CC No.1543.2015

Filed on 25.08.2015

Disposed on.30.06.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 30^th DAY OF JUNE 2017

CONSUMER COMPLAINT NO.1543/2015

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                              V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 25.08.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to refund an amount of Rs.2,60,000/- together with interest at 24% p.a., to pay compensation of Rs.1,00,000/- with interest at 24% p.a., to pay additional sum of Rs.1,50,000/- and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Opposite Party being in the business of Real Estate, Property Development, Construction etc, have appraised the Complainant, that they have developed properties in and around Bangalore and formed a residential layout under the name and style “MAX KARANTH NEST”, in the properties located at Kuguru Village, Sarjapura Hobli of Anekal Taluk, Bangalore Rural District by obtaining necessary sanctions and permissions from the concerned authorities.  During the Month of September 2012, some of the marketing executives of the Opposite Party has contacted the Complainant and appraised him about the details of the above project and convinced him to purchase residential sites bearing Plot Nos.64, 65, 66 and 67 in the said project.  The Complainant agreed to purchase the above said Plots and on 09.10.2012 the Complainant has paid the booking amount of Rs.3,60,000/-being the part of the agreed sale consideration by way of cheque bearing No.227423 dt.15.10.2012. Subsequent to the payment of the aforementioned amounts, he has requested the Opposite Party to furnish all the relevant documents, like title deeds, revenue documents, conversion orders and layout plans approved by the concerned authorities for enabling him to complete the transaction at the earliest, even after his repeated requests and demands for the reasons better known to the Opposite Party, they have prolonged the process of the furnishing the documents on the ground that, the documents can be furnished only after execution of the necessary agreements in the name of prospective buyers.  In general terms and conditions of the booking form issued by the Opposite Party, the Opposite Party is liable and duty bound to execute the sale agreement in favour of the Complainant with in twenty days from the date of booking, but for the reasons better known to the Opposite Party, the Opposite Party has failed to execute the sale agreement in the name of the Complainant.   When he came to know that, the Opposite Party is stagnant in executing the agreement of sale, he left with no alternative visited the office of the Opposite Party for regular follow-up from April 2014.  It was brought to the notice of the Complainant that by the Opposite Party, that the project was stopped for some reasons.  The Opposite Party has prolonged the process of refund, keeping one or the other reasons ahead and has made the Complainant to scuttle to their office time and again after repeated requests and demands, in order to partly refund the amount collected from the Complainant, the Opposite Party has issued a cheque bearing No.191711 dt.30.03.2015 drawn on Canara Bank, Bangalore K.P.West Branch, Bangalore for a sum of Rs.1,00,000/- on the assurance that the same will be honoured on presentation.  When the Complainant presented the said cheque for collection through his bankers ICICI Bank RPC Limited, to his shock and surprise, the said cheque was returned unpaid with a shara “Account Blocked” vide the banker’s memo dt.08.05.2015.  The Opposite Party instead of transferring the entire amount to the Bank Account of the Complainant has issued two demand drafts for the same of Rs.50,000/- each to the Complainant on 20.04.2015 and 30.04.2015 and assured to transfer the further amount within a week from the above dates.    Even after his repeated requests and demands, the Opposite Party has failed to refund the balance amount to the Complainant.  The Opposite Party has requested the Complainant to shift his booking to the other project of the Opposite Party called “Max Nanda Gokula’ as the plots in the said project are ready for registration and the same will be registered within ten days or if the plots are not registered they will refund the amount along with interest immediately,  the Complainant who was invested his hard earned money left with other surrogate has agreed and shifted his booking to plot No.100 in the project called “Max Nanda Gokula”.   It is already 3 years elapsed from the date of Booking of the plots, whenever the Complainant tries to contact the Opposite Party or meet their personals; the Opposite Party has been evading and escaping from the sight of the Complainant.  Since last 3 years all his attempts to contact the responsible persons and recovering the amount is vent in vain, as each and every time the Opposite Party has assured to refund the amount with applicable interest, but failed to keep up their words.   The Complainant issued Legal Notice dt.23.07.2015 calling upon the Opposite Party to refund the amount collected from the Complainant along with the interest at the rate of 24% p.a from the date of payment.  The Opposite Party has failed to comply with the demands made in the said notice.  Even after knowing the fact of blocking of the account, giving false assurances on refund and making the Complainant to wait in their office for entire day for many times in last 2 ½ years, amounts to unfair trade practice and deficiency of service on the part of the Opposite Party.  Hence, this complaint. 

3.  In response to the notice, the Opposite Party put their appearance through their Counsel and filed their version.  In the version pleaded that the complaint is not a ‘Consumer’ as per Section 2(vi)(d)(i)(ii) is very clear service availed for his or her livelihood for personal use only here in this Complainant has booked 4 sites; one site is enough to build a house live happily.  But he is planning to invested money on land or sites to get commercial benefit/s in future by re-selling it.  Any service availed for commercial purpose as per Consumer Act she is not a Consumer hence on this ground this complaint is liable to be dismissed.  The Complainant has booked plot Nos.64,65, 66 and 67 in the said project measuring East to West 30 feet and North to South 50 Feet totally each sites measuring 1500 Sq.ft at the rate of Rs.600/- per sq.ft and total of 4 sites Rs.36,00,000/- it is divided as Rs.90,000/- for each site.  Again he had given a written letter to the Opposite Party to refund the amount that he is not interest to purchase these sites he cancelled the booking plots on December 2014.  Again he booked the site N.100 measuring east to west 30 feet and north to south 40 feet and asked the Opposite Party to adjust the amount of Rs.2,60,000/- which had been paid to the sites No.66,67,78,79.  Again he sent the email on 10.10.2012 requesting the Opposite Party to clubbed the all five sites booked, make it single plot it comes to East to West 60 feet North to South 100 feet totally it comes to measuring 6000 Sq.ft.  It’s cost of this plot is Rs.36,00,000/-.  As per the booking form he has to deposit the 30% of the plot amount of RS.10,80,000/- but he paid only Rs.2,60,000/- failed to comply the booking form terms and conditions is not ready to arrange money he was playing with Opposite Party shifting the sites one or other reason.   As per booking form terms and conditions within 20 days have to pay 30% of the total sale consideration and executing the sale agreement.  That is Rs.10,80,000/-, in this case the Complainant failure the compliance the booking form terms and conditions.  The Complainant has given letter to Opposite Party seeking refund of booking amount.  As per the booking form terms and conditions refund of booking amount will be done after 30 working days from date of cancellation and cancellation without a valid reason 15% of booking amount will be deducted towards service & transport charges.  As per booking form terms and conditions in case of cancellation of booking by purchaser max will not pay any interest.  Here Complainant failures the compliance the booking form terms and conditions.  The Opposite Party many times informed to Complainant.  Instead of the same the Opposite Party has offered to other sites in the other projects, in this case the Complainant has not agreed for the same, hence the claim of the Complainant is baseless.  As per the booking form terms and conditions, the Complainant ought to pay 30% of the entire sale consideration but not paid, Complainant has breached the contract and not willing to purchase the sites now making allegation against the Opposite Party is untenable.   The Complainant never approached the Opposite Party to allot the site and ready and willing to purchases as mentioned in the complaint if amount was paid definitely the Opposite Party allotted the sites and executed the sale agreement as agreed by the both side at the time of booking the sites, Complainant has suppressed the true facts.  No deficiency of service from Opposite Party side in this juncture would have executed the agreement for sale if amount was paid,  Complainant have no right to make wrong allegations against Opposite Party being defaulter Opposite Party was ready to sale the site all development works over but Complainant was not paid the balance amount hence sites were not allotted, now the Opposite Party is ready to pay the principle amount after deducting 15% in the advance amount towards travel and legal expenses as per Booking Form Condition No.12.  The Opposite Party is not making delay in projects, question of payment of compensation and damages or interest does not arise, and hence the complaint is liable to be rejected.  The Complainant was not ready to purchase he failed to arrange money in time now trying to act smartly by making wrong allegations against Opposite Party. It is very clear deficiency of service not on Opposite Party side it is on the Complainant’s side. Hence prays to dismiss the complaint.
4. The Complainant, Sri.Umesha K.C filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, the affidavit of one Sri.Roopessh Sulegai has been filed.   Heard the arguments of both parties.

5.      The points that arise for consideration are:-

1. Whether the Complainant is a ‘Consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 ?
2. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
3. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):-  Affirmative

                POINT (2):-  Affirmative

POINT (2):- As per the final Order

REASONS

7. POINT NO.1:- The learned Counsel for the Opposite Party argued that the Complainant is not a ‘Consumer’ as defined under Section 2(i)(d) of the Consumer Protection Act, 1986. Since it is clear by issuing the averments made in the complaint that the Complainant has booked 4 sites one site is enough to build a house.  But he is planning to invested money on land or sites to get commercial benefits in future by re-selling.  Any service availed for commercial purpose as per Consumer Act is not a ‘Consumer’.  Hence, the Complainant is not a ‘Consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.

8. In support of his argument, he relied upon a decision in IV (2013) CPJ 221(NC) between Sanjay Bansal V/s Vipul Limited and another and unreported decision between Sunil Gupta V/s Today Homes & Infrastructure (Pvt) Ltd, unreported decision by the National Consumer Disputers Redressal Commission in Consumer Complaint No.6/2014, unreported decision Ved Kumari & another V/s Omaxe Buildhome Private Limited. 

9. On the other hand, the learned Counsel for the Complainant argued that the Complainant is a ‘Consumer’ as defined under Section 2(1)(d) of the Act.  Nodoubt the Complainant has booked 4 sites but that itself is not proper to argued that the Complainant is not a ‘Consumer and the Complainant has booked 4 sites in order to for commercial purpose in future and the Complainant reselling the sites to get benefits, therefore it is not proper to believe that the Complainant has booked the sites.  On the other hand, the Complainant is not a ‘Consumer’ as defined Under Section 2(1)(d) of the Act.

10. With this argument and as seen from the record, nodoubt the Complainant has booked 4 sites, mere booking of 4 sites itself cannot be acceptable as it is for commercial purpose as argument addressed by the Opposite Party, merely Complainant has booked 4 sites that will not for the purpose to get benefit by reselling the sites, thereby it not amounts to commercial purpose.  The Complainant may for his future purpose booked 4 sites, absolutely there is no material to believe in the argument of the learned Counsel for the Opposite Party that the Complainant has booked 4 sites in order to reselling the sites and to get commercial benefit.  Therefore, it is not proper to accept the argument put forth by the learned Counsel for the Opposite Party.  On perusal of these decisions referred by the learned Counsel for the Opposite Party, the law laid down in the said decisions are not applicable to the facts of this case.  On the other hand, the Complainant is a ‘Consumer’ as defined under Section 2(1)(d) of the Act.  Hence, this point is held in the Affirmative.   

11. POINT NO.2:- As looking into the allegations made in the complaint and also version filed by the Opposite Party, it is not in dispute that the Complainant on 09.10.2012 by paying advance amount of Rs.3,60,000/- agreed to purchase flats bearing Nos.64, 65, 66 and 67 in “MAX Karanth Nest” Project of the Opposite Party.  Further to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the Booking Form it is dt.09.10.2012.  By looking into this, it is clear that the Complainant has booked 4 plots with Opposite Party measuring 30 X 50 Feet each at the rate of Rs.600/- per sq.ft total cost of the flat at Rs.36,00,000/- and he paid the advance amount of Rs.3,60,000/- and also produced receipt issued by the Opposite Party on 09.10.2012 for receiving the advance amount of Rs.3,60,000/- and also produced the copy of the cheque dt.15.10.2012.  Under this cheque, the Complainant has paid advance amount of Rs.3,60,000/- in favour of the Opposite Party.  This evidence of the Complainant remains unchallenged.  Therefore, it is proper to accept the contention of the Complainant that the Complainant has booked 4 sites measuring 30 X 50 Feet each at the rate of 600 per sq.ft total cost of Rs.36,00,000/- on 09.10.2012 and paid advance amount of Rs.3,60,000/-.

12.  It is further case of the Complainant,  subsequent to the payment of the advance amount, he has requested the Opposite Party to furnish all the relevant documents, like title deeds, revenue documents, conversion orders and layout plans approved by the concerned authorities for enabling him to complete the transaction at the earliest, even after his repeated requests and demands for the reasons better known to the Opposite Party, they have prolonged the process of the furnishing the documents on the ground that, the documents can be furnished only after execution of the necessary agreements.   In general terms and conditions of the booking form issued by the Opposite Party, the Opposite Party is liable and duty bound to execute the sale agreement in favour of the Complainant within 20 days from the date of booking, but the Opposite Party failed to execute the sale agreement in the name of the Complainant.   The Opposite Party is stagnant in executing the agreement of sale, the Complainant has no alternative visited the office of the Opposite Party for regular follow-up from April 2014 and it was brought to the notice of the Complainant that the project was stopped for some reasons.  The Complainant requested the Opposite Party to refund the amount collected from the Complainant, along with applicable interest.   On repeated requests and demands made by the Complainant, the Opposite Party has issued a cheque bearing No.191711 dt.30.03.2015 drawn on Canara Bank, for a sum of Rs.1,00,000/-.  When the Complainant presented the said cheque for collection, the said cheque was returned unpaid with a Shara “Account Blocked”.  The Opposite Party instead of transferring the entire amount to the Bank Account of the Complainant, he has issued two demand drafts for a sum of Rs.50,000/- each to the Complainant on 20.04.2015 and 30.04.2015 and assured to transfer the further amount within a week.   The Opposite Party has requested the Complainant to shift his booking to the other project of the Opposite Party called “Max Nanda Gokula’ as the plots in the said project are ready for registration and the same will be registered within ten days or if the plots are not registered, they will refund the amount along with interest immediately.  Even after his shifting to the other project of the Opposite Party, the Opposite Party has not furnished any documents to the Complainant nor executed any agreements are deeds in the name of the Complainant. After lapse of 3 years from the date of Booking of the plots, whenever the Complainants tried to contact Opposite Party or meet their personals, the Opposite Party has been evading and escaping from the sight of the Complainant.  Since last 3 years all his attempts to contact the responsible persons and recovering the amount is vent in vain, the Opposite Party has assured to refund the amount with applicable interest, but failed to keep up their words.   In order to substantiate this, the Complainant in his sworn testimony, he has reiterated the same.  This evidence of the Complainant remains unchallenged.  On the other hand, as looking into the Booking Form terms and conditions, it is clear that the sale agreement executed within 20 days from the date of booking.  As per the terms and conditions of the booking form, the Opposite Party failed to execute the agreement of sale in favour of the Complainant, in spite of receiving the advance amount after lapse of 3 years.   For that reason, the Complainant demanded for refund of advance amount and as per the demand made by the Complainant the Opposite Party issued a cheque for a sum of Rs.1,00,000/-.  When the Complainant presented the said cheque, the said cheque was dishonoured with a Shara as “Account Blocked”.   This is also clear, by looking into the copy of the cheque dt.30.03.2015 it is issued by the Opposite Party infavour of the Complainant the cheque bearing No.191711 and the Complainant also requested the Opposite Party to shift his booking amount to the another project of the Opposite Party i.e., “Max Nanda Gokula’ by addressing a letter.  In spite of his request for transfer of the booking amount to the another project i.e., “Max Nanda Gokula’, the Opposite Party fails to execute the sale agreement in favour of the Complainant.  For that reason, the Complainant demanded for request of the advance amount by sending letter dt.13.02.2015. The Opposite Party responded to this letter and promised to refund the advance amount of Rs.3,60,000/- on or before 27.02.2015.  In spite of this, the Opposite Party fails to refund the advance amount, for that reason, again the Opposite Party addressed a letter on 14.03.2015 and promised to refund the booking amount on 28.03.2015 but the Opposite Party failed to keep up their promise, for that reason further Opposite Party by addressing letter dt.28.03.2015 promising the Complainant to refund the advance amount on or before 10.04.2015 and again by addressing letter dt.17.04.2015 the Opposite Party promised to refund the advance amount with interest on 29.04.2015, in spite of promise made by the Opposite Party to refund the advance amount with interest but Opposite Party failed to refund the booking amount. This evidence of the Complainant also remains unchallenged.  Therefore, it is proper to accept the contention of the Complainant that the Opposite Party fails to refund the advance amount and also fails to sell the sites as per the booking form.  On the other hand, the Opposite Party are enjoining the advance amount received from the Complainant it is hard earned money of the Complainant even the Complainant invested the said amount in any financial institution it will get interest but Opposite Party without selling the sites as agreed by them or refund the booking amount as per their promise it clearly amounts to unfair trade practice of the Opposite Party and also the Opposite Party has committed deficiency of service. 

13. It is the defence of the Opposite Party is that the Complainant has not deposited 30% of the plot amount of Rs.10,80,000/- but he paid only Rs.2,60,000/- failed to comply the booking form terms and conditions is not ready to arrange money he was playing with Opposite Party shifting the sites one or other reason hence, he had not paid amount not registered the site no question of deficiency of service.  As per booking form terms and conditions within 20 days have to pay 30% of the total sale consideration.  In support of their defence, Sri.Roopesh Sulegai, in his sworn testimony, he has reiterated the same and produced the booking form.  Even as looking into the booking form as per the General terms and conditions as stated earlier, it is very clear that the sale agreement should be executed within 20 days from the date of booking sale agreement will be executed only on payment of 30% of the total sale consideration.  But the Opposite Party has not come forward within 20 days to execute the sale agreement in favour of the Complainant.  If there is any fault on the Complainant side he has not paying 30% of the total sale consideration amount and the Opposite Party ought to have demanded the payment of 30% of the sale consideration amount but absolutely the Opposite Party have not placed any evidence to show that they have demanded within 20 days to pay 30% of the total sale consideration with the Complainant.  Furthermore, as the evidence placed by the Complainant, it is very clear that the Complainant demanded for refund of the advance amount of Rs.3,60,000/-, the Opposite Party themselves by addressing letters dt.11.02.2015, 14.03.2015, 28.03.2015 and 17.04.2015 clearly admitting to refund the advance amount with interest.  This evidence clearly goes to show that the Complainant has not violated the terms and conditions of the booking form.  On the other hand, the violated the terms and conditions of the booking form, the Opposite Party has failed to execute the sale agreement as per the terms and conditions of the booking form.  Therefore, it is not proper to accept the defence taken by the Opposite Party. 

14. On the other hand, as looking into the evidence placed by the Complainant, it is very clear that even though the Opposite Party by receiving the advance amount of Rs.3,60,000/- without executing the sale agreement infavour of the Complainant.  As per the terms of the booking form and in spite of demanding for refund of advance amount as promised by the Opposite Party, but the Opposite Party has failed to refund the same, thereby, it amounts to deficiency in service.  Since the Opposite Party receiving the amount on 15.10.2012 itself and keeping the said amount utilizing for their purpose, thereby the Opposite Party is liable to pay interest on the said amount at the rate of 18% p.a since this transaction is a business transaction of the Opposite Party and also the Opposite Party in spite of demanding and request made by the Complainant fails to refund or fails to executed the agreement of sale infavour of the Complainant has argued by them.  This act of the Opposite Party causes mental agony to the Complainant, thereby the Complainant is entitled for compensation towards mental agony.  Hence, this point is held in the Affirmative.

15. POINT NO.3:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency in service by the Opposite Party.

The Opposite Party is directed to refund the Booking Amount of Rs.3,60,000/- along with interest at 18% p.a. from 15.10.2012 and further Opposite Party is also directed to pay a sum of Rs.50,000/- as compensation for causing mental agony.

The Complainant is entitled for a sum of Rs.5,000/- as cost.

The Opposite Party is directed to pay the aforesaid amount within 45 days from the date of this order. 

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 17^th day of June 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Umesha K.C, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Photocopy of the booking form issued by the Opposite Party
2. Photocopy of the receipt dt.09.10.2012 issued by the Opposite Party to the Complainant.
3. Photocopy of the cheque dt.15.10.2012 drawn on ICICI Bank, Nagarathapet Branch issued by the Complainant to the Opposite Party.
4. Photocopy of the e-mails exchanged between theco and the Opposite Party.
5. Photocopy of the letters dt.11.02.2015, 14.03.2015, 28.03.2015 and 17.04.2015 exchanged between the Complainant and he Opposite Party.
6. Photocopy of the cheque bearing No.191711 dt.30.03.2015 drawn on Canara Bank, Bangalore K.P.West Branch, Bangalore for a sum of Rs.1,00,000/- issued by the Opposite Party.
7. Photocopy of the cheque return memo dt.08.05.2015 issued by the ICICI Bank RPC Branch, Bangalore.
8. Office copy of the legal notice dt.23.07.2015issued to the Opposite Party by the Complainant.
9. Photocopy of the postal receipt for having sent the notice to the Opposite Party.
10. Photocopy of the returned postal cover and acknowledgements. 

Witness examined on behalf of the Opposite Parties:

1. Sri.Roopesh Sulegai, on behalf of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Citations.

MEMBER                                                                             PRESIDENT    

 CC No.1543.2015

Filed on 25.08.2015

Disposed on.30.06.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 30^th DAY OF JUNE 2017

CONSUMER COMPLAINT NO.1543/2015

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                              V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 25.08.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to refund an amount of Rs.2,60,000/- together with interest at 24% p.a., to pay compensation of Rs.1,00,000/- with interest at 24% p.a., to pay additional sum of Rs.1,50,000/- and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Opposite Party being in the business of Real Estate, Property Development, Construction etc, have appraised the Complainant, that they have developed properties in and around Bangalore and formed a residential layout under the name and style “MAX KARANTH NEST”, in the properties located at Kuguru Village, Sarjapura Hobli of Anekal Taluk, Bangalore Rural District by obtaining necessary sanctions and permissions from the concerned authorities.  During the Month of September 2012, some of the marketing executives of the Opposite Party has contacted the Complainant and appraised him about the details of the above project and convinced him to purchase residential sites bearing Plot Nos.64, 65, 66 and 67 in the said project.  The Complainant agreed to purchase the above said Plots and on 09.10.2012 the Complainant has paid the booking amount of Rs.3,60,000/-being the part of the agreed sale consideration by way of cheque bearing No.227423 dt.15.10.2012. Subsequent to the payment of the aforementioned amounts, he has requested the Opposite Party to furnish all the relevant documents, like title deeds, revenue documents, conversion orders and layout plans approved by the concerned authorities for enabling him to complete the transaction at the earliest, even after his repeated requests and demands for the reasons better known to the Opposite Party, they have prolonged the process of the furnishing the documents on the ground that, the documents can be furnished only after execution of the necessary agreements in the name of prospective buyers.  In general terms and conditions of the booking form issued by the Opposite Party, the Opposite Party is liable and duty bound to execute the sale agreement in favour of the Complainant with in twenty days from the date of booking, but for the reasons better known to the Opposite Party, the Opposite Party has failed to execute the sale agreement in the name of the Complainant.   When he came to know that, the Opposite Party is stagnant in executing the agreement of sale, he left with no alternative visited the office of the Opposite Party for regular follow-up from April 2014.  It was brought to the notice of the Complainant that by the Opposite Party, that the project was stopped for some reasons.  The Opposite Party has prolonged the process of refund, keeping one or the other reasons ahead and has made the Complainant to scuttle to their office time and again after repeated requests and demands, in order to partly refund the amount collected from the Complainant, the Opposite Party has issued a cheque bearing No.191711 dt.30.03.2015 drawn on Canara Bank, Bangalore K.P.West Branch, Bangalore for a sum of Rs.1,00,000/- on the assurance that the same will be honoured on presentation.  When the Complainant presented the said cheque for collection through his bankers ICICI Bank RPC Limited, to his shock and surprise, the said cheque was returned unpaid with a shara “Account Blocked” vide the banker’s memo dt.08.05.2015.  The Opposite Party instead of transferring the entire amount to the Bank Account of the Complainant has issued two demand drafts for the same of Rs.50,000/- each to the Complainant on 20.04.2015 and 30.04.2015 and assured to transfer the further amount within a week from the above dates.    Even after his repeated requests and demands, the Opposite Party has failed to refund the balance amount to the Complainant.  The Opposite Party has requested the Complainant to shift his booking to the other project of the Opposite Party called “Max Nanda Gokula’ as the plots in the said project are ready for registration and the same will be registered within ten days or if the plots are not registered they will refund the amount along with interest immediately,  the Complainant who was invested his hard earned money left with other surrogate has agreed and shifted his booking to plot No.100 in the project called “Max Nanda Gokula”.   It is already 3 years elapsed from the date of Booking of the plots, whenever the Complainant tries to contact the Opposite Party or meet their personals; the Opposite Party has been evading and escaping from the sight of the Complainant.  Since last 3 years all his attempts to contact the responsible persons and recovering the amount is vent in vain, as each and every time the Opposite Party has assured to refund the amount with applicable interest, but failed to keep up their words.   The Complainant issued Legal Notice dt.23.07.2015 calling upon the Opposite Party to refund the amount collected from the Complainant along with the interest at the rate of 24% p.a from the date of payment.  The Opposite Party has failed to comply with the demands made in the said notice.  Even after knowing the fact of blocking of the account, giving false assurances on refund and making the Complainant to wait in their office for entire day for many times in last 2 ½ years, amounts to unfair trade practice and deficiency of service on the part of the Opposite Party.  Hence, this complaint. 

3.  In response to the notice, the Opposite Party put their appearance through their Counsel and filed their version.  In the version pleaded that the complaint is not a ‘Consumer’ as per Section 2(vi)(d)(i)(ii) is very clear service availed for his or her livelihood for personal use only here in this Complainant has booked 4 sites; one site is enough to build a house live happily.  But he is planning to invested money on land or sites to get commercial benefit/s in future by re-selling it.  Any service availed for commercial purpose as per Consumer Act she is not a Consumer hence on this ground this complaint is liable to be dismissed.  The Complainant has booked plot Nos.64,65, 66 and 67 in the said project measuring East to West 30 feet and North to South 50 Feet totally each sites measuring 1500 Sq.ft at the rate of Rs.600/- per sq.ft and total of 4 sites Rs.36,00,000/- it is divided as Rs.90,000/- for each site.  Again he had given a written letter to the Opposite Party to refund the amount that he is not interest to purchase these sites he cancelled the booking plots on December 2014.  Again he booked the site N.100 measuring east to west 30 feet and north to south 40 feet and asked the Opposite Party to adjust the amount of Rs.2,60,000/- which had been paid to the sites No.66,67,78,79.  Again he sent the email on 10.10.2012 requesting the Opposite Party to clubbed the all five sites booked, make it single plot it comes to East to West 60 feet North to South 100 feet totally it comes to measuring 6000 Sq.ft.  It’s cost of this plot is Rs.36,00,000/-.  As per the booking form he has to deposit the 30% of the plot amount of RS.10,80,000/- but he paid only Rs.2,60,000/- failed to comply the booking form terms and conditions is not ready to arrange money he was playing with Opposite Party shifting the sites one or other reason.   As per booking form terms and conditions within 20 days have to pay 30% of the total sale consideration and executing the sale agreement.  That is Rs.10,80,000/-, in this case the Complainant failure the compliance the booking form terms and conditions.  The Complainant has given letter to Opposite Party seeking refund of booking amount.  As per the booking form terms and conditions refund of booking amount will be done after 30 working days from date of cancellation and cancellation without a valid reason 15% of booking amount will be deducted towards service & transport charges.  As per booking form terms and conditions in case of cancellation of booking by purchaser max will not pay any interest.  Here Complainant failures the compliance the booking form terms and conditions.  The Opposite Party many times informed to Complainant.  Instead of the same the Opposite Party has offered to other sites in the other projects, in this case the Complainant has not agreed for the same, hence the claim of the Complainant is baseless.  As per the booking form terms and conditions, the Complainant ought to pay 30% of the entire sale consideration but not paid, Complainant has breached the contract and not willing to purchase the sites now making allegation against the Opposite Party is untenable.   The Complainant never approached the Opposite Party to allot the site and ready and willing to purchases as mentioned in the complaint if amount was paid definitely the Opposite Party allotted the sites and executed the sale agreement as agreed by the both side at the time of booking the sites, Complainant has suppressed the true facts.  No deficiency of service from Opposite Party side in this juncture would have executed the agreement for sale if amount was paid,  Complainant have no right to make wrong allegations against Opposite Party being defaulter Opposite Party was ready to sale the site all development works over but Complainant was not paid the balance amount hence sites were not allotted, now the Opposite Party is ready to pay the principle amount after deducting 15% in the advance amount towards travel and legal expenses as per Booking Form Condition No.12.  The Opposite Party is not making delay in projects, question of payment of compensation and damages or interest does not arise, and hence the complaint is liable to be rejected.  The Complainant was not ready to purchase he failed to arrange money in time now trying to act smartly by making wrong allegations against Opposite Party. It is very clear deficiency of service not on Opposite Party side it is on the Complainant’s side. Hence prays to dismiss the complaint.
4. The Complainant, Sri.Umesha K.C filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, the affidavit of one Sri.Roopessh Sulegai has been filed.   Heard the arguments of both parties.

5.      The points that arise for consideration are:-

1. Whether the Complainant is a ‘Consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 ?
2. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
3. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):-  Affirmative

                POINT (2):-  Affirmative

POINT (2):- As per the final Order

REASONS

7. POINT NO.1:- The learned Counsel for the Opposite Party argued that the Complainant is not a ‘Consumer’ as defined under Section 2(i)(d) of the Consumer Protection Act, 1986. Since it is clear by issuing the averments made in the complaint that the Complainant has booked 4 sites one site is enough to build a house.  But he is planning to invested money on land or sites to get commercial benefits in future by re-selling.  Any service availed for commercial purpose as per Consumer Act is not a ‘Consumer’.  Hence, the Complainant is not a ‘Consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.

8. In support of his argument, he relied upon a decision in IV (2013) CPJ 221(NC) between Sanjay Bansal V/s Vipul Limited and another and unreported decision between Sunil Gupta V/s Today Homes & Infrastructure (Pvt) Ltd, unreported decision by the National Consumer Disputers Redressal Commission in Consumer Complaint No.6/2014, unreported decision Ved Kumari & another V/s Omaxe Buildhome Private Limited. 

9. On the other hand, the learned Counsel for the Complainant argued that the Complainant is a ‘Consumer’ as defined under Section 2(1)(d) of the Act.  Nodoubt the Complainant has booked 4 sites but that itself is not proper to argued that the Complainant is not a ‘Consumer and the Complainant has booked 4 sites in order to for commercial purpose in future and the Complainant reselling the sites to get benefits, therefore it is not proper to believe that the Complainant has booked the sites.  On the other hand, the Complainant is not a ‘Consumer’ as defined Under Section 2(1)(d) of the Act.

10. With this argument and as seen from the record, nodoubt the Complainant has booked 4 sites, mere booking of 4 sites itself cannot be acceptable as it is for commercial purpose as argument addressed by the Opposite Party, merely Complainant has booked 4 sites that will not for the purpose to get benefit by reselling the sites, thereby it not amounts to commercial purpose.  The Complainant may for his future purpose booked 4 sites, absolutely there is no material to believe in the argument of the learned Counsel for the Opposite Party that the Complainant has booked 4 sites in order to reselling the sites and to get commercial benefit.  Therefore, it is not proper to accept the argument put forth by the learned Counsel for the Opposite Party.  On perusal of these decisions referred by the learned Counsel for the Opposite Party, the law laid down in the said decisions are not applicable to the facts of this case.  On the other hand, the Complainant is a ‘Consumer’ as defined under Section 2(1)(d) of the Act.  Hence, this point is held in the Affirmative.   

11. POINT NO.2:- As looking into the allegations made in the complaint and also version filed by the Opposite Party, it is not in dispute that the Complainant on 09.10.2012 by paying advance amount of Rs.3,60,000/- agreed to purchase flats bearing Nos.64, 65, 66 and 67 in “MAX Karanth Nest” Project of the Opposite Party.  Further to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the Booking Form it is dt.09.10.2012.  By looking into this, it is clear that the Complainant has booked 4 plots with Opposite Party measuring 30 X 50 Feet each at the rate of Rs.600/- per sq.ft total cost of the flat at Rs.36,00,000/- and he paid the advance amount of Rs.3,60,000/- and also produced receipt issued by the Opposite Party on 09.10.2012 for receiving the advance amount of Rs.3,60,000/- and also produced the copy of the cheque dt.15.10.2012.  Under this cheque, the Complainant has paid advance amount of Rs.3,60,000/- in favour of the Opposite Party.  This evidence of the Complainant remains unchallenged.  Therefore, it is proper to accept the contention of the Complainant that the Complainant has booked 4 sites measuring 30 X 50 Feet each at the rate of 600 per sq.ft total cost of Rs.36,00,000/- on 09.10.2012 and paid advance amount of Rs.3,60,000/-.

12.  It is further case of the Complainant,  subsequent to the payment of the advance amount, he has requested the Opposite Party to furnish all the relevant documents, like title deeds, revenue documents, conversion orders and layout plans approved by the concerned authorities for enabling him to complete the transaction at the earliest, even after his repeated requests and demands for the reasons better known to the Opposite Party, they have prolonged the process of the furnishing the documents on the ground that, the documents can be furnished only after execution of the necessary agreements.   In general terms and conditions of the booking form issued by the Opposite Party, the Opposite Party is liable and duty bound to execute the sale agreement in favour of the Complainant within 20 days from the date of booking, but the Opposite Party failed to execute the sale agreement in the name of the Complainant.   The Opposite Party is stagnant in executing the agreement of sale, the Complainant has no alternative visited the office of the Opposite Party for regular follow-up from April 2014 and it was brought to the notice of the Complainant that the project was stopped for some reasons.  The Complainant requested the Opposite Party to refund the amount collected from the Complainant, along with applicable interest.   On repeated requests and demands made by the Complainant, the Opposite Party has issued a cheque bearing No.191711 dt.30.03.2015 drawn on Canara Bank, for a sum of Rs.1,00,000/-.  When the Complainant presented the said cheque for collection, the said cheque was returned unpaid with a Shara “Account Blocked”.  The Opposite Party instead of transferring the entire amount to the Bank Account of the Complainant, he has issued two demand drafts for a sum of Rs.50,000/- each to the Complainant on 20.04.2015 and 30.04.2015 and assured to transfer the further amount within a week.   The Opposite Party has requested the Complainant to shift his booking to the other project of the Opposite Party called “Max Nanda Gokula’ as the plots in the said project are ready for registration and the same will be registered within ten days or if the plots are not registered, they will refund the amount along with interest immediately.  Even after his shifting to the other project of the Opposite Party, the Opposite Party has not furnished any documents to the Complainant nor executed any agreements are deeds in the name of the Complainant. After lapse of 3 years from the date of Booking of the plots, whenever the Complainants tried to contact Opposite Party or meet their personals, the Opposite Party has been evading and escaping from the sight of the Complainant.  Since last 3 years all his attempts to contact the responsible persons and recovering the amount is vent in vain, the Opposite Party has assured to refund the amount with applicable interest, but failed to keep up their words.   In order to substantiate this, the Complainant in his sworn testimony, he has reiterated the same.  This evidence of the Complainant remains unchallenged.  On the other hand, as looking into the Booking Form terms and conditions, it is clear that the sale agreement executed within 20 days from the date of booking.  As per the terms and conditions of the booking form, the Opposite Party failed to execute the agreement of sale in favour of the Complainant, in spite of receiving the advance amount after lapse of 3 years.   For that reason, the Complainant demanded for refund of advance amount and as per the demand made by the Complainant the Opposite Party issued a cheque for a sum of Rs.1,00,000/-.  When the Complainant presented the said cheque, the said cheque was dishonoured with a Shara as “Account Blocked”.   This is also clear, by looking into the copy of the cheque dt.30.03.2015 it is issued by the Opposite Party infavour of the Complainant the cheque bearing No.191711 and the Complainant also requested the Opposite Party to shift his booking amount to the another project of the Opposite Party i.e., “Max Nanda Gokula’ by addressing a letter.  In spite of his request for transfer of the booking amount to the another project i.e., “Max Nanda Gokula’, the Opposite Party fails to execute the sale agreement in favour of the Complainant.  For that reason, the Complainant demanded for request of the advance amount by sending letter dt.13.02.2015. The Opposite Party responded to this letter and promised to refund the advance amount of Rs.3,60,000/- on or before 27.02.2015.  In spite of this, the Opposite Party fails to refund the advance amount, for that reason, again the Opposite Party addressed a letter on 14.03.2015 and promised to refund the booking amount on 28.03.2015 but the Opposite Party failed to keep up their promise, for that reason further Opposite Party by addressing letter dt.28.03.2015 promising the Complainant to refund the advance amount on or before 10.04.2015 and again by addressing letter dt.17.04.2015 the Opposite Party promised to refund the advance amount with interest on 29.04.2015, in spite of promise made by the Opposite Party to refund the advance amount with interest but Opposite Party failed to refund the booking amount. This evidence of the Complainant also remains unchallenged.  Therefore, it is proper to accept the contention of the Complainant that the Opposite Party fails to refund the advance amount and also fails to sell the sites as per the booking form.  On the other hand, the Opposite Party are enjoining the advance amount received from the Complainant it is hard earned money of the Complainant even the Complainant invested the said amount in any financial institution it will get interest but Opposite Party without selling the sites as agreed by them or refund the booking amount as per their promise it clearly amounts to unfair trade practice of the Opposite Party and also the Opposite Party has committed deficiency of service. 

13. It is the defence of the Opposite Party is that the Complainant has not deposited 30% of the plot amount of Rs.10,80,000/- but he paid only Rs.2,60,000/- failed to comply the booking form terms and conditions is not ready to arrange money he was playing with Opposite Party shifting the sites one or other reason hence, he had not paid amount not registered the site no question of deficiency of service.  As per booking form terms and conditions within 20 days have to pay 30% of the total sale consideration.  In support of their defence, Sri.Roopesh Sulegai, in his sworn testimony, he has reiterated the same and produced the booking form.  Even as looking into the booking form as per the General terms and conditions as stated earlier, it is very clear that the sale agreement should be executed within 20 days from the date of booking sale agreement will be executed only on payment of 30% of the total sale consideration.  But the Opposite Party has not come forward within 20 days to execute the sale agreement in favour of the Complainant.  If there is any fault on the Complainant side he has not paying 30% of the total sale consideration amount and the Opposite Party ought to have demanded the payment of 30% of the sale consideration amount but absolutely the Opposite Party have not placed any evidence to show that they have demanded within 20 days to pay 30% of the total sale consideration with the Complainant.  Furthermore, as the evidence placed by the Complainant, it is very clear that the Complainant demanded for refund of the advance amount of Rs.3,60,000/-, the Opposite Party themselves by addressing letters dt.11.02.2015, 14.03.2015, 28.03.2015 and 17.04.2015 clearly admitting to refund the advance amount with interest.  This evidence clearly goes to show that the Complainant has not violated the terms and conditions of the booking form.  On the other hand, the violated the terms and conditions of the booking form, the Opposite Party has failed to execute the sale agreement as per the terms and conditions of the booking form.  Therefore, it is not proper to accept the defence taken by the Opposite Party. 

14. On the other hand, as looking into the evidence placed by the Complainant, it is very clear that even though the Opposite Party by receiving the advance amount of Rs.3,60,000/- without executing the sale agreement infavour of the Complainant.  As per the terms of the booking form and in spite of demanding for refund of advance amount as promised by the Opposite Party, but the Opposite Party has failed to refund the same, thereby, it amounts to deficiency in service.  Since the Opposite Party receiving the amount on 15.10.2012 itself and keeping the said amount utilizing for their purpose, thereby the Opposite Party is liable to pay interest on the said amount at the rate of 18% p.a since this transaction is a business transaction of the Opposite Party and also the Opposite Party in spite of demanding and request made by the Complainant fails to refund or fails to executed the agreement of sale infavour of the Complainant has argued by them.  This act of the Opposite Party causes mental agony to the Complainant, thereby the Complainant is entitled for compensation towards mental agony.  Hence, this point is held in the Affirmative.

15. POINT NO.3:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency in service by the Opposite Party.

The Opposite Party is directed to refund the Booking Amount of Rs.3,60,000/- along with interest at 18% p.a. from 15.10.2012 and further Opposite Party is also directed to pay a sum of Rs.50,000/- as compensation for causing mental agony.

The Complainant is entitled for a sum of Rs.5,000/- as cost.

The Opposite Party is directed to pay the aforesaid amount within 45 days from the date of this order. 

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 17^th day of June 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Umesha K.C, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Photocopy of the booking form issued by the Opposite Party
2. Photocopy of the receipt dt.09.10.2012 issued by the Opposite Party to the Complainant.
3. Photocopy of the cheque dt.15.10.2012 drawn on ICICI Bank, Nagarathapet Branch issued by the Complainant to the Opposite Party.
4. Photocopy of the e-mails exchanged between theco and the Opposite Party.
5. Photocopy of the letters dt.11.02.2015, 14.03.2015, 28.03.2015 and 17.04.2015 exchanged between the Complainant and he Opposite Party.
6. Photocopy of the cheque bearing No.191711 dt.30.03.2015 drawn on Canara Bank, Bangalore K.P.West Branch, Bangalore for a sum of Rs.1,00,000/- issued by the Opposite Party.
7. Photocopy of the cheque return memo dt.08.05.2015 issued by the ICICI Bank RPC Branch, Bangalore.
8. Office copy of the legal notice dt.23.07.2015issued to the Opposite Party by the Complainant.
9. Photocopy of the postal receipt for having sent the notice to the Opposite Party.
10. Photocopy of the returned postal cover and acknowledgements. 

Witness examined on behalf of the Opposite Parties:

1. Sri.Roopesh Sulegai, on behalf of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Citations.

MEMBER                                                                             PRESIDENT