Date of filing:21.08.2014

                                                               Date of Disposal:09.03.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 9^th DAY OF MARCH, 2023

CONSUMER COMPLAINT NO.1494/2014

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr.Samrat Adhikari,

S/o Mr.Bijaya Kumar Adhikari,

Ageda bout 32 years,

Residing at No.121,

Satko Palm Trees Apartments,

Munekulal, Marathhalli,

Bangalore-560 037.……COMPLAINANT

Rep by Sri.Sachin V.R, Advocate

M/s Maxworth Realty India Limited,

A Limited Company registered under

the Companies Act, 1956,

Having its registered office at No.22/1,

Railway Parallel Road,

Nehru Nagar,

Bangalore-560 020.

Represented by

1. Mr.Kesava K,

Chairman and Managing Director.

2. Mr.Sagar Gangaraju Husseramane,

3. Mrs.Kesava Hemalatha,

4. Ms.Praveena Srinivas,

Authorized Signatory and V.P.Finance.

5. Mr.Aftab Khan Warsi,

Deputy General Manager,

6. Mr.Mathew Praveen Kumar,

General Manager,

7. Mr.Rupesh Kumar,

Deputy General Manager. ……  OPPOSITE PARTY No.1 to 7

Op no.3 & 4 ex-parte

Op no.1, 2, 5, 6 & 7 are rep by Sri.Veerendra R.Patil, advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-12 of Consumer Protection Act, 1986 seeking for a direction to the opposite parties 1 to 6 to pay a sum of Rs.1,50,540/- to the complainant being the interest amount on the principal sum of Rs.6,30,000/- and such other reliefs as this commission deems fit in the circumstances of the case.

2. Even though notice been served on opposite party no.3 & 4, they are placed ex-parte.

3. It is not in dispute that the opposite party M/s Maxworth Realty India Limited was involved in the business of developing and selling of the immovable properties.  The opposite party no.1 is its Chairman and Managing Director and opposite party no.2 & 3 are its Directors and opposite party no.4 is the authorized signatory and opposite party no.5 to 7 are its Deputy General Managers.  Further, it is not in dispute that on 24.08.2011 the complainant and his brother and sister also entered into the assignment agreement/sale agreement with opposite party no.1 in respect of site No.284, 285 & 286 each measuring 30 X 40 feet carved in the residential layout called “Max Residency”.  Further, the complainant in total had booked three sites and has paid a sum of Rs.6,30,000/- as advance booking and the cost of each site was a sum of Rs.8,40,000/-.  Further, it is not in dispute that the said agreements have not been materialized and the opposite parties have returned Rs.6,30,000/- and a sum of Rs.70,000/- was paid by the opposite parties by way of demand draft on 30.06.2013.

4. Further, initially on 29.10.2015 this commission has dismissed the complaint and the said order has been challenged before the Hon’ble State Commission.  The Hon’ble State Commission in its order in appeal No.1177/2016, dt.08.04.2022 has set aside the order passed by this commission and remanded the case for disposal afresh by considering the interest at the rate of 12% p.a., claimed by the complainant.

5. It is the further case of the complainant that for the reasons best known to the opposite parties, they did not perform their part of contract and in spite of legal notice dt.10.04.2014 been issued to opposite parties, the opposite parties did not pay interest on the principal amount paid by the complainant while returning the said amount.

6. It is the further case of the opposite parties that the complainant has voluntarily cancelled the agreement and no undertaking letter has been issued to the Sanket Adhikar with regard to the interest is concerned.  Further as per clause-7 of the assignment agreement dt.07.09.2011 the option to the complainant is to approach civil court for specific performance of the contract.  Hence, the complaint is not maintainable.  Further, once agreement has been entered into the same cannot be cancelled unilaterally and the cancellation could be made only by way of bilaterally.  Hence, it is sought to dismiss the complaint.

7. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P13 documents. The opposite party no.1, 2, 5, 6 and 7 have filed their respective affidavits in the form of their evidence in chief.

8. Counsel for the complainant has filed written arguments with citations. 

9. Counsel for opposite party no.1, 2 to 5 to 7 have filed written arguments. 

10. The points that would arise for consideration are as under:

i) Whether there is deficiency of service on the part of the opposite parties ?

          ii)  Whether the complainant is entitle for the 

    compensation as sought ?

         iii) What order ?

11.  Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

12.POINT NO.1:- The complainant (PW1) and opposite party no.1, 2, 5, 6 & 7 have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  It is not in dispute that the total booking advance of Rs.6,30,000/- paid by the complainant has been returned by the opposite parties.  It is the contention of the learned counsel for the complainant that the amount of Rs.6,30,000/- was refunded on 30.06.2013 and the amount was paid to the opposite parties on 07.09.2011.

13. It is the contention of the learned counsel for the complainant that the opposite parties for the reasons best known had cancelled the assignment agreement.  It is the contention of the opposite parties that the complainant voluntarily cancelled the agreement.  Hence, the opposite parties are not entitled to pay interest as per the terms of the booking form vide EX.P4.  In EX.P4 it is stated that in case of cancellation of booking by purchaser, the opposite parties will not be liable to pay any interest on the booking amount paid.  There is no exchange of letters or any document in between the parties with regard to the cancellation of the agreement.  On 26.09.2011 the opposite parties had given a letter of undertaking that it would return the amount with 12% interest thereon.  In case, if the opposite parties could not complete the land development as per agreed schedule and in case the complainant cancels the booking without any fault from the company side, the complainant will be entitled to claim entire amount paid to the company as on date without any interest.  We feel since the land has not been developed, the cancellation of the booking was at the instance of the opposite parties.  Further, the complainant has also filed criminal case under Section-138 of NI Act for the recovery of the amount.  Thereafter, the refund was made by the opposite parties.  Hence, we feel there was a deficiency of service on the part of the opposite parties in not returning the amount timely.

14. It is the further contention of the learned counsel for the opposite parties that as per the assignment agreement the option available to the complainant was to file suit for specific performance.  We feel since the principal amount has been returned by the opposite parties question of filing suit for specific performance does not arise.  Hence, there is no merit in the said contention.

15. It is the further contention of the learned counsel for the opposite parties that since the principal amount has been paid the question of paying interest does not arise.  It is the contention of the learned counsel for the complainant that as per letter of undertaking the opposite parties have to pay interest at the rate of 12% p.a.  On perusal of EX.P7 letter of undertaking dt.26.10.2011 it could be seen that the opposite parties had undertaken to pay interest at the rate of 12% p.a.  The opposite parties did not dispute the genuineness vide EX.P7.  Further in support of the contention, counsel for the complainant relies the judgment rendered by Hon’ble NCDRC, New Delhi in First Appeal No.577/2003 and first Appeal No.683/2003.  In which, the interest at the rate of 12% p.a., was awarded as because the opposite parties builder has recovered from the complainant interest at the rate of 20% for delay in payment of instalment.  Further, counsel relies the judgment reported in LAWS (NCD)-2015-1-101 in between Puneet Malhotra V/s Parsvnath Developers Limited.  In the said case, the interest at the rate of 18% p.a was imposed.  Even though there was letter of undertaking to pay interest the opposite parties did not pay it.  Hence, there is deficiency of service on the part of the opposite parties.  Accordingly, we answer this point in affirmative.

16.POINT No.2:- The complainant claimed a sum of Rs.1,50,540/- being the interest amount payable on the principal sum of Rs.6,30,000/- as per the letter of undertaking dt.26.09.2011 and 09.03.2013.  We feel the complainant is entitled interest at the rate of 12% p.a. on the principal sum of Rs.6,30,000/- from the date of payment till refund has been made by the opposite parties.

17. Further, it is the contention of the learned counsel for the complainant that even though the opposite parties ought to have pay interest, till date has not paid interest.  Hence, the complainant is entitled for interest till the date of payment.  We feel the complainant is entitle for interest on the amount arrived at the rate of 9% p.a from the date of repayment of the principal amount of Rs.6,30,000/- till realization.  Further, the complainant is entitle for a sum of Rs.20,000/- towards mental agony and damages caused and a sum of Rs.10,000/- towards litigation expenses.  Accordingly, we answer this point partly in affirmative.

18.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

ORDER

The complaint is allowed in part.

The Opposite party M/s Maxworth Realty India Limited and the opposite party no.1 to 6 are jointly and severally liable to pay interest at the rate of 12% p.a on the principal sum of Rs.6,20,000/- from the date of payment till repayment was made by the opposite parties and interest at the rate of 9% p.a. on the amount arrived in the form of interest from the date of repayment of their amount till realization and a sum of Rs.20,000/- towards mental agony and hardship and a sum of Rs.10,000/- towards litigation cost.

The Opposite party M/s Maxworth Realty India Limited and the opposite party no.1 to 6 shall comply the order within 30 days.   In case, the Opposite party M/s Maxworth Realty India Limited and the opposite party no.1 to 6 fail to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 9^th day of March, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Sri.Samrat Adhikari, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Three assignment agreements dt.07.09.2011.
2. Xerox copy of the booking form and its terms and conditions are together.
3. Print out receipts sent by opposite party through mail.
4. Copy of the letter of undertaking dt.26.09.2011 given by the opposite parties.
5. Xerox copy of the email print out sent by the opposite parties undertaking for payment.
6. Xerox copy of the cheque return memo.
7. Office copy of the legal notice dt.20.05.2013.
8. Office copy of corrigendum notice dt.26.05.2013.
9. Office copy of legal notice dt.10.04.2014.
10. Fifteen postal acknowledgments for having received the notice by the opposite parties. 

Witness examined for the opposite party side: 

          Sri.Kesava K, Chairman and Managing Director of opposite party No.1 company has filed his affidavit.

Sri.Sagar Gangaraju Hussermane, Director of opposite party No.2 company has filed his affidavit.

Sri.Aftab Khan Warsi, Deputy General Manager of opposite party No.5 company has filed his affidavit.

Sri.Mathew Praveen Kumar, General Manager of opposite party No.6 company has filed his affidavit.

Sri.Roopesh Sulegai, Deputy General Manager of opposite party No.7 company has filed his affidavit.

Documents marked for the Opposite Party side:

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•