Date of Filing:11/08/2017
Date of Order:28/04/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated:28th DAY OF APRIL 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.2276/2017
COMPLAINANT/S | | |
| 1 | Smt.T.D. Suparna, W/o Sri K.S. Venkatesh, Aged about 47 years, Residing at No.585, 3rd Main, Sadashivanagar, Bengaluru 560 080. (Sri M.S adv. for complainant) |
V/s
OPPOSITE PARTY/IES | | |
| 1 | M/s MaxWorth Realty India Limited, Head Office No.22/1, Railway Parallel Road, Nehru Nagar, Bengalur-560 020. Duly Rep. by its Managing Director Mr.K.Kesava. |
| 2 | K.Kesava, Managing Director, Corporate office at : KMP House, No.12/2, Yamuna Bai Road, Madhavanagar, Bengaluru 560 001. (Sri KDK Adv for O.Ps) |
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 direct the O.Ps to pay a sum of Rs.1,00,000/- along with interest at the rate of 18% per annum from the date of booking till disposal of this complaint and Rs.1,00,000/- towards compensation and to pass such other order as this Forum deems fit.
2. The brief facts of the complainant’s case is that, she agreed to purchase plot No.481, measuring 30X40 east facing at Rs.640/- per Square feet at Max Orchards III and paid Rs.1,00,000/- by way of two (2) cheques bearing No.097560 dated 4.03.2013 drawn on Axis Bank Ltd for Rs.50,000/- and another cheque bearing No.158253 dated 16.10.2013 drawn on State Bank of India and the said chequs were duly encashed by the O.Ps. The said plot was booked in the year 2013 and the O.P has agreed to execute sale agreement within 20 days from the date of booking the plot. O.P failed to handover the possession of the site agreed. Instead of fulfilling the promise the O.P did not handover the same. Correspondences were made with the O.P. Inspite of demand of the refund of the amount, the O.P has not refunded the same. Further on 24.02.2017 complainant caused a legal notice demanding the advance amount of Rs.1,00,000/- along with appropriate interest with damages to the O.Ps. Inspite of it, O.P did not refund the same and hence there is a deficiency in service as well as unfair trade practice. Hence this complaint.
3. Upon service of notice O.Ps appeared before the Forum and filed its version denying averments and contents of complaint.
4. It is further contended in the version that complaint is not maintainable either in law or on facts liable to be dismissed in lemine. The complaint is also barred by limitation. O.P admitted the receipt of the amount of Rs.1,00,000/- towards part consideration of the cost of the site i.e. Rs.7,68,000/-. It is the case of the O.p that since the land on which the site to be formed required change of land use he (O.P) offered alternate site in another project developed by him to which the complainant did not responded, he was ready to refund the amount to the complainant by deducting 15% out of it due to breach of terms and conditions. Though he had applied for change of land user the authorities delayed the same and hence there was delay in formation of the layout. Though there was delay there is the increase in the value of the site and the complainant would have got the enhanced amount had he not cancelled the booking order. This complaint is a false complaint made in order to gain money. The complainant has paid only a meager amount and hence has not ready and willing to purchase the plot as he has no money with him and hence prays to dismiss the complaint by directing him to return the balance of amount by deducting 15% out of Rs.1,00,000/- paid by the complainant.
5. In order to prove the case, the complainant filed her affidavit evidence. Perused the documents produced by the complainant heard her counsel. O.P has not adduced oral or documentary evidence.
6. On the basis of the above pleadings and evidence of the parties, the following points arise for our consideration:-
1) Whether the complainant has proved
deficiency in service on the part of the
Opposite Parties?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
7. 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:-
8. The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. The same has been objected by the O.P contending that she is not a consumer and not entitle for any amount since there is no deficiency in service on the part of the O.P and that there is no unfair trade practice. To substantiate the same, O.P has not adduce any evidence orally or with documents.
9. Complainant has produced the three (3) receipts issued by O.P of which two were issued on 28.2.2013 and 17.10.2013 wherein O.P has acknowledged the receipt of Rs.50,000/-. She has also produced ledger account particulars from 10.10.2013 to 20.10.2013 in respect of site No.481 of MAX ORCHARDS III. From this can easily be inferred that a sum of Rs.1,00,000/- towards the site has been paid by the complainant and received by O.P. From this it becomes clear that, the O.P has agreed to refund the amount. This has been mentioned in the version itself. In the version he wants to retain 15% out of the said amount due to the non-adherence of the conditions of the agreement.
10. On perusing the version filed by the O.P. It becomes clear that, there was inordinate delay in forming the site since the said land was to be converted by the concerned authorities for residential purpose. Letter has also been written and notice sent to the O.P by the complainant. When there is breach of terms and conditions on the part of the O.P itself it is not fair enough for the O.P to deduct 15% out of Rs.1,00,000/- paid by the complainant towards the advance amount. Hence complainant is entitle for Rs.1,00,000/-.
11. The other contention raised by the O.P in its version is that complaint is not maintainable before this Forum and complainant has to seek redressal in the Civil Court. In this regard Section 3 of C.P. Act comes to the help of the complainant. The right to invoke the provisions of Consumer Protection Act is in addition to the already available rights under various enactments. Hence the contention of the O.P cannot be acceded too. Hence we answer Point No.1 in the Affirmative.
ON POINT No.2:
12. The complainant has claimed interest at the rate 18% per annum on Rs.1,00,000/- from the date of complaint. In view of the O.P admitting his liability to refund the same we are of the opinion that the interest claimed by the complainant is on the higher side and it will be just and proper if interest at the rate of 12% per annum is ordered to be paid from the date of complaint till the payment of full amount.
13. Due to inaction of the O.P in not returning the amount the complainant made to suffer physical strain, mental agony and financial loss which we quantify at Rs.15,000/- besides ordering him to pay a sum of Rs.5,000/- towards the legal expenses. Hence we answer Point No:2 partly in the affirmative and 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 a sum of Rs.1,00,000/- along with interest at the rate of 12% per annum from the date of complaint i.e. 11.08.2017 till payment of full amount.
3. Further O.P is also directed to pay Rs.15,000/- 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 28th Day of April 2018)
MEMBER PRESIDENT
*Rak
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 T.D.Suparna – Complainant.
Copies of Documents produced on behalf of Complainant/s:
Doc.No.1 to 3: Copy of the receipts (3 in Nos.)
Doc.No.4 & 5: Copy of the Cheques (2 in Nos.)
Doc.No.6: Copy of the Bank statement.
Doc.No.7: Copy of letter .
Doc.No.8: Copy of the legal notice.
Doc.No.9: Copy of Postal receipts.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1 : - Nil-
Copies of Documents produced on behalf of Opposite Party/s
- Nil-
MEMBER PRESIDENT
