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

DATED 11^th DAY OF JANUARY 2021

O R D E R

SRI.S.L.PATIL, PRESIDENT

The complainant filed this complaint under Section 12 of Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct the OP to refund the entire amount of Rs.8,53,000/- along with compensation of Rs.2,00,000/-.     

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

  The complainant submits that M/s Dreamz Infra India Ltd., Bengaluru-560034 – one of the representative by name Sri Vinay, Assistant Sales Manager has been contacted through phone and offered to purchase apartment which is located in the heart of the city and it is very near to the school, college, hospitals, Aerodrum etc., and also company forming layout in the name and style of Dreamz Simanth nearby Naganathapura, Hosa Road, Bengaluru and it is under construction.  Further she submits that after she visiting the M/s Dreamz Simanth in the month of March, 2016 and on 21.03.2016 after necessary negotiations she has filled details in the application form No.22232.  Further complainant submits that she paid total sum of Rs.8,53,000/- through cheque/cash in the following details:-

The complainant further submits that from the reliable sources, she has heard that the OP office has been closed.  Further submits that on 22.03.2016 OP gave memorandum of understanding along with one bunch, but no company or representatives are not signed on the memorandum of understanding and to the bunch.  Hence, this complaint is filed for praying refund of the amount along with compensation.     

3. After admitting the complaint, notice was ordered to issue to the OP, OP did not appeared, hence placed exparte.

4. Complainant has tendered her evidence by way of affidavit.  She has also produced documents in support of her case and marked Ex.A.1 to A.17.   Heard the complainant.

5. The points that arise for our consideration are:

1.  Whether the Complainant prove the deficiency of service on the part of OP, if so, entitled for the relief sought for?
2. What order?

  6.  Our answers to the above points are as under:

       Point No.1:  Partly in the affirmative.

      Point No.2:  As per the final order for the following

REASONS

7. Point No.1:  In this case, we have stated above OP did not appear to contest the claim of the Complainant by way of filing the version, hence placed exparte. Under such circumstances, non-appearance and non-filing of version can be drawn an adverse inference that, the OP has admitted the claim of the Complainant in the light of the decision reported in 2018 (1) CPR 314 (NC) in the case of M/s.Singla Builders & Promoters Ltd., vs. Aman Kumar Garg, wherein it is held that,

“Non-filing of written version to complaint before the forum, amounts to admission of the allegations levelled against them in consumer complaint”.

8. Any how we place the reliance on the available materials on record.  On going through the contents of the complaint it is evident that the complainant is entered into MOU dated 22.03.2016 with the OP for purchasing the flat. In this context, the complainant paid amount of Rs.8,53,000/- which is evident from the documents produced by the complainant.  But, the said MOU has not signed by both parties. To falsify all these facts, OP did not appeared. Upon causing notice, OP did not respond.  Hence, the complainant sought for refund of amount of Rs.8,53,000/- with compensation of Rs.2,00,000/-. In this context to place the reliance of the judgement reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund of earnest money.

“This decision again followed by NCDRC in the decision reported in 2018 (1) CPR 436 (NC) in the case of Vatika Limited., V/s Shaleen Chugh and Anr. Wherein the important point is stated as under:

The act of the Petitioner in not refunding the amount deposited by the Complainants despite not having completed the project on time and further not even having communicated the promised date of delivery of possession, amounts to deficiency in service”.

Hence, option is left open to him for enforcement of the agreement of sale directing the OP for registration of the sale deed if not sought for refund of money.    In this context, we inclined to direct the OP to refund the remaining amount of Rs.8,53,000/.

9. With regard to the compensation and interest is concerned, if the interest is charged at the rate of 10% p.a. by way of compensation in the light decision reported in 2019 (1) CPR 650 (NC) in the case of Pradeep Kumar Gupta and Ors. vs. Ireo Grace Realtech Pvt. Ltd., we hope ends of justice would meet sufficiently.  In the said judgement, it was held that:

“Consumer Protection Act, 1986 – Sec.14(1)(c) & (d) and 21–Real estate – Booking of residential flats by Complainants – Case of complainants is that not only possession of apartments was not offered to them, even construction is not complete despite they having made substantial payment to OP – If a builder fails to deliver possession of flat/plot booked with him, within time period committed for this purpose and is unable to justify the said delay, this would constitute defect or deficiency in service rendered by him to buyer and in such a case, this Commission, in exercise of powers conferred upon it by Section 14(1) (c) & (d) of Consumer Protection Act would be competent to direct refund of amount paid by buyer to builder, along with appropriate compensation for loss or injury suffered by buyer due to defect/deficiency in services rendered to him by builder-In all consumer complaints, opposite party shall refund entire principal amount received from complainants along with compensation in form of 10% simple interest- OP shall also pay sum of Rs.25,000/- as cost of litigation in each complaint”.

10. In the light of the decision cited supra, we come to the conclusion that complainant has proved the deficiency in service much less the unfair trade practice played by the OP.  Accordingly, the complainant is entitled to Rs.8,53,000/- with interest at the rate of 10% p.a. by way of compensation with litigation cost of Rs.5,000/-.  Accordingly, we answer the point No.1 partly in the affirmative. 

11. Point No.2:  In the result, we pass the following:

O R D E R

1. The complaint filed by the complainant U/s 12 of the Consumer Protection Act, 1986 is allowed in part. 
2. The OP is directed to refund an amount of Rs.8,53,000/- (Rupees eight lakh fifty three thousand only) with interest at the rate of 10% p.a. by way of compensation from the date of deposit till realization with litigation cost of Rs.5,000/-.  
3. We also direct the OP to realize the above said amounts to the Complainant within 3 months from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.
4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 11^th day of January, 2021).

List of documents produced by the complainant marked as Ex.A.1 to A.17 are as follows:-