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

DATED 12th DAY OF SEPTEMBER 2022

ORDER

SRI.H.JANARDHAN, MEMBER

1. This complaint filed by the complainant under section 35 of C.P.Act, 2019 seeking relief against OP, to direct the OP to pay sum of Rs.2,00,000/- along with interest at 18% p.a. from the date of booking for non-allotment of plot booked by the complainant or direct the OP to allot the  plots booked by the complainant at the time of booking assured to the complainant by OP by receiving the booking amount of Rs.2,00,000/- and to pass such other reliefs as this commission deems fit.

2. The brief facts of the complaint is as under:

The complainant came in contact with the OP in the year 2014 and came to know that OP are forming layout in “Max Samruddi” IVC road, near Thindlu circle, Devanahalli Tq., After which the complainant has shown his interest to book the plot which was formed by the OP company. After which complainant visited the OP company and had shown interest to purchase the plot in the said layout. The complainant after enquired about entire documents related to the formation of the layout, the OP company assured the complainant that it is pending for final documentation process, which will going to complete as soon as possible. Believing the words of OP and assurance of OPcompany given to the complainant, the complainant booked the plot no.108 & 109 east facing measuring 30X40 ft. each for a total cost of Rs.19,68,000/-. After which, the complainant had paid booking amount of Rs.2,00,000/- through cheque bearing no.453796 dt.17.01.2015 drawn on ICICI Bank, Mangaluru Branch in favour of the OP. The OP acknowledged the same and have issued receipt wide no.BLR/14-15/4584. After booking the plot the complainantasked the OP when will OP complete the further procedures and make owner-buyeragreement, for which OP company replied that OP company will call the complainant within 20 daysof time by fixing a specific date, but OP company did notcall the complainant at all. So surprise to complainanthas not received any call from the OP company. The complainant himself finally approached the OP company by calling to their office, but he did not get any proper response from their end. So complainant visited physically to the OP company officeand enquired about agreement, but by giving reasons by OP companythat the documentation is pending for its finality, it will be get donewithin a month andthen will make agreement. So believing the complainant came back and even inspite of repeated follow ups by the complainant and also the complainant repeatedly contacted OP company over telephone, but there is no response from the OP company and after getting fed up on the attitude of the OP, the complainant lost his hopes with the OP company. Though OP companyfrequently was assuring the complainant that they are goingto allot the plot to the complainant within a reasonable time, but to the best known to the OP, neither allotted plot nor made any progress in the layout. After which, the complainant had issued legal notice to the OP company, for that also there was no response from the OP. Hence, the complainants alleged deficiency of service on the part of the OP and hence complainant filed thiscomplaint.

3. After service of notice, OP has  filed vakalath, but have not filed version. Hence, version of OP is taken as nil.

4. The complainant has filed his affidavit evidence and got marked exhibit A1 to P7.

5.      Complainant filed written arguments. Heard arguments of the complainant. Arguments of OP is taken as nil.   Perused documents.

6.      The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OPs?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

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

       Point No.1:- Affirmative in part.

      Point No.2:- Affirmative in part.

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

REASONS

8.  Point No.1 & 2: On perusal of the pleadings and as per exhibit A1, the booking form in  which is admitted that the complainant has booked a plot bearing no.108 & 109 with the OP company and  total consideration of the plots was fixed at Rs.19,68,000/-.  Also complainant has paid an advance amount of Rs.2,00,000/- towards booking amount and  the said payment details also mentioned in the booking form,  when complainant has paid advance amount of Rs.2,00,000/- and for which OP has issued receipt i.e. exhibit A3,   that reveals that OP have received said amount and have also acknowledged the same. The exhibit A2 reveals that the complainants has  paid an amount of Rs.2,00,000/- through cheque bearing no.453796 dt.17.01.2015 of ICICI Bank, Mangaluru branch. After making payment, the complainant has followed up with the OP to get the plot from the OP company. But, due to reasons best known to the OP,  the complainant was not allotted the plot  for the reasons best known to the  OP, further OP also assured that  layout would develop the layout and the complainant  would be put in possession of the same. But OP sought for time to make the further progress  for allotment of the site to the complainant. The complainant has also stated that he had booked the plot in the year 2014 and also complainant had also  made payment in the year 2015 and after which the complainant came to know that OP was  not able to allot the site to the complainant, then the complainant sought for the refund of the booking amount and the complainant had visited to the office in the year 2018 and informed OP that he is ready to cancel his booking with the OP company, because the project of the company has not been completed. Though the complainant has  stated that the cause of action accrued to him  on 28.10.2018 which is complainant’s  illusionary cause of action as neither denied for refund nor refused for refund. The OP  has also not appeared and have stated that the OP has accepted the cancellation of  the complainant. Hence, this date cannot be construed as cause of action. After which, the complainant has issued legal notice on 09.08.2021 and for which the OP has neither replied nor refunded the amount paid by the complainant. Non refund of the hard earned money of the complainant is  nothing but unfair trade practice. Even though the complainant had made several attempts for getting his hard earned money, but OP has not refunded the money. When the OP as not able to allot the site to the complainant, then it is the bounden duty of the OP to refund the said amount well within time, which is nothing but deficiency of service on the part of the OP. The complainant had also availed service of an advocate to file the complaint. Hence, the complainant is entitled for amount of Rs.10,000/- towards cost of litigation and to comply the said order, it is proper to fix the time bound for the compliance of the said order. Hence, we grant 60 days time to OP to comply the said order, if OP fails to comply the above  said order within 60 days, then the OP shall pay interest at 12% p.a. on Rs.2,00,000/- after expiry of 60 days.  Hence,  we answer the point no.1 &2 in the affirmative.

9.  Point no.3:- For the for going reasons, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. OP is  directed to refund an amount of Rs.2,00,000/-  along with interest at the rate of 9% p.a. from date of making payment till realization to the complainant and to pay Rs.10,000/- towards cost of litigation.
3. The OP shall comply this order within 60 days from the date of this order, failing which the OP shall pay interest @ 12% p.a. on Rs.2,00,000/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties and return extract pleading and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 12^th  day of September, 2022)

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

Documents produced by the representative of opposite party – R.W.1 :  Nil