O R D E R

SRI.S.L.PATIL, PRESIDENT

1. This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 praying for an order against Opposite Parties (herein after referred as OPs) to direct OPs to pay deposited amount of Rs.8,07,000/- along with interest @ 18% p.a., to pay compensation for the inconvenience, mental pain and agony and financial loss suffered, and to grant such other reliefs under the circumstance of the case in the interest of justice and equity.
2. The brief averments made in the complaint are as follows:

OP is a company incorporated under Companies Act, 1956 and carrying on the business under the name and style of M/s Max Worth Realty India Ltd., and OP Nos.1 to 3 are the Directors of the said company and the OP No.4 is a marketing executive connected with all the layouts and sale of sites to the general public.  The complainant was approached in June, 2011 by an executive of the OPs by name Mr.N.Vijaya Kumar who was the Assistant Business Development Manager along with this collegue one Mr.E.Venkatesh a Marketing Executive and citing some reference of Shankar T.V.Channel and he explained to the complainant their company has formed a wonderful layout consisting of residential sites with all civic amenities and book a site with nominal amount of Rs.50,000/- and again emphasized that their layout is formed out of converted lands vide Conversion Order dated 12.09.2011 in respect of Sy.No.9/2 for two acres 24 gunts, 13/1 for 35 gunts, 13/2 for 35 guntas, 13/3 for 30 gunts, 13/4 for 35 guntas, 13/6 for 19 guntas, 13/6-35 guntas and 137/-29 guntas in all amounting to 7 acres 33 guntas of the agricultural land situated at Devanahalli Taluk, Kundana Hobli, Dyavarahalli village, Bengaluru Rural which have been converted to residential purpose under Karnataka City and Village Development Scheme, 1991 under Section 14. The copy of the said convernsion order dated 12.09.2011 is produced as per Annexure – A.

Complainant filed an application for allotment of site on 12.10.2011 along with initial deposit of Rs.50,000/- through cheque No.426131 dated 12.10.2011 drawn on SBM (Now SBI) in their layout called “Max Green Orchids/Max Orchards” bearing site No.95, measuring 30 x 40 feet.  The complainant also filed an another application in the name of his wife Mrs.B.G.Prathima for allotment of adjoining site No.94 and tenderd another cheque for Rs.50,000/- through cheque No.673030 dated 19.04.2012 drawn on HDFC Bank, Kasturba Branch, Bengaluru-560001. The complainant has produced copy of applications and printed brochure as per Annexure B and C.

The complainant submits that the officials of OPs have promised him registration of the site within six months i.e. by 30^th June, 2012 in Max Green Orchids and OPs agreed that the rate for the said sites at Rs.490/- per sq.ft.  The complainant further submits that after deposited the money, the officials of OPs persuaded the complainant to pay further deposits to enable the OPs to obtain requisite approvals from the Government Authorities Viz: BIAPPA/BMRDA etc., as per  Annexure-D.

It is further submitted by the complainant that after lapse of one and half year, the OPs claim that there are some disputes with the land owners of Max Green Orchids and therefore they could not allot/register the aforesaid sites within six months as promised earlier and the OPs also informed the complainant that there will be a delay in the execution of the said project and therefore they requested the complainant to have an alternative site booked in the OPs another project called “Max Residency-III”.  To this effect Mr.Vijay Kumar issued a letter of confirmation dated 19.05.2013 (As per Annexure-E) stating that the amount deposited against sites Nos.94 and 95 in Max Green Orchid praoject on concelation of the said booking an amount of Rs.2,30,000/- was transferred to the credit of Max Residency – Phase III project for allotment of site No.172. The complainant further submits that left with no alternative and solely with an intention of procuring a dwelling site for his family at any cost, took the advice of the officials M/s Vijay kumar, Mahadev, Abdul Rehman in consultation with Mr.Roopesh Sulegai, DGM, booked a site No.172 in Max Residency-III by depositing another sum of Rs.50,000/- by cheque No.673043 dated 19.05.2013 drawn on HDFC Bank, Bengaluru.  The complainants further submits that according to OP No.4 was adviced to withdraw his booking and get the amount transferred back to Max Orchids Phase-2 which the complainant without raising any objections agreed to the said proposal.

As per assignment agreement dated 19.05.2014 the said rate per sq.ft. was revised to 600 per sq.ft. which the complainant without any fuss had agreed.  The OPs insisted that the complainant should file fresh application for allotment of site and accordingly booking form was filed once again on 15.02.2014 together by affixing his photographs as per Annexure F and G.

The complainant submits that even after belated agreement, a lapse of one year and having been perturbed and disappointed, the complainant went and met the OPs on 09.05.2015 and expressed his agony as to inordinate delay in secujring a dwelling site in sptie of having already deposited the entire cost of the site as per the Assignment Agreement in total sum of Rs.7,97,000/-, in proof of which the complainant produced statement of account issued by OPs confirming payment of deposits during the period of 12.10.2011 to 21.02.2015.  The complainant further submits that delay in registration was brought to notice of the OPs, held out a promise that a site will be registered within two months time, to this effect the OP No.4 had issued letter of undertaking to the effect that the site will be registered within two months.  The copy of undertaking dated 09.05.2015 is produced as per Annexure-H.

It is further submitted by complainant that after a long wait, the complainant was forced to communicate his anguish by letter dated 25.07.2015 sent under RPAD addressed to OP No.1 Mr.Keshava the CMD which was through received by him he did not bother to even acknowledge the said letter nor has he sent any response to the said letter so far.  Then the complainant visited the office of OPs and enquired as to why there was no reply to the letter dated 25.07.2015 for which the OP No.4 expressed his ignorance and requested for a copy of the said letter, accordingly complainant handed over a copy of the letter dated 25.07.2015 to the OP No.4 on 31.08.2015. 

The complainant submits that he was shocked to note that Max Green Orchid layout which was shown as developed layout during his visit in the month of October, 2011 is now in ruins and is a barren land without any development work having been carried out.  Notwithstanding the personal assurances given to the complainant, the OPs have misereably failed to register a site in the name of complainant during the last three years.  The complainant has not received any communication from the OPs and so far it has been one way communication.  In the interregnum, the OP No.1 Mr.Keshava CMD suggested the complainant to have a site registered in Max Abyudaya which is alleged to have all the clearances and suitable for registration but, however the complainant was told that the cost of the site would be Rs.1,000/- per sq.ft.  The complainant once again agreed to try the same in spite the cost being 100% higher than the original cost of site at Rs.490/- per sq.ft. and he was forced to shift his deposits to other project Max Abudhya by filing a separate application as insisted by the OPs indicated cost for 30 x 50 site @ Rs.15 lakhs (Rs.1000 per sq.ft.)

It is further submitted by the complainant that in spite of his financial stress and at the same time all the faults, deficiencies and lapses being attributed solely to the OPs, he came forward and filed his application for securing site in Max Abyudaya on 21.12.2015 and simultaneously got his entire deposit amount of Rs.7,97,000/- transferred from Max Orchids to Max Abyudaya.  The complainant having expressed his disappointment in Septemeber, 2017 then the OP No.4 suggested the complainant to have a site secured in Max-Chethana as the said layout has all the approvals.  Even to this, the complainant had agreed to purchase a corner site No.20 with a dimension of 30 x 40 ft at a cost of Rs.950/- per sq.ft. and the date of registration was also fixed for Friday the 8^th September, 2017 but the same was put off by the OP No.4 for the reasons best known to him.  Further the complainant was taken by surprise that the project Max Chethana was not formed by the OPs but they are only acting as marketing and selling agents for the sites already formed in the said layout but belonging to some other owner/vendor altogether.

It is further submitted by the complainant that reposing trust and confidence inspite of repeated failures and deficiency of service, the complainant still went ahead and purchased Bankers Cheques for balance payment towards cost of site in an amount of Rs.4,00,600/- and three other separate Bankers cheques for stamp duty and registration charges to be paid at Sub-Registrar Office.  Besides the complainant had also paid a sum of Rs.10,000/- by way of cheque No.681410 dated 28.08.2017 drawn on State Bank of Mysore as Administrative charges demanded by the OPs for registration of site No.20 in Max Chethana and receipt of the same is aknoweldged by the OPs vide receipt No.BLR/17-18/0284 dated 28.08.2017.  However, the complainant having been dissatisfied had declined his proposal to purchase the said site, consequently OP No.4 promised that the entire amount paid by him so far in a sum of Rs.8,07,000/- will be transferred back to the original account of the complainant where he had originally sought the allotment of site i.e.. Max Green Orchids for site No.125. 

Further complainant submits that OP No.4 promised that site No.125 in Max Orchids Phase-II will be registerd within a couple of months after their company obtains requisite clearance from Government of Karnataka in terms of the letter dated 27.06.2017 of BMRDA therefore, appealed not to insist on refund of deposited money.  The complainant further submits that he had faced extreme difficulties in meet either Mr.Keshava or Mr.Roopesh as the OPs are in the habit of not responding to calls of the complainant. 

Further complainant submits that under the facts and circumstances narrated above, he was constrained to cause a legal notice issued to OP No.1 vide notice dated 09.07.2018 calling upon the OP No.1 to register a site in any of their approved layouts with all amenities secured in favour of complainant or otherwise refund the amount collected from him along with interest at 18% p.a. but they have failed to reply till date. 

The cause of action for the complainant first arose on 12.10.2011 and 19.04.2012, when the complainant filed his applications for allotment of site in Max Green Orchids and subsequently on 25.07.2015 and later on 31.08.2015 when the complainant wrote about delay in registering the site and finally on 09.07.2018 when the legal notice was issued to the OP No.1 for complainace either to register a proper site or to refund the deposited money along with interest and also on subsequent dates which is within the territorial jurisdiction of this Forum. Hence, this complaint.

3. On receipt of the notice OPs did appear and filed common version.  In the version the OPs have submits that complaint is vexatious and frivolous, is not maintainable either in law or on facts and liable to be dismissed in lemine.  It is admitted that the allegations made in complaint with respect of booking plot No.125 in Max Orchid III and paid Rs.8,07,000/- as advance amount.

It is further submitted by the OPs that with respect to allegations of complainant that there were no developmental activities carried on after receipt of the said amount, waiting of OPs for approval from the Government authorities, made several request to register the sale deed ultimately requested to refund the amount, OPs given the false promise and assurance, cheated the complainant by receiving the amount with a dishonest intention, the act of OPs is unfair trade practice and has utterly caused deficiency of service are all baseless allegation and are specifically denied as incorrect. 

OPs further submits that is running Real Estate Business and registered under the Companies Act and having acquired goodwiil amongst other Real Estate Company all over India.  The main object of the company is to purchase the lands and formation of layout, constructing plots and selling the same in the name and style of Max Worth Realty India Ltd..  It is further submits that they always ready and willing to execute the absolute sale deed in favour of the complainant either in the Max Orchids Project which are fully developed by obtaining all Government approvals but, the complainant not ready to register, when the complainant is violated the terms and conditions of booking form and conditions and is not ready and willing to purchase the site ready with full consideration to get absolute sale deed, unfair trade practice and deficiency of service does not arises and hence, OPs are not liabel to pay interest, compensation and litigation expenses etc.,  Therefore, OPs have prayed to dismiss the complaint and order to get register the absolute sale deed by paying balance sale consideration in project of Max Orchid or Max Maryel which are fully developed by obtaining all authorities approvals.

4. Complainant has filed affidavit evidence on his behalf as P.W.1 and also additional affidavit evidence of P.W.1.  The OP No.1 has filed affidavit evidence on their behalf.  The complainant has produced documents marked as Ex.A.1 to A.16.   Heard the learned counsel for both sides.

        5. The points that arises for our consideration are:

  6. Our answer to the above points:

REASONS

      7. Point No.1: In the instant case, the complainant has sought for the relief of directing the OPs for refund of the deposited amount of Rs.8,07,000/- with interest at 18% p.a. in the consequences relief including the cost of litigation.

        8. The undisputed facts, which reveals from the pleadings of the parties goes to show that the OP No.1 to by way of filing the version, admitted the claim in respect of booking various plot numbers as per the instance of the OPs and in all paid Rs.8,07,000/- which can be seen on going through the para No.3 of the version reads thus:-

“The allegations made in complaint with respect to booking plot No.125 in Max Orchid III the complainant paid of Rs.8,07,000/- advance amount are admitted.”

        It is settled principles of law that admitted facts need to be proved under Section 58 of the Evidence Act.

        9. With regard to the mode of booking of site and also diverting the booking of site from one site to another site are concerned, we had specifically stated in para No.2 of this order.

        10. The main grievance of the complainant is that the site booked by the complainant are one or other reasons transferred from one land to another land and not free from encumbrance.  Hence, there is delay in starting the said projects.  OPs in their version stated that now it is ready to execute the registered sale deed on receipt of the balance considereation in the porject of Max Orchid and Max Marvel.  In these projects also there is no developmental activities which can be seen on going through the contents of the complaint.  As booking of the said sites as adviced by the OPs were not materialized, hence, the complainant has no other go except to sought for refund, in this context he has made several correspondence which were went in vain.  Since OPs have specifically admitted in para 3 of their version that they have received the advance amount of Rs.8,07,000/-.  Now the question that crops up for our consideration is, for which of the reliefs, the complainant entitled for.  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. The option is left open to him for enforcement of the agreement of sale directing the OPs for registration of the sale deed if not sought for refund of money. 

        11. In the llight of the decision cited supra, we are of the considered view that as per the instance or advice of the OPs, site booked by the complainant was shifted from one project to another project, finally as per the advice of the OPs site in Max Abhudaya was also not also materialized.  In this context, we are of the opinion that the complainant is entitled for the refund of the said amount with 10% interest in the form of compensation with litigation cost of Rs.5,000/- as this Forum has ordered in the similar type of cases.  Accordingly, we come to conclusion that the complainant has proved the deficiency of service as well as unfair trade practice adopted by the Ops.  The another question that crops for our consideration is to whom the liability to refund the  said amount is to be fastened.  Since the OP.1 is the Chairman and Managing Director, OP No.2 is Director who is the wife of the Managing Director of OP No.1, OP No.3 is the authorized signatory and OP No.4 is the Deputy General Manager (Marketing) hence, all the OPs are jointly and severally liable to refund the said amount with interest and cost.  But, liability to pay the said amount is to fastened to OP Nos.1 and 2. Accordingly, Point No.1 is answered in the Affirmative.

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

ORDER

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act, 1986 is allowed. 
2. OP Nos.1 to 4 are jointly and severally directed to refund an amount of Rs.8,07,000/- with interest at 10% p.a. in the form of compensation with litigation cost of Rs.5,000/- to the complainant.
3. To refund the above said amount, the liability is fastened on OP Nos.1 and 2 as they being the Chairman, Managing Director and Director of the said project respectively. 
4. OPs shall comply this order within six weeks from the date of receipt of the order.
5. 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 14^th day of October, 2020).

N.Srinath filed affidavit evidence on behalf of complainant as P.W.1 and additional affidavit also filed by P.W.1.

1. List of documents produced by the complainant are as follows:-

3. List of documents produced by the OPs are as follows:-