Karnataka

Bangalore 4th Additional

CC/881/2019

Sri M Balashanmugam, - Complainant(s)

Versus

M/s Guruva Properties Pvt Ltd., - Opp.Party(s)

Sri.Lakshmiprasad Reddy

15 Oct 2019

ORDER

Complaint Filed on:31.05.2019

Disposed On:15.10.2019

                                                                              

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

    DATED THIS THE 15^th OCTOBER OF 2019

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

Complaint No.881/2019

 

 

COMPLAINANTs	Sri.M.Balashanmugam, S/o S.Muthusamy, Aged about 71 years, R/at No.117, 1st Floor, 8th Main, M.S Ramaiah – Venkatamma Colony, Mathikere, Bengaluru – 560054.   Advocate – Sri.Lakshmiprasad Reddy.       V/s
OPPOSITE PARTy	M/s. Guruva Properties Pvt Ltd., No.435, 2nd Floor, 2nd Main Road, East of NGEF Layout, Kasturinagar, Bengaluru – 560043.   Represented by its Managing Director, D.M Naveen Kumar

                                       

 

O R D E R

 

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

 

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after called as OP), under section 12 of the Consumer Protection Act, 1986.  The Complainant prays to direct the OP to refund advance amount of Rs.1,00,000/- along with interest @ 18% p.a from the date of payment till realization, to pay compensation of Rs.2,00,000/- for the mental hardship, agony and harassment caused to the complainant, to award cost of the proceedings and pass such other orders.

 

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

 

The Complainant submitted that, OP has been forming a layout for residential sites in survey No.45 and 48/2 of Chikkabettahalli Village, Yelahanka Hobli, Bengaluru North Taluk and OP represented that he has right, title and interest to deal with the sites formed in the above said lands.  In this regard OP has given an advertisement through hoardings and brochure to the general public about the sale of the sites formed by him in the said lands.  After coming to know the same the complainant has approached the OP for enquiry.  The OP has issued brochure to the complainant in the name and style called ‘Guruva Properties – Brundavana”.  The complainant further submitted that he was interested to purchase the site No.19 in the layout formed by OP.  After negotiations between the complainant and OP, the complainant has agreed to purchase the site No.19 for total consideration amount of Rs.34,20,000/-.  OP insisted the complainant to pay the token advance amount of Rs.1,00,000/-, so as to enable him to deliver the title deeds pertaining to the said site.  The complainant has paid a sum of Rs.1,00,000/- by way of cheque bearing No.132053 dated 06.06.2016, drawn on HDFC Bank, Malleshwaram Branch, Bengaluru in favour of OP.  OP acknowledged the same issued the receipt No.311 dated 06.06.2016 to the complainant and confirmed the booking of site No.19 in favour of complainant’s daughter.

 

Complainant further submitted that, thereafter the OP had insisted the complainant to enter into an agreement of sale to purchase the said site by paying an advance sale consideration amount of Rs.10,00,000/- and also sent a draft of a sale agreement, after going through the sale agreement which discloses that the OP is nothing to do with the said site No.10 formed in the said lands.  Thus the complainant has insisted to the OP to execute the sale agreement or sale deed through the original land owners.  However, OP could not secure the presence of the original land owners for the said purpose and thus the complainant had no option to seek the refund of the advance amount of Rs.1,00,000/- paid by him.  Since the OP has not come forward to refund the amount paid by the complainant.  Thereafter the complainant sent a mail dated 28.07.2016 by expressing his intention to cancel the booking of the said site and to refund the advance amount.

 

The complainant further submitted that, since the OP does not derive any right, title and interest over the lands and he has no authority to deal the site No.19.  In this regard the complainant has approached the OP on several occasions and demanded for the refund of the amount of Rs.1,00,000/-, but OP has postponing to refund the amount by giving one or the other reasons best known to him.  Further OP went on making false promise and assurance to the complainant to refund the amount all these years but the OP has failed to refund the same.

 

Complainant further submitted that, after prolong all these years to refund the amount to the complainant, the complainant has came to know the fraudulent intention of the OP to cheat the complainant and knock off the hard earned money of the complainant.  Having no other alternative remedy the complainant caused legal notice dated 15.03.2019 calling upon the OP to refund the advance amount of Rs.1,00,000/- along with interest @ 18% within one week from the date of service of notice.  Neither the OP replied to the notice nor refunded the advance amount.  Hence the complainant approached this Forum.

 

3. After registration of the complaint, notice was issued to OP.  Inspite of service of notice, OP remained absent without sufficient reason and cause.  Hence OP called out as absent and has been placed exparte.

 

4. In the course of enquiry into the complaint, the complainant has filed affidavit evidence reproducing what he has stated in his complaint.  The Complainant has produced documents along with complaint.  We have heard the arguments of the Complainant side and we have gone through the oral and documentary evidence of the Complainant scrupulously. 

 

5. Based on the above materials, the following points arise for our consideration;  

 

1. Whether the Complainant has proved that there is deficiency in service on the part of the OP, if so, whether he is entitled for the relief sought for?

 

2.  What order?

 

6. Our findings on the above points are as under:

 

Point No.1:  Partly in the affirmative

                 Point No.2:  As per the order below

 

REASONS

 

 

7. Point No.1: On making careful scrutiny of the case of the complainant and on the background of the documentary evidence, it is made crystal clear that, complainant has booked site No.19, measuring 1200 square feet in OP project called “Guruva Properties-Brundavana”.  The total sale consideration of the site was Rs.34,20,000/- as per Ex-A3.  Complainant has paid advance amount of Rs.1,00,000/- on 06.06.2016 through cheque bearing No.132053 drawn on HDFC Bank, Malleshwaram Branch, Bengaluru.  In this regard OP has issued a receipt dated 06.06.2016/Ex-A2.  The complainant alleges that the OP had insisted the complainant to enter into an agreement of sale to purchase the said site by paying an advance sale consideration amount of Rs.10,00,000/-.  After going through the sale agreement which discloses that the OP is nothing to do with the said site No.19 formed in the said lands.  Hence complainant insisted the OP execute the sale agreement or sale deed through the original land owners.  OP has failed to secure the presence of the original land owners for sale agreement or sale deed.  Therefore complainant decided to sought for refund the advance amount of Rs.1,00,000/-.  OP has not come forward to refund the advance amount and postponing one or the other reason.  OP went on making false promise and assurance to the complainant to refund the amount since 2016.       

 

8. To rebut the contention of the complainant, the OP has not appeared in the instant case though the notice was duly served and thereby the OP remained absent in the sense the OP either admits the averments of the complainant in toto or they have nothing to say contrary to the complainant’s averments.  If the matter is viewed on this line, it proves that the OP has agreed the same impliedly.  In this regard, the decision reported in 2018(1) CPR 325 (NC) in the case of Kotak Mahindra Old Mutual Life Insurance Ltd., vs. Dr.Nishi Gupta, wherein it is held that, “non-filing of the written version amounts to admission of allegations made by the Complainant in the consumer complaint”. 

 

9. We find there is considerable force in the contention taken by the Complainant in the light of the decision, which we come across, reported in 2018 (1) CPR 93 (NC) in the case of Girwar Singh Jakhar and Anr. vs. Earth Infrastructures ltd., wherein it is held that:

 

Consumer Protection Act, 1986 – Sec.21 – Real estate – buyers agreement for residential flat – denial of possession – Op did not file written version despite service and right of Op to file written version therefore was closed – since possession of flats has not been offered to Complainants and construction of flats is not complete, they are entitled to refund of principal amount paid by them to Op along with appropriate compensation in form of interest – no specific evidence has been led by Complainants to prove their actual loss on account of failure of Op to deliver possession of flats allotted to them – considering all facts and circumstances of case including recent downward trends in rates of interest and value of immovable properties, complaint should be awarded compensation in form of 10% simple interest from the date of each payment made by them to Op till the date on which entire principal amount along with compensation in form of interest is actually refunded to them.

 

 

 

 

 

 

 

 

 

 

 

10. In the light of the decision cited supra the amount so far paid by the complainant to the tune of Rs.1,00,000/- is ordered to refund to the Complainant with interest at the rate of 10% p.a from the date of payment by way of compensation, we hope ends of justice would met sufficiently.  Further, we also propose to fix litigation cost of Rs.5,000/-.  Accordingly, we answered the point no.1 in the affirmative.

 

11. Point no.2: In the result, for the foregoing reasons, we proceed to pass the following order.

 

ORDER

 

1. The complaint filed by the Complainant is allowed in part.

 

2) OP is directed to refund a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the complainant together with interest at the rate of 10% p.a. from the date of payment till the date of realization.  Further OP is directed to pay litigation cost of Rs.5,000/-.

   

 3) This order is to be complied by the OP within 45 days from the receipt of this order.

 

          4) Supply free copy of this order to both parties. 

 

 

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 15^th day of October 2019)

   

 

 

 

(ROOPA.N.R)     MEMBER

(PRATHIBHA.R.K)  PRESIDENT

 

 

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

Sri.Balashanmugam

 

 

Copies of Documents produced on behalf of Complainant/s:

Ex-A1	Copy of brochure
Ex-A2	Copy of receipt dated 06.06.2016
Ex-A3	Copy of booking form
Ex-A4	Copy of legal notice
Ex-A5	Postal receipts 2 in numbers.
Ex-A6	Postal tract reports.

 

 

 

(ROOPA.N.R)     MEMBER

(PRATHIBHA.R.K)  PRESIDENT

 

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