he has produced Copy of the Special power of attorney, copy of the MOU, Copy of the payment receipts, copy of the legal notice.

14. Even though, the complainant has paid substantial amount of Rs.3,50,000/-, the OP have neither started the project nor handed over the possession of the site in favour of the complainant as agreed in the MOU. The payment made by the complainant is not at all disputed by the OP. The OP has not at all developed the proposed project after receiving the amount within an agreed period and there by committed deficiency of service and unfair trade practice. As per assurances given by the OP and on the basis of the advertisement given by the OP, the complainant has entered into MOU with the OP and also paid part of the sale consideration in the year 2016 itself. The OP has neither refunded money nor handed over the site. There is no evidence or documents placed before this Commission that the OP have completed the project or they have handed over the possession of the site booked by the complainant. The conduct of the OP clearly discloses that the only intention of the OP is to grab the money from the prospective buyers and utilize the amount for their own purposes. The OP have no intention to develop the project and handed over the flat to the prospective buyers even after collecting substantial amount from them.  In view of this the complainant suffered mental, physical and financial harassment. Under these circumstances, the complainant clearly established the deficiency of service on the part of the OP. Therefore, the complainant is entitled for the relief and the complaint is liable to be allowed in part. Hence, we answer the Poin-1 in the affirmative and Point No.2 partly in the affirmative.
15. Point no.3:-.  The complainant is entitled for entire amount of Rs.3,50,000/- paid to the OP as advance along with interest  at the rate of 10% per annum from the date of respective payments till realization, failing which the amount will carry additional interest at 12% per annum. The complainant is also entitled for compensation of Rs.50,000/- towards deficiency of service and further towards shock, mental, physical suffering and for  loss of time due to deficiency of service on the part of the OP. The complainant is also entitled for litigation expenses of Rs.10,000/- from the OP. The OP is directed to pay entire amount in favour of the complainant within 60 days from the date of this order.  Accordingly, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund entire amount of Rs.3,50,000/- with interest at the rate of 10% p.a. from the date of respective payment till realization.
3. The OP further directed to pay compensation of Rs.50,000/- towards shock, mental suffering and deficiency of service.
4. The OP further directed to pay Rs.10,000/- towards litigation expenses.
5. If the OP failed to pay the amount within 60 days, the amount of  Rs.3,50,000/- will carry additional interest at 12% p.a. after expiry of 60 days.
6. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 19^thday of AUGUST, 2023)

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

Documents produced by the representative of opposite party :

NIL