Complaint filed on: 12-03-2015

                                                      Disposed on: 07-06-2016

BEFORE THE BENGALURU III ADDITIONAL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COMPLEX, 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027          

CC.No.485/2015

DATED THIS THE 7^th DAY OF JUNE 2016

PRESENT

SRI.H.S.RAMAKRISHNA, PRESIDENT

SMT.L.MAMATHA, MEMBER

Complainant: -

1. B.S.Shankara,

Flat no.401,

                                                    Supreme Signature

                                                    Apartment, Opp. Punam

    Mahal, Choultry,

    7^th Main road, Kengeri

    Satellite Town, Bengaluru

2. A.R.Chidambara

“Vidya Electricals, Mallikarjuna Street,

Sringeri

V/s

Opposite party:-       

                                        The Managing Director, 

                                        Maxworth Realty India

KMP house, No.12/2,

Yamuna Bai Road, Madhavanagar, Bengaluru-21

ORDER

SRI.H.S.RAMAKRISHNA, PRESIDENT

          This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OP to refund a sum of Rs.1.00 lakh each toward booking amount and Rs.25,000=00 towards  interest at 10% p.a. on the booking amount from the date of deposit till the date of refund and to pay Rs.5,000=00 each to the complainants towards expenditure incurred.

2. In the complaint, the complainant alleges that, the complainants have booked sites in the project of MAX MARVEL-III by paying booking amount of Rs.1.00 lakh each. Since the sites were not alloted even after a lapse of more than two and half years and as we were not willing to get site in any other project of the company and they are in urgent need of money to meet the family expenditure, they had applied for refund of booking amount of Rs.2.00 lakhs on 16-10-2014. But the company has not refunded the amount even after a lapse of more than four months inspite of several visits to the office causing a lot of mental agony, physical strain and avoidable expenditure, although the company is liable to refund the booking amount after 30 working days from the date of cancellation as per the condition agreed thereon In the last visit also i.e. on 21-2-2015, the company did not refund the amount inspite of written assurance given by Sri.Roopesh, General Manager and the complainants are very much pained to hear these words from the company. Hence the present complaint is filed.

3. In response to the notice, the OP has appeared through his counsel and filed version.  In the version, he pleaded that, the complaint is not maintainable either in law or on facts and it is liable to be dismissed. The complaint is vexatious and frivolous in nature. The OP has developed the property in and around Bengaluru district and formed a residential layout called MAX MARVEL-III situated at Margondanahalli village, Kundhana hobli, Devanahalli taluk, Bengaluru Rural District. In booking form the complainants have booked residential each two sites, residential bearing sites no.227 and 228 and 229 and 230 each site measuring 30 X 40 1200 sq. ft. east facing project at the rate of Rs.540=00 per square feet and total cost of each one site Rs.6,48,000=00 each booked amount of Rs.1.00 lakh by paying a sum of Rs.25,000=00 through cheque bearing no.658598 dated 13-8-2012, Rs.75,000=00 cheque bearing no.946438 dated 13-8-2012 and Rs.50,000=00 cheque bearing no.946440 dated 13-8-2012, Rs.50,000=00 cheque bearing no.946441 dated 13-8-2012. The complainant asked refund the booking amount, as per the booking form terms and conditions refund of booking amount will be done after 30 working days from the date of cancellation and cancellation without a valid reason 15% of booking amount will be deducted towards service and transport charges and within 20 days have to pay 30% of the total sale consideration and executing the sale agreement. In this case, the complainant failure the compliance the booking form terms and conditions. MAX MARVEL-III residential layout is one of the project of OP Company by entering into an agreements with the landlords and by investing a huge amounts on the said project. The OP is responsible for getting all kinds of sanction /approval/ license and NOC for the completion of the said project on behalf of the land lords. The project is going to delay because of the above said bonafide reasons and not intentional. If the complainant wants the site bearing nos.227, 228; 230 and 229 otherwise the OP is ready to refund the booking amount paid by the complainants and the complainants have filed this false and frivolous case against the OP. Hence prays for dismissal of the complaint.

4. On behalf of the complainants, the affidavit of one B.S.Shankara and A.R.Chidambara has been filed. On behalf of the OP, the affidavit of one Roopesh Sulegai has been filed. Heard the arguments of both the parties.

5. Now the points that arise for our consideration are;

1. Whether the complainants have proved the alleged deficiency in service by the OPs?
2. If so, to what relief the complainant is entitled?

6. Our findings on the above points are;

          Point no.1: In the Affirmative

          Point no.2: As per the final order

REASONS

          7. As looking into the averments of complaint and also the version filed by the OP, it is not in dispute that, the complainants have booked residential sites bearing No.230 and 229 in the project of MAX MARVEL III situated at Margondanahalli village, Kundhana hobli, Devanahalli taluk, Bengaluru Rural District by paying the booking amount of Rs.1.00 lakh each, for that to substantiate this fact, the complainants in their sworn testimony reiterated the same and also produced the receipts. As looking into the receipts dated 3-8-2012, 25-8-2012 and 8-8-2012, under these receipts, the complainants Sri.Shankara.B.S, and Chidambara.A.R. have booked the sites no.230 and 229 by paying a sum of Rs.25,000=00, Rs.25,000=00 and Rs.50,000=00; and Rs.50,000=00 and Rs.50,000=00 respectively through cheques bearing nos.658598 dated 13-8-2012,  cheque No.658597 dated 13-8-2012, cheque no.946442 dated 25-8-2012, cheque no.946440 dated 13-8-2012 and cheque no.946441 dated 13-8-2012 issued by the complainants in favour of OP for receiving a sum of Rs.1.00 lakh each from the complainants, so from this evidence of complainants remains unchallenged, to disbelieve the evidence of complainants, there is no contra evidence, therefore it is proper to accept the contention of the complainants that, the complainants have booked the sites bearing no.230 and 229 with the OP by paying booking amount of Rs.1.00 lakh each.

8. It is further case of complainant that, the sites were not alloted even after lapse of more than 2 ½ years and the complainants were not willing to get the sites in any other project of the company and as the complainants were in urgent need of money to meet the family expenditure, so the complainants has applied for refund of booking amount of Rs.1.00 lakhs each on 16-10-2014. But the company has not refunded the amount, even after lapse of more than four months, inspite of several visits to the office causing a lot of mental agony, although the company is liable to refund the booking amount after 30 working days from the date of cancellation as per the condition agreed thereon, in the last visits also i.e. on 21-2-2015 the company did not refund the amount inspite of written assurance given by the Roopesh, General Manager. To substantiate this fact, the complainants in their sworn testimony reiterated the same and also produced the letters correspondences, as looking into the letters dated 16-10-2014 and 23-2-2015, the complainants sent letters to the OP official and demanded for refund of booking amount, but the OP has not refunded the amount, hence the complainants wants to canceling the sites and demanded to refund the booking amount. Evenafter the complainants have demanded for refund of booking amount by sending letter dated 16-10-2014 and 23-2-2015, inspite of that, the OP has not refunded the booking amount to the complainants for that reasons, the complainants issued letters dated 16-10-2014 and 23-2-2015 calling upon the OP to refund booking amount of Rs.1.00 lakh each, even after the said letters were served on the OP, the OP has failed to comply with the demands of complainants in order to issue no reply, this evidence of complainants remains unchallenged, even after discard the same there is no contra evidence, therefore it is proper to accept the contention of complainant that, the OP has failed to refund the same.

9. On the other hand, it is defence of OP that, the complainants have asked refund of booking amount, as per booking form terms and conditions, refund of booking amount will be done after 30 working days from the date of cancellation and cancellation without a valid reason 15% of booking amount will be deducted towards service and transport charges and within 20 days have to pay 30% of the total sale consideration. In order to substantiate this defence, the OP Sri.Roopesh Sulegai has filed his affidavit and in his affidavit reiterated the same, to substantiate this defence, the OP has not produced any evidence. On the other hand, as looking into the receipts, no doubt, in the receipts, the complainants have paid a sum of Rs.25,000=00 on 3-8-2012, Rs.25,000 on 3-8-2012 and Rs.50,000=00 on 25-8-2012; Rs.50,000=00 and Rs.50,000=00 to the OP, but the OP never complied the execution of site or refund the booking amount. On the other hand, as evidence placed by the complainants, the complainants are demanded for refund of booking site by sending letters dated 16-10-2014 and 23-2-2015, but the OP has not responded the same and since the complainants demanded for refund, the OP failed to refund the booking amount i.e. more than one year, thereby it is not proper to accept the defence taken by the OP. As per the evidence placed by the OP and also version filed by the OP, it is crystal clear that, on the date of booking the sites, the complainants paid Rs.1.00 lakh each and for the receipt of the same and the OP issued receipt in favour of complainants, whereas the complainants paid a sum of Rs.1.00 lakh each, so it is bounden duty of the OP to execute the sale agreement from the date of booking the site in favour of complainants, but in spite of this, the OP has failed to execute the sale agreement in favour of complainants, therefore, this fact clearly amounts to deficiency of service on the part of the OP. On the other hand, as evidence placed by the complainant, it is crystal clear that, the OP has failed to abide by the terms and conditions, but the OP has failed to execute the sale agreement in favour of complainant, for that reason, the complainant has demanded for cancellation of booking of sites and demanded for refund of advance amount, therefore the cancellation made by the complainants are of valid reason, therefore it is not proper to accept the defence taken by the OP. On the other hand, the complainants by producing evidence clearly establish that, there is deficiency of service on the part of the OP, thereby it amounts to deficiency of service on the part of the OP. Hence, we answered these points in the affirmative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint is allowed holding that there is deficiency in service on the part of the OP. The OP is directed to refund the booking amount of Rs.1,00,000=00 each to the complainant no.1 and 2. The OP is further directed to pay a sum of Rs.15,000=00 each to the complainants no.1 and 2 as compensation for mental agony and Rs.3,000=00 as cost of this litigation to the complainant. The OP is granted 30 days times from this date to comply this order. Failing which, the aforesaid amount shall carry interest at 12% per annum from the date of this order, till the date of realization.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 7^th day of June 2016).

MEMBER                                           PRESIDENT

-:ANNEXURES:-

1.     Witness examined on behalf of the complainants by way of affidavit:

B.S.Shankara and A.R.Chidambara, who being the complainants were examined.

2.     Documents produced on behalf of the complainants:-

          1. Letter of complainants dated 16-10-2014 and 23-2-2015

          2. Copy of four receipts issued by the OP dated 3-8-2013, 25-8-2012 and 8-8-2012

3.     Witness examined on behalf of the OP by way of affidavit:

Roopesh Sulegai, who being the OP was examined.

4.     Documents produced on behalf of the OP:-

          No documents are produced

MEMBER                                           PRESIDENT