Date of Filing: 24/04/2017

Date of Order: 11/06/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:11^TH DAY OF JUNE 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.811/2017

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT:

1.  This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party (hereinafter referred to as O.P) alleging deficiency in service and to direct O.P to refund Rs.1,25,000/- with interest from the date of payment till realization at the rate of 24% per annum and Rs.50,000/-towards travel expenses, mental agony and physical stress and strain suffered by the complainant and to pass such other order as this Forum deems fit.

2.     The brief facts of the complainant case are that, O.P is a developer and developed residential site under the name of “MAX SINDHUR and MAX SADHANA”. The complainant wanted to purchase plot No.77 measuring 1200 Sq.feet in Max Sindur Project and Plot No.442 measuring 675 Sq.feet in Max Sadana Project for total Sale consideration of Rs.5,40,000/- and Rs.8,10,000/-. The complainant has paid Rs.1,25,000/- by way of cheque bearing Nos.230681 and 230682 on 31.03.2012  and 15.04.2012 both drawn on SBI Gokak Branch, Belgaum District for  which O.P issued receipts towards part consideration of the said plot, Where in, it was agreed to handover the possession of the schedule property within in stipulated time. O.P for one reason or the other, postponed the time with a view to drag on the formation and handing over the possession of the same.  They have duped for Rs.5,40,000/-  and Rs.8,10,000/-. Inspite of notice, O.P. has not returned the amount and handed over the possession of the plot. Hence this complaint.

3.   Upon service of notice, O.P appeared before the Forum and filed its version contending that the complaint is not maintainable, it is vexatious and frivolous to be dismissed.  The OP submits that the complainant is not a consumer as stated under the U/s 2 (d)(I) (II)  of C.P. act and also has not availed service for eking lively hood.  Here the complainant booked two sites one in MAX SINDHUR bearing plot No.77 for consideration of Rs.8,10,000/- and another  site in MAX SADHANA bearing plot No.442 for total cost of Rs.13,50,000/-.  The complainant has paid only Rs.1,25,000/- to register the site in his name.   As per the terms and conditions of booking form, complainant has not paid 30% of sale consideration, So complainant has breached the contract.   Further the Op taken contention that the complainant has planned to make profit by reselling the same. Hence the service availed by him is for commercial propose. On this ground only complaint is liable to dismissed. Further OP states that he is ready and willing to allot sites to the complainant if the amount is paid and execute the agreement for sale. The complainants have not come forward to do their part of contract and simply they are making wrong allegation against it.  There is no deficiency in service on its part. The allegations made against it are all baseless and hence O.P prayed to dismiss the complaint.

4.   In order to prove the respective case, the complainant and O.Ps have filed affidavit evidence reiterating the contents of the complaint and their version respectively.  Perused the documents produced by the complainant and O.P. Heard the arguments.

5.      On the basis of the above pleadings and evidence of the complainant and O.P, the following points arise for our consideration:-

                        1)   Whether the complainant has proved

      deficiency in service on the part of the

                      Opposite Party?

2)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT 1:         Affirmative.

POINT 2:         Partly in the affirmative  

                                as per the final order.

REASONS

ON POINT No.1:-

7.   The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint.  Besides he has also produced booking forms, receipts, copy of the legal notice and acknowledgement issued by the O.P for having received the legal notice. Wherein it has agreed to sell the plot at the rate of Rs.450/- and Rs.675/- per sq. feet and receiving Rs.1,25,000/- for two sites on different dates as advance sale consideration. It is also clear from of the version filed by the Op that the Op has not identified the land for the purpose of formation of layout and without doing so he collected money from the complainant.  Further the burden is casted  on the Op to prove that the said sites were booked for making profit. OP has not placed any documentary proof in this regard that booking of two flats is for commercial propose. Hence the allegation made by the OP has no substance. Therefore the allegation of commercial transaction cannot be accepted. The following decisions relied on by the Op do not help to Op.

1. I ( 2016) CPJ 219 (NC)
2. II (2016) CPJ 626 (NC)
3. I (2016) CPJ 377 (NC)
4. IV (2013) CPJ 221 (NC)
5. III (2012) CPJ 315 (NC)
6. Vedkumari and another V/s Omaxe Buildhome Pvt. Ltd., decided 05.03.2014.

8.     It becomes clear that it O.P. did not proceed to complete the project “MAX SINDHUR and MAX SADHANA” due to difference and disputes with its Vendor and hence it could not execute the sale deed.  In view of this, there is clear deficiency in the service.  Hence we answer Point No.1 in the affirmative.

ON POINT No.1& 2:-

9.   In view of our answer to Point No.1 in the affirmative, there is deficiency in service on the part of O.P and hence it is liable to refund the amount which it has received from the complainant i.e. Rs.1,25,000/- along with interest at 12% per annum. Due to inaction of the O.P in not returning the amount, the complainant has suffered physical strain, mental agony and financial loss which we quantify at Rs.10,000/-. The Act of the O.P made the complainant to file this complaint by engaging advocate by paying his profession fee and also spent money in attending the Forums hearing on each and every day.  We are of the opinion that if a sum of Rs.5,000/- if awarded towards litigation expenses ends of justice will be met.  Hence we answer Point No.2 partly in the affirmative and we proceed to pass the following:-

ORDER

1. The complaint is partly allowed with cost.

2. The OP i.e. Max Worth Reality India Limited Represented by its Director/Authorized Signatory is hereby directed to pay to the complainant a sum of Rs.1,25,000/- along with interest at the rate of 12% per annum  on the above sum from 31.03.2012 till payment of full amount.

3. Further O.P is also directed to pay Rs.10,000/- towards damages and Rs.5,000/- towards cost of the litigation expenses to the complainant.

4.  The O.P. is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 11^th of June 2018) s

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1 :Sri. Anand G.Gondi– Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc:No.1:            Copy of the receipts.

Doc.No.2:            Copy of the Booking forms.

Doc.No.3:            Copy of the Legal Notice.

 Doc.No.4:             Copies of the postal receipt and Postal

                           Acknowledgment

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Mr. Roopesh Sulegai.

Copies of Documents produced on behalf of Opposite Party/s:

-Nil-

MEMBER                               PRESIDENT