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.810/2017

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 sites under the name of “MAX SINDHUR and MAX SADHANA”. The complainant wanted to purchase plot No.78 measuring 1200 Sq.feet in Max Sindur project and plot No. 129 measuring 680 Sq.feet in Max Sadana Project for total Sale consideration of Rs.5,40,000/- and Rs.18,54,360/-. The complainant has paid Rs.1,25,000/- byway of cheque bearing Nos.505892 and 505891 and  on 29.06.2012  and 19.05.2012 drawn on ICTI bank, NA Bengaluru  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 extended the time with a view to drag on the formation and handing over the possession of the same.  They have duped him for Rs.18,54,360/- and Rs.5,40,000/-. Inspite of notice, they have 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 is not availed service for eking lively hood.  The complainant wanted to purchase plot No.78 measuring 1200 Sq.feet in Max Sindur project and plot No. 129 measuring 680 Sq.feet in Max Sadana Project for total Sale consideration of Rs.5,40,000/- and Rs.18,54,360/-. 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.  Complainant has breached the contract.   Further the Op has taken contention that the complainant has planned to make profit to 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 a site to the complainant if the amount is paid and execute the agreement for sale. The complainant has not come forward to do their part of contract and simply he is making wrong allegation against to it.  There is no deficiency in service on its part as it would have executed the sale deed, if there was no cancellation of the project.  The allegations made against it are all baseless and hence O.P prayed to dismiss the complaint. It is stated that, complainant has paid only a sum of Rs.1,25,000/-.  Due to the misunderstanding between the landlords and O.P., in the year 2013, the project of forming plot under the name and style “MAX SINDHUR and MAX SADHANA” was cancelled. Whereas it offered an alternate site in other projects for which complainant did not agree.  The allegation 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.680/- per sq. feet and received 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 layout and without doing so, it 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 commercial for propose. Hence the allegation made by the OP has no substance. Therefore the allegation of commercial transaction cannot be accepted. Hence 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. National consumer commission has  in

Vedkumari and another V/s Omaxe Buildhome Pvt.Ltd., on 05.03.2014, please consider the above citations, in the interest of justice and equity./////////// It becomes clear that it 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 29.06.2012 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)

MEMBER                        PRESIDENT

ANNEXURES

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

CW-1 :Sri. Shivananda Kadadi– 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