BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

07^th DAY OF JUNE 2016

O R D E R

SMT. SHANTHA P.K, MEMBER

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to refund the amount of Rs.3,00,000/-, to pay additional sum of Rs.50,000/- compensation for monetary loss and mental agony and also to pay litigation costs.

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

The complainant booked a Flat No.302 measuring 900 unit for a total consideration of Rs.46,00,000/- under a project named ‘Nishita’s Honey Dew’ located at HSR Layout, Bangalore.  The complainant has made a booking payment of Rs.3,00,000/- to the OP through a cheque dated 19^th September 2014 which he was asked to pay in the name of Image Construction.  The booking form was No.389.  Due to certain personal reasons, the complainant had decided to cancel the booking of that Flat.  Complainant approached the office of OP and applied for the cancellation of the same.  An executive of the OP apprised the complainant that he would receive the refundable amount of Rs.3,00,000/- after three months as per the company’s rules and policy.  However, after 3 months when the complainant again approached the office of the OP but the executives of the OP told him that they would not refund the said amount to the complainant.  He tried to enquire about this number of times to the said issue but the OP did not consider to respond to the inquiries made by him with regard to redressal of his grievances.  The complainant has been trying to communicate with the OP for some time but there was no response from the OP side.  The complainant tried to resolve the dispute amicably by sending a letter dated 30^th April 2015 to the OP but there was no response from OP.  Hence, complainant felt deficiency in service on the part of OP and filed this complaint against OP.

3. In response to the notice issued, OP entered their appearance through their advocate however failed to file their version despite sufficient time and opportunity given.  Thereafter, the complainant was called upon to file his affidavit evidence.  Accordingly, the complainant filed his evidence by way of affidavit reiterating the allegations made in the complaint.  Heard the arguments advanced by the complainant.

4. Perused the allegations made in the complaint, sworn testimony of the complainant, written arguments and the documents relied upon by him.

5. Though OP appeared through their advocate but failed to contest the complaint by filing their version.  For the reasons best known to them, the OP has failed to contest the complaint, denying the allegations made against them.  We don’t find any reasons to disbelieve the allegations made in the complaint as well as the sworn testimony of the complainant.  The evidence led-in by the complainant stands unchallenged.

6. Admittedly the complainant had booked a Flat bearing No.302 measuring 900 square feet in the project called ‘Nishita’s Properties’ vide booking form No.389 on 15.09.2014.  Out of the total consideration of Rs.46,00,000/-, the complainant paid advance amount of Rs.3,00,000/- through cheque on 19.09.2014 drawn in favour of Image Constructions.  OP admitted the receipt of advance amount of Rs.3,00,000/- from the complainant for booking of the Flat.  For certain reasons, the complainant decided to cancel the booking of the Flat and requested the OP to refund the advance amount of Rs.3,00,000/- paid to him on the date of booking.  Again complainant issued a letter to OP for cancellation of the Flat on 25.10.2014.  The executives of OP apprised the complainant that he would receive the refundable amount of Rs.3,00,000/- after three months as per the company rules and policy.  But after three months when the complainant again approached the OP, the executives of OP told the complainant that they would not refund the said amount.  

7. Though the complainant tried to resolve the dispute amicably by sending a letter dated 30^th April 2015 to the OP, OP neither came forward to settle the matter nor responding anything.  Therefore, it is evident that there is a deficiency of service on the part of OP.  Due to the irresponsible behavior on the part of OP, the complainant has suffered financial loss and mental agony.  The conduct of the OP in not refunding advance amount to the complainant amounts to gross negligence and deficiency in service on their part.  The complainant suffered inconvenience and mental agony due to non performance of the promise made by the OP.  Certainly he must have suffered mental agony and financial loss because of not refunding the advance amount paid by the complainant.  The OP did not appear and contest the claim of the complainant.  We do not find any reason to disbelieve the sworn testimony of the complainant. 

8. It is pertinent to note here that the complainant has cancelled the booking within two months from the date of booking.  There is no material available on record to believe that the OP had made any investment for the construction of the Flat booked by the complainant since the cancellation has been done just within two months from the date of booking.  There is no reason to disbelieve the unchallenged affidavit evidence of the complainant and the documents produced.  We are satisfied that the complainant has proved the deficiency in service against OP.  Under the circumstances, we are of the considered view that OP is liable to refund advance amount of Rs.3,00,000/- to the complainant within 30 days from the date of receipt of this order failing which OP shall refund the said amount along with interest @ 12% p.a from the date of complaint to till the date of realization along with litigation cost of Rs.3,000/- to the complainant.  Further the OP has to be directed to pay compensation of Rs.10,000/- to the complainant.

9. In the result for the foregoing reasons, we proceed to pass the following:

       O R D E R

The complaint filed U/s.12 of the Consumer Protection Act, 1986 by the complainant is allowed in part.  OP is directed to refund the advance amount of Rs.3,00,000/- (Three Lakhs Only) to the complainant within 30 days from the date of receipt of this order failing which OP shall refund the said amount along with interest @ 12% p.a from the date of complaint to till the date of realization.  Further OP is directed to pay compensation of Rs.10,000/- to the complainant for causing mental agony & financial loss together with litigation cost of Rs.3,000/-.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 07^th day of June 2016)

MEMBER                            MEMBER                     PRESIDENT

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COMPLAINT NO.1069/2015

Complainant                 -        Sri. M.Pazhanivel,

Bangalore-560068.

                                          -vs-

Opposite Party              -        The Managing Director,
                  NISHITA’s PROPERTIES,

                                                     Bangalore-560 040.

Witnesses examined on behalf of the complainant dated 20.10.2015.

1. Sri. M.Pazhanivel,

                 OP    -       Absent

MEMBER                            MEMBER                     PRESIDENT

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