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

 4^th DAY OF DECEMBER 2021

O R D E R

SMT. P.K.SHANTHA, MEMBER

1. The complainants have filed this complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (herein after referred as OPs) with a prayer to direct the OPs to pay the complainant balance amount oF Rs.3,00,000/- interest, Rs.1,62,000/- from the date of booking i.e. 20.01.2014 @ 18% p.a. until the filing of this complaint, Rs.50,000/- towards mental agony, Rs.1,00,000/- towards damages, Rs.1,00,000/- towards cost of litigation.
2. The brief averments made in the complaint are as follows:

OP M/s Maxworth India Limited bearing company identification No.U4520 1 KA 2008 PLCO45928 is a company limited shares incorporated on 04.04.2008 in Bangalore.

The OP has undertaken a project in the name and style of “Maxworth City – Maximum Value, Maximum Joy” at M.S.Palya, Vidyaranyapura consisting of 6  (six) towers of 510 (five hundred and ten) units of 2 and 3 BHK apartments, since the project was centrally located in the heart of the city of Bangalore and it was close to the complainant’s workplace, spouses workplace and schools of his children, he decided to purchase a flat with the OP.

The complainant No.2 booked a 2 BHK flat on 20.01.2014 in the name of complainant No.1 and was allotted an east facing flat No.1101 in Block F measuring 865 sq.ft. at the cost of Rs.3,000/- (Rupees three thousand only) per sq.f.t including car park and other amenities which amounted to Rs.31,08,500/- (Rupees thirty two lakhs only).

The complainant No.2 booked a 2 BHK flat on 20.01.2014 in the name of complainant No.1 and was allotted an east facing flat NO.1001 in Block F at the cost of Rs.3,000/- (Rupees three thousand only) per sq.ft. including car park and other amenities which amounted to Rs.32,58,500/- (Rupees thirty two lakhs fifty eight thousand five hundred only).

  The brother-in-law Sri Rahul Bandekar is serving for the Indian Army at Uttarkhan/Sikkim-Indo China Border and as such he was unable to come to Bangalore to book the flat.  Therefore, the complainant No.2 Sri Aravinda Kanade by way of cheque drawn in favour of Op to a total sum of Rs.13,00,000/- towards three flats booked in the name of complainant No.1 and Sri Rahul Bandekar.  The OPs have issued the receipts for having received the said booking amount of Rs.13,00,000/-.  The payment made towards the flat was out of stress and hard earned income of the complainants. They are shown as hereunder:-

Thereafter, it came to the knowledge of the complainants that the project undertaken by the OP has not implemented.  Immediately, the complainant approached the OP to seek the cancellation of the flat which he had booked.  Accordingly, the complainant No.2 made a representation to the OP on 17.10.2015 tocancel the flat booked in the name of complainant No.1 and Sri Rahul Bandekar and to refund the entire amount paid towards the booking of the flat.  The receipt of the representation duly acknowledged by the OP and undertake to refund the booking amount to the complainants within the period of thirty working days.

The OP has refunded only Rs.5,00,000/- (Rupees five lakhs only).  The Following table shows the dates on which the OP refunded the portion of the booking amount paid by the complainant.

A copy of the bank statement of the complainant showing the afore mentioned amount has been refunded by the OP.

Persuant thereto, the complainant made several oral requests and E-mail correspondences to the OP requesting them to refund the balance amount.  However, all such attempts made by the complainant turned in vain.  Further Ops have not refunded the balance amount till date.  The OP has neither refunded the entire amount, nor have they been able to complete the construction within the scheduled period promised i.e. June 2016.  This proves that there is clear deficiency of service on the part of the OPs.

The OPs vide letter dated 11.03.2016 commonly addressed to (1) Sri Raghavendra, (2) Sri Rahul, (3) Sri Vishwnu (4) the complainant herein Sri Aravind, (5) Sri Umesh and (6) Sri Kiran have stated viz., “we hereby confirm the pending amount for the above said client list is scheduled for payment before April 11^th 2016 and will be completed”.  A bare perusal of the aforesaid statement show that the OPs have assured/admitted to the complainant to refund the entire amount paid to the complainant.  The proceedings under the SARFAESI Act was initiated in respect of the property bearing BBMP Khata No.245/14/2 in Sy.No.14/2 (old Sy.No.14) measuring to an extent of 4 acres 20 guntas i.e., the land property in which the project undertaken by the OP has to be undertaken.  As per the order of the competent under the SARFAESI Act, the physical possession with respect to the builder share – OPs in 64% in 3 acres 20 guntas and 1 acre exclusive ownership of the builder share OPs have have been taken by Religare Finvest Ltd., Indirangar, Bangalore.  Therefore, it is evident fact that the project undertaken by the OPs was not duly completed as assured by them which amounts to deficiency of service.

The complainant has tried his level best to obtain the refund of the remaining amount, but all his efforts have gone in vain.  Hence, the complainant felt deficiency in service on the part of OPs and filed this complaint before this Commission seeking redressal for his grievance.   

3. After admitting the complaint, notices were issued to OPs.  The notice sent to OP No.1 returned with endorsement “left”. Notice sent to OP No.2 duly served, called out absent and placed exparte.  Counsel for OP No.1 was present before the Commission and received the notice and filed version.
4. The sum and substance of the version as follows:- The complaint is vexatious and frivolus is not maintainable either in law or on facts and liable to be dismissed in lemine.  The averments made in para 3,4,5,6,8 and 12 of the complaint with respect to registration and identity of the OP, with respect to booking of flat proposed cost and with respect to payment of advance amount, refund of filing earlier consumer complaint in CC 2824/2017 and return the same and filing of present complaint is admitted. 

The allegations made in para 7, 9 and 10 of the complaint regarding for non-completion of the project, the complainant has cancelled the booking of flat, regarding balance amount of Rs.3,00,000/-, with respect to alteration in earlier booking of the flat is denied. Allegations made in para 10 of the complaint regarding proceedings under the Sarfaesi Act is admitted.

OP is running real estate business and registered Companies Act.  The OP having acquired good will amongst other real estates Company all over India.  The complainant has booked flat in Maxworth City and due to his incapability sought for refund of advance amount.  Out of Rs.13,00,000/- (Rupees thirteen lakhs only).  The OP has refunded Rs.5,00,000/- (Rupes five lakhs only)  + Rs.5,00,000/- (Rupees five lakhs only) when the complainant credited the amount to the OP Rs.79,477/- (Rupees seventy nine thousand four hundred and seventy seven only) has been remitted to the account of the Government towards VAT and other taxes and there remains only Rs.2,53,656/- balance to the complainant.  But, the complainant has claimed undue amount, exorbitant rate of interest, mental agony, damages and cost of litigation.

The complainant has paid only meagre amount, he is not ready and willing to purchase the site as per the terms and conditions of the booking form.  The complainant neither deposited 30% of the amount to get register the sale agreement nor ready with full consideration to get absolute sale deed and intentionally delayed for these years just to claim unlawful gain of money from the OP.

The E-mail correspondence and legal notice issued by the complainant as well as complaint clearly shows that the complainant has seeking only refund of advance amount along with interest and compensation but not ready to purchase the site.  This shows the malafide intention of the complainant.

The OP is always ready and willing to execute the sale deeds in favour of complainant in the Max Madhura project which is fully developed by obtained all the permissions and approvals situated nearby project. Hence, OP pray the Commission to pleased to dismiss the complaint and order to get register the absolute sale deed by paying balance sale consideration in Max Madhura project or refund the remaining amount by deducting 15% out of advance amount to the complainant.

5. Therefore, the complainant was called upon to tender his evidence by way of affidavit.  Accordingly, complainant tendered his evidence by way of affidavit along with list of documents.  Ex.A.1 to Ex.A.12 marked.  OP failed to file affidavit evidence. Heard the complainant.

        6. The points that arises for our consideration are:

  7. Our answer to the above points:

REASONS

      8. Point No.1: Perused the allegations made in the complaint, sworn testimony of complainant and various documents produced by them goes to establish that the complainant has booked two BHK flat in the OPs project in the name and style of Maxworth City – Minimum Value, Maximum Joy.  The copy of the prospectus/brochure is produced as Ex.A.1 and complainant was allotted an east facing, flat No.1101 in block “F” measuring 865 sq.ft. at the cost of Rs.3,000/- (Rupees three thousanmd only) per sq.ft. and east facing flat No.1001 in Block F measuring 865 sq.ft. at the cost of Rs.3,000/- (Rupees three thousand only) including car park and other amenities which amounted to Rs.32,55,000/- (Rupees thirty two lakhs fifty five thousand only).  Copy of the booking form in respect of flat No.1001, Block F and booking form dated 20.01.2014 in respect of flat No.1107, Block F are produced and marked as Ex.A.2 and Ex.A.3.  Complainant No.1 made payment of Rs.8,00,000/- on 29.01.2014 towards booking of the flats.  The complainant made further payments through cheques dated 11.01.2014, 02.02.2014, and 06.04.2014 in favour of the OPs and OPs have issued receipts dated 11.01.2014, 20.01.2014 and 06.04.2014 in respect of flat No.1101 said payments made by the complainant in favour of OP.  The  No.2 had made payment of Rs.5,00,000/- in respect of flat No.1001 through cheques in favour of OP.  The above said receipts issued by the Ops are produced and marked as Ex.A.4 to Ex.A.6.  Thereafter, it came to the knowledge of the complainant that the project undertaken by the OP was not implemented. Immediately the complainant approached the Op for the cancelaltion of the flat which he had booked.  Accordingly, the complainant made a representaiton to the OP on 17.10.2015 to refund the balance amount.  The receipt of the representation duly acknowledged by the OP and cancellation letter / registration dated 17.10.2015 is produced and marked as Ex.A.7.

        9. Thereafter the OP has refunded only Rs.10,00,000/- (Rupees ten lakhs only).  A copy of the statement produced and marked as Ex.A.8.  Persuant there to the complainant made oral requests and E-mail correspondences to the OP requesting them to refund a balance amount.  A copy of the E-mail correspondence dated 29.11.2015 and letter dated 11.03.2016 issued by OP produced and marked as Ex.A.10 to Ex.A.11.  However, all such attempts made by the complainant turned in vain.  Further the OPs have not refunded the balance amount till date.  The OPs have neither refunded the balance amount, nor have been able to complete the construction within scheduled period promised i.e. June 2016.  The OP vide letter dated 11.03.2016 commonly addressed to complainant and others similar consumers viz., “we hereby confirm the sending amount for the above said client list is scheduled for payment before April 11^th 2016 and will be completed.”  A bare perusal of the aforesaid statement show that the OPs have assured admitted to the complainant to refund the entire amount paid to the complainant.  Copies of the E-mail correspondence dated 29.11.2015 and letter dated 11.03.2016 issued by the OPs are produced and marked as Ex.A.10 and Ex.A.11.  Copies of the photographs of the premises which indicates SARFAESI proceedings intiating against the land on which the project was sought to be implemented by the OPs is produced and marked as Ex.A.12.

          10. Perused the copies of documents and receipts produced by the complainant and the sworn testimony of complainant coupled with documents establishes that OPs having received Rs.13,00,000/-, failed to implement the project undertaken by them and failed to refund the balance amount despite repeated oral requests and several reminders made through E-mail amounts to deficiency of service and unfair trade practice on the part of OPs.  Due to irresponsible behaviour on the part of Ops, the complainant has suffered financial loss and mental agony.

11. There is no reason to disbelieve the unchallenged affidavit of the complainant and the documents produced.  Therefore, we are of the opinion that Ops are directed to refund the balance amount of Rs.3,00,000/- (Rupees three lakhs only) together with interest at 10% p.a. by way of compensation from the date of payment till realization.  Further Ops are directed to pay Rs.5,000/- litigation costs. Accordingly, Point No.1 is answered partly in the Affirmative.

        11. 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. OPs are jointly and sevrally directed to refund an amount of Rs.3,00,000/- (Rupees three lakhs only) with interest at 10% p.a. by way of compensation from the date of payment till realization with litigation cost of Rs.5,000/- (Rupees five thousand only) to the complainant.
3. OPs 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 4^th Day of December, 2021).

List of documents produced by the complainants are marked as Ex.A.1 to Ex.A.12:-