BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

 13^th DAY OF OCTOBER 2021

O R D E R

SRI.S.L.PATIL, PRESIDENT

1. This is a complaint filed by the complainant under Section 35 of the Consumer Protection Act, 2019 praying for an order against Opposite Parties (herein after referred as OPs) to direct OPs to repay the advance amount of Rs.2,93,360 along with interest at 15% p.a., compensation of Rs.50,000/- and Rs.50,000/- towards litigation costs and to grant such other reliefs. 

2. The brief averments made in the complaint are as follows:

The complainant submits that OP is a limited company indulged in real estate business viz., formation of layouts after buying it and selling the sites to various persons and to make profit out of it and their head office and corporate office are situated in Bengaluru City.  Further complainant submits that in the year 2013 the OP has announced openly and given vide publication by distributing the pamphlets and also in daily newspaper that they are forming layout in Dhyavarahalli village, Kundana Hobli, Devenahalli Taluk, Bengaluru Rural District and the name of the proposed layout is called Max Orchards III. 

Further complainant submits that he has believed the version of OP booked a site bearing No.195 measuring 30 x 40 ft. for Rs.650/- per sq.ft. which comes to Rs.7,80,000/-.  The complainant has paid advance amount of Rs.50,000/- through cheque bearing No.785062 dated 25.03.2013 drawn on ICICI Bank for which Op has issued receipt. Further complainant submits that when he has asked to execute the sale agreement, OP has asked him to pay 30% amount out of the total sale consideration, accordingly, he has paid Rs.60,840/- through cheque bearing No.271699 dated 14.04.2013, Rs.60,840/- cheque No.271700 dated 14.07.2013, Rs.60,840/- cheque No.271701 dated 14.10.2013 and Rs.60,840/- cheque No.785075 dated 14.01.2014 in all total Rs.2,43,360/- for which Op has issued receipts.  Thus in all the total amount paid by the complainant to the OP including the advance amount of Rs.50,000/- comes to Rs.2,93,360/-.

Further complainant submits that even after the payment of the amount, the OP did not execute the sale agreement despite several reminders over phone and personal approaches and they have been postponing the same even after 2 years also on the ground that the layout is not yet formed due to some technical reasons.  The complainant with no other alternative asked the Op to retune the advance amount for which Op has send the mail that they will repay the aforesaid amount in two instalments i.e. Rs.1,46,680/- within 30 days from 10.06.2015 and balance of Rs.1,46,680/- will be paid on or before 10.08.2015.  It is submitted that despite the above said mail, Op did not return the amount as agreed by them.  Again on 14.03.2018 the OP has given a letter that they will repay the advance amount in two instalments, but OP did not repay the said amount.  The Op not only fulfil their promise to sell the site or did not return the advance amount paid to them even after 8 years, despite their promises mentioned above, amounts to unfair trade practice adopted by the trader and also amounts to deficiency in providing the service by the service provider to the consumer. 

Further complainant submits that as per the terms and condition No.12, as mentioned in the back side of the booking form, it is clear that if the purchaser cancel the booking and he wants return of the advance amount, the OP is entitled to deduct 15% of the advance amount towards service and transport charges and the same is applicable to the OP also.  The cause of action for this complaint arose on 17.03.2013 when OP has received the advance amount.

3. On receipt of the notice OP did appear and filed version.  In the version the OP submits that complaint is vexatious and frivolous, is not maintainable either in law or on facts and liable to be dismissed in lemine. The allegations made in complaint with respect to booking of site No.195 in Max Orchards Phase III total sale cost of Rs.7,80,000/- and the complainant has paid Rs.2,93,360/- advance amount denied as false.

          Further OP submits that allegations with respect to there were no developmental activities carried on after receipt of the said amount, waiting for approval from the Government authorities, made several request to register the sale deed ultimately requested to refund the amount, it given the false promise and assurance, cheated the complainant by receiving the amount with a dishonest intention, the act of OP is unfair trade practice and has utterly caused deficiency of service are all baseless allegation. OP further submits that it is running real estate business and registered under the Companies Act and having acquired goodwill amongst other.  The main object of the company is to purchase the lands and formation of layout, constructing plots and selling the same in the name and style of Maxworth Realty India Ltd.,

It is further submits that the OP is always ready and willing to execute the absolute sale deed in favour of the complainant either in Max Residency Project which are fully developed by obtaining all government approvals but the complainant not ready to register.  When the complainant has violated the terms and conditions of booking form and conditions and not ready and willing to purchase the sites ready with full consideration to get absolute sale deed, unfair trade practice and deficiency of service on the part of the OP does not arises and hence, OP is not liable to pay interest, compensation and litigation expenses etc.,.  Therefore, OP prays to dismiss the complaint and order to get register the absolute sale deed by paying balance sale consideration in project of Max Orchids III or Max Marvel III which are fully developed by obtaining all authorities approvals.

4. Complainant has filed affidavit evidence and produced documents which are marked as Ex.A.1 to Ex.A.9. The complainant filed written arguments. Heard the learned counsels of both sides.

        5. The points that arises for our consideration are:

  6. Our answer to the above points:

REASONS

      7. Point No.1: In the instant case, the complainant has sought for the relief of directing the OP to pay Rs.2,93,360/- with interest at the rate of 15% p.a. including compensation cost of litigation.

        8. The main grievance of the complainant is that the site booked by the complainant by paying advance amount of Rs.2,93,360/- one or the other reasons, there is delay in starting the said projects and execute the sale deed in favour of complainant.  OP in its version stated that now it is ready to execute the registered sale deed on receipt of the balance considereation in the project of Max Orchids III or Max Marvel III.  In these projects also there is no developmental activities which can be seen on going through the contents of the complaint.  As booking of the said sites as adviced by the OP was not materialized, hence, the complainant has no other go except to sought for refund, in this context he has made several correspondence which were went in vain.  Since OP has specifically admitted in para 3 of their version that it has received the advance amount of Rs.2,93,360/-.  Now the question that crops up for our consideration is, for which of the reliefs, the complainant entitled for.  In this context to place the reliance of the judgement reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund of earnest money. The option is left open to him for enforcement of the agreement of sale directing the OP for registration of the sale deed if not sought for refund of money. 

        9. In the light of the decision cited supra, we are of the opinion that the complainant is entitled for the refund the advance amount of Rs.2,93,360/- with 10% interest in the form of compensation with litigation cost of Rs.5,000/- as this Forum has ordered in the similar type of cases.  Accordingly, we come to conclusion that the complainant has proved the deficiency of service as well as unfair trade practice adopted by the OP.  Accordingly, Point No.1 is answered in the Affirmative.

        10. Point No.2:  In the result, we pass the following:

ORDER

1. The complaint filed by the complainant u/s.35 of the Consumer Protection Act, 2019 is allowed in part.
2. OP is directed to refund an amount of Rs.2,93,360/- (Rupees two lakhs ninety three thousand three hundred and sixty only) with interest at 10% p.a. in the form of compensation with litigation cost of Rs.5,000/- (Rupees five thousand only) to the complainant.
3. OP shall comply this order within six weeks from the date of receipt of the order, failing which the complainant is at liberty to take steps as per Law.
4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer and pronounced in the Open Commission on this 13^th day of October, 2021).

List of documents produced by the complainants are marked as Ex.A.1 to Ex.A.9:-