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

 25^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 Party (herein after referred as OP) to direct OP to return the booking amount of Rs.2,10,000/- and damages/compensation of Rs.4,00,000/-, to pay Rs.10,000/- towards cost and to grant such other reliefs. 

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

The complainant submits that OP is in the business of developing the lands and forming the residential layouts and selling the plots/sites to the purchasers. The complainant was in search of a site in the year 2013, he came to know that OP was gong to start development of plots in various lands of Tavarekere, Muddaiahnapalya, Magadi Road, Bengaluru and complainant approached the OP, he represented to the complainant regarding forming residential layout in the lands of said village and the project name is Max Spandana.  Further complainant submits that he has believed the OP assurances and agreed to purchase plot Nos.96 to 101 in the above said project and also made advance booking by payment of Rs.2,10,000/- vide cheque No.195777 dated 29.09.2013 drawn on Karnataka State Co-op. Apex Bank Ltd., Rajajinagar, Bengaluru for which OP has fixed Rs.650/- per sq.ft. for the said plots.  Further complainant submits that at the time of payment, the OP has assured him to execute the sale deed within a year from 26.09.2013 without fail in respect of above said plots carved out of Max Spandana project. 

Further complainant submits that one Mr.Narayana Swamy, who represented on behalf of OP company had taken him to the location of the plots/property and later to company office and introduced one Mr.Madhu as his business development mananger and received the booking amount and issued receipt for the amount received through cheque detailed above.  Complainant further submits that on several time, he has approached the Op office and met Mr.Narayana Swamy for the site in Max Spandana by that time, the said office bearer told that the Max Spandana project was under process and ready to execute the sale agreement or sale deed once after obtaining the necessary permission from different offices.  But, till now no documents have been provided.  Further complainant submits that the OP has requested him to take/purchase plots at MAX SERI located at Chokkanadahalli, Malur Taluk as Max Spandana plots were not ready till date (i.e. even after 8 years) and also assured regarding availability of loan from nationalized bank on this site.  The complainant has agreed to purchase site in MAX SERI/MAX MAHIMA project for the above said old cost Rs.650/- per sq.ft..  However, evenafter the discussion of this project, the OP and company officeres never tried to execute the documents in favour of complainant in respect of site No.117 of MAX SERI/MAX MAHIMA project.   Therefore, the complainant has approached the Op and demanded for execution of agreement/sale deed in respect of said stie No.117 at cost of Rs.650/- per sq.ft. and OP asked him to arrange the balance amount and registration expenses.

Further complainant submits that one Mr.Mathew partner and decision maker and higher hierarchy of Narayanaswamy for the execution of sale deed informed that, it is not possible to execute sale deed for site No.117, but ready to execute the sale deed of site No.115 which was available for registration; the same was refused by the complainant.  Further complainant submits that one Mr.Mathew sent an E-mail to complainant on 23.05.2020 and coated rate per sq.ft. was Rs.1025/- for site No.115 and demanded him to get the sale deed by 08.06.2020 for which he was unable to arrange the amount due to Covid-19 and the above said person has provided some documents which are not legally fit to get the loan, therefore, the complainant has lost faith on the Op and therefore demanded to refund of his booking amount with interest by sending an E-mail dated 04.06.2020, but Op failed to comply.  Hence, complainant has issued legal notice on 23.10.2020 demanding for refund of booking amount along with damages.  Since the Op faield to provide the site by executing sale deed in favour of complainant and failed to provide the documents and failed to return the booking amount along with damages which are nothing but deficiency of service. Hence, this complaint.

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 plot No.96 to 101 in Max Spandana, the complainant paid Rs.2,10,000/- 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 receving 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 complainant is not a consumer as per Section 2(1)(d)(ii) of C.P.Act because complainant has booked 6 sites, the aforesaid two sites for commercial purpose and not for his livelihood.  One site is enough for livelihood as per law. OP is always ready and willing to execute the absolute sale deed in favour of the complainant either in Max marvel IV 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.,. Further OP submits that complainant not paid 30% of total cost of the site, unfair trade practice and deficiency of service on the part of Op does not arises. 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 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.8. 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.2,10,000/-, damages of Rs.4,00,000/- including cost of litigation of Rs.10,000/-.

        8. The main grievance of the complainant is that the plots booked by the complainant by paying advance amount of Rs.2,10,000/- one or the other reasons, there is delay in starting the said projects and execute the sale deed in favour of complainant and site booked by the complainant are one or other reasons transferred from one land to another land and not free from encumbrance.  Hence, there is delay in starting the said projects.  OP in its version stated that now it is ready to execute the registered sale deed on receipt of the balance considereation in the porject of 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. 

        9. Another contention taken by the OP is that complainant has booked 6 sites which are commercial purpose and not for livelihood. This issue has beel diluted by Hon’ble National Commisison in number of decisions that booking of more than one site cannot be termed as commercial purpose unless and until the OP proof the same by adducing evidence.  In the instant case, merely taking bold allegations nothing is pleaded by OP.  Hence, the said contention taken by the OP has no legs to stand.

        10. 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. 

        10. 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.2,10,000/- 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 partly in the Affirmative.

        11. Point No.2:  In view of our findings on the point No.1, 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.2,10,000/- (Rupees two lakhs ten thousand 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 25^th day of October, 2021).

List of documents produced by the complainant are marked as Ex.A.1 to Ex.A.8:-