BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 23rd DAY OF MARCH 2022
PRESENT
SRI RAVI SHANKAR – JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI - MEMBER
APPEAL NO. 902/2021
M/s Maxworth Realty India Limited,
A Company registered under the Companies Act
Having its office at KMP House No.12/2,
Yamuna Bai Road, Madhavanagar,
Bengaluru-560 001
Rep. by its Managing Director,
Sri. Kesavakolar
(By Sri. Mohan Malge, Adv.,)
……….Appellant/s.
-Versus-
Mahesh R S/o Raju G.V.T.
A/a 24 years, R/at #338/7,
3rd A Main, Yelahanka New Town,
Bangalore-560 064.
(In person)
……….Respondents
:ORDERS:
BY SMT. SUNITA C.BAGEWADI - MEMBER
This appeal is filed by the appellant/Opposite Party being aggrieved by the order dated:26.11.2020 passed by Bangalore 4th Add. District Consumer Commission, in C.C.No.1544/2018.
2. The brief facts of the complaint are as under:-
Opposite Party offered a Flat No.603 measuring 1520 Sq.ft. to the complaint in the project called ‘Max Meridian’ for total cost of Rs.75,00,000/- and accordingly complainant agreed for the same and paid booking advance amount of Rs.2,00,000/- through cheque dated:17.12.2014 and the Opposite Party acknowledged the same and issued receipt dated:31.12.2014. Thereafter the Opposite Party had issued a booking form and it was signed by both the complainant and the team head represented by Sri.Nagaraju .N and Execute Sri. S.B.Janardhan and also the Deputy General Manager Mr.Roppesh Sulegai. It is further case of the complainant that even after the lapse of more than 3 years, there was no response from the Opposite Party. Hence, the complainant decided to cancel the booking and submitted the application to the Manager of Opposite Party/Company for cancellation. But Opposite Party had not made any attempts to return the booking amount of Rs.2,00,000/-. Hence, the complainant issued legal notice to the Opposite Party to refund the advance amount with 14% interest, but the Opposite Party neither replied to the legal notice nor returned the amount. Hence, he filed a complaint.
3. After service of notice, the Opposite Party appeared and filed the version before the District Commission contending that the complaint is false, vexatious and frivolous and is not maintainable either in law or on facts and liable to be dismissed in limine. Opposite Party admitted booking of Flat and payment of booking amount, but denied that there was no response from the Opposite Party even after the lapse of three years and the complainant has written an application to cancel the booking. The alleged cancellation through letter dated:07.08.2016 is concocted by the complainant for the purpose of filing the complaint after limitation. The Opposite Party has not received any such letter, hence no need to return the said amount of Rs.2,00,000/-.
3(a) The Opposite Party further contended that as per the terms and conditions, the refund of the booking amount would be made within 30 days from the date of cancellation. The booking of complainant has not cancelled and therefore question of refund does not arise. The complainant never bothered to pay the balance amount and get the Flat registered. The Opposite Party has not received any letter from the complainant and Legal notice sent was belated and is time barred and it was sent on 20.07.2018, the apartment was booked on 01.12.2014. The complainant is not entitled to Rs.2,00,000/- as claimed, since the complainant has not paid the balance amount and has failed to obtain the Flat in time.
3(b) The Opposite Party further contended that the Opposite Party has invested huge amount to construct the said apartment building believing the words of the complainant that he would buy the Flat in it and it has suffered loss since the complainant has not come forward to buy the Flat as per agreed terms and conditions. The Opposite Party is ready to provide the same Flat or any other similar Flat if the complainant is ready and willing to buy by paying the required balance sale consideration amount. There is no deficiency of service on the part of Opposite Party. Hence, prayed for dismissal of the complaint.
4. After trial, 4th Addl. Bangalore District Consumer Commission, allowed the complaint in part and directed the Opposite Party to refund an amount of Rs.2,00,000/- with interest @ 10% p.a. in the form of compensation from the date of payment till the date of realization along with cost of Rs.5,000/-.
5. Being aggrieved by the said order, the appellant/Opposite Party preferred this appeal on various grounds.
6. We have heard the arguments of appellant side. Respondent filed objection to the appeal.
7. Perused the appeal memo, order passed by the District Commission, Bangalore and materials on record, we noticed that it is an evident that the respondent booked the Flat No603 measuring 1502 Sq.ft in ‘E’ Block in the project called “ Max Meridian” and respondent has paid an advance amount of Rs.2,00,000/- on 17/12/2014. The appellant acknowledged the same and booking form was signed by both the complainant and Team head represented by Sri. Nagaraju N and executive Sri. S.B.Janardhan and also the Deputy General Manager Mr.Roppesh Sulegai.
8. It is also an admitted fact that the appellant assured to hand over the Flat within three years from the date of booking of the Flat. However, even after lapse of three years, there was no progress in construction of the project and also no response from the appellant side. It is also an evident that the respondent decided to cancel the booking and sought for refund of booking amount and submitted application for cancellation to the Manager of appellant. However, the appellant neither cancelled the booking nor returned the booking amount to the respondent.
9. Perused the appeal memo, the appellant submitted that he had invested huge amount to construct the said apartment building believing the words of the complainant that he would buy the Flat in it and it has suffered loss since the complainant has not come forward to buy the Flat as per agreed terms and conditions. The appellant is ready to provide the said Flat or any other similar Flat if the respondent is ready and willing to buy by paying the required balance sale consideration amount.
10. Perused the order passed by the District Commission and materials on records produced by the respondent, we noticed that there was no any progress in the construction of the project even after lapse of three years and also in spite of request by the respondent, the appellant had not made any response and also the appellant has not produced any documents or photographs to show that the progress is still going on or it was completed. Mere statement in appeal memo without any documents, we cannot consider that the appellant is ready and willing to provide the Flat if the respondent is ready to pay the balance amount.
11. Perused the order passed by the District Commission, the District Commission relied on several decisions and passed the order. We also relied on the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, reported in 2018(1) CPR 436, NC, between Vatika Limited V/s Shaleen Chugh and Another, wherein the important point is stated as under:
“The act of the petitioner in not refunding the amount deposited by the complainant despite not having completed the project on time and further not even having committed the promised date of delivery of possession, amounts to deficiency in service”
12. In the present case, the respondent has paid booking amount of Rs.2,00,000/- to the appellant for Flat in the year 2014 and the appellant has assured to handover the Flat within 3 years from 2014 and in spite of several requests, the appellant has failed to hand over the Flat and on the application for cancellation, the Opposite Party also not paid the booking amount which was paid by the respondent. It is deficiency of service on the part of appellant. Hence, the respondent cannot compelled to wait indefinitely for the possession of Flat as there was no any development after lapse of 3 years from the payment of the booking amount.
13. Considering the facts, discussion made here, we are of the opinion that the order passed by the District Commission, Bangalore is just and proper. No interference is required. Hence, the appeal is liable to be dismissed. Accordingly, we proceed to pass the following:-
: O R D E R :
The appeal is dismissed. No costs.
The impugned order dated:26/11/2020 passed by the Bangalore 4th Additional District Consumer Commission in C.C.No.1544/2018 is hereby confirmed.
The amount in deposit shall be transmitted to the concerned District Commission to pay the same to the complainant.
Send a copy of this order to both parties as well as concerned District Commission.
Sd/- Sd/-
Lady Member. Judicial Member.
Tss
