CC No.389/2015

Filed on: 26.02.2015

Disposed on: 24.05.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 24^th DAY OF MAY 2017

CONSUMER COMPLAINT NO.389/2015

PRESENT:

Sri. H.S.RAMAKRISHNA B.Sc., LL.B.

       PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                     V/S

ORDER

BY SMT.L.MAMATHA, MEMBER

1. This Complaint was filed by the Complainant on 25/02/2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to repayment of the advance payment of Rs.7,37,500/- and Rs.2,750/-  being the Stamp duty amount along with an interest  calculated at  the rate of 24% p.a. and  other reliefs.

2. The brief facts of the complaint as under:

The complainants to meet their personal as well as the basic needs of the family members, the complainants were in need of residential premises and were undertaking all necessary steps to find a suitable premise. The Opponent is a company engaged in the business of developing and constructing residential apartments and thereafter selling the same to the numerous buyers at a profit. In 2006, the opponent launched a residential project by the name of “Skyline Orange Country” which was later renamed as “Skylilne Exaultus”. The Opponent at the time of launch of project made tall promises to the effect that the construction of the project would commence within 10 months and the same would be ready for occupation thereafter. The opponent also represented that it has received all the necessary regulatory approvals to develop the project under the relevant laws. The complainants being influenced about the tall promises made regarding the project approached its consultants M/s G & C Consortium Pvt. Ltd.  to assist the complainants in buying a flat in the project and to act  as a conduit between the Opponent and the complainants so as to ensure that all the formalities for the purchase of the apartment in the project could be completed, G& C being the representative of the complainants were primarily tasked with ensuring that the Opponent would in harmony with the complainants  complete all the prerequisites required for the purchase of the apartment including but not limited to the issuing of the allotment letter, the execution of the agreement to sell and construction agreements and the handing over of the apartment to the complainants. Therefore, time and again on behalf of the complainants and G & C communicated with the opponent to complete all the formalities regarding purchase of the apartment in the project. The complainants were duped by the false promises of the opponent and hence requested its consultant G & C to initiate the process of purchasing a 2 BHK flat at the project measuring about 1340 sq.ft. for a sum of Rs.26,13,000/-, in other words at a price of Rs.1950/- per sq.ft., based on the terms and conditions imposed by the Opponent, the complainants were forced to pay to the Opponent a sum of Rs.7,37,500/- as an down payment for purchasing the apartment and the advance payment was made by the complainants to the Opponent  by way of cheques bearing No.483819 for Rs.3,37,000/-                                 dt.03/01/2007 and Cheque No.483820 for Rs.4,00,000/- dt.08/01/2007 drawn on CITI Bank. The Opponent on receiving the advance payment issued receipts dt.04/01/2007, after the receipt of the advance payment from the complainants the Opponent proceeded to issue an allotment letter dated 27/01/2007 to the complainants evidencing the receipt of the advance payment and also the confirmation of the booking of the apartment.  The allotment letter dt.27/01/2007, clearly records that the allotment of the apartment was done at a rate of Rs.1,950/- per sq.ft. and complainants were also sold a covered car parking space for a sum of Rs.1,50,000/- in the project complex.  At the time of receiving advance payment from the complainants, the Opponent promised to execute the agreements, the terms and conditions of which would be reflective of the obligations that had been encompassed between the complainants and the opponent.

3. The Opponent thereafter communicated to the complainants that in order to fulfil the requirements of purchasing the apartment, the complainants would be required to pay requisite stamp duty for execution of the agreements and other necessary documents, the stamp duty to be paid for execution of the agreement in the name of the complainants were calculated on the basis that the purchase consideration for the flat was of Rs.26,13,000/-. Believing the Opponent, the complainants through G & C vide cheque bearing number 831764 dt.05/01/2014 for an amount of Rs.1,42,630/- drawn on HDFC bank made a payment to the Opponent towards stamp duty payable on the execution of the agreements.
4. Based on the assurance of the Opponent that the Agreements would be executed, and the project would be commence in 10 months time, the complainants by taking huge financial pains somehow managed to pay the advance payment and stamp duty amount, however, to the utter shock and dismay of the complainants the Opponent failed to execute Agreements as promised.  The complainants and its representative G & C, repeatedly pleaded time and again with the Opponent to execute the agreements, but the Opponent misusing its superior position in the transaction deliberately never executed the agreements and thereby made huge financial gains at the cost of the complainants and till date have not executed the agreements nor have they even commenced construction of the project. Despite the receipt of the payment for stamp duty for the execution of the agreements, the Opponent again demanded that payment be made for the stamp duty, G & C through a letter dt.13/12/2013 informed the Opponent that the complainants had already made required advance payment and the stamp duty.  Despite the clarification by the complainants that the Stamp duty had already been paid, the Opponent failed to execute the agreements and despite the various attempts made by the complainants through telephonic means, e-mails and letters to execute the agreements, the Opponent failed to do so. The opponent deliberately never replied to the e-mails/phone calls of the complainants, further, suddenly one day, the Opponent sent an e-mail dt.07/03/2014 calling upon the Complainants to pay additional amount for the purchase of the apartment as per the revised rate of Rs.2,200/- per sq.ft., the opponent further flatly refused to execute the agreements at the original agreed price of Rs.1,950/- per sq. ft. and frivolously stated that the agreement would be executed at a price of Rs.2,200/- per sq. ft.  The Opponent further threatened the complainants that if the additional payment as per the revised rate of Rs.2,200/- per sq. ft. is not made the Opponent would not execute the agreements. Further, the Opponent had made representations to the complainants at the time of receiving the advance payment that the construction of the project would commence in 10 months in the year 2006, however, it has been almost seven years since that representation has been made and no progress has taken place with regards to the construction of the project even though they had received the advance payment almost seven years ago. When the opponent was approached by the complainants to enquire about the progress of project, the Opponent again demanded additional payment. The opponent having failed to execute the agreements and having made outrageous demands for additional payments from the complainants, left the complainants with no other choice other than to pursue legal remedies available to him under the law. The complainants also issued a legal notice dt.19/07/2014 calling upon the Opponent to repay the advance payment along with an interest calculated at a rate of 24% p.a.  The opponent in response dt.20/08/2014 to the legal notice denied all the claims made by the complainants and alleged that the complainants had not paid the full booking amount, which was calculated at 25% of the value of the apartment. It is to be noted that the advance payment of Rs.7,37,000/- paid by the complainants was in excess of the 25% of the value of the apartment which was only Rs.26,13,000/-.  The aforesaid facts clearly show that the Opponent had a premeditated intention to defraud and cheat the complainants by taking the advance payment and the stamp duty payment and not executing the agreements or even begin the construction of the project even after receiving the advance and stamp duty payment almost 07 years ago.  The actions of the opponent in rendering the housing construction services have been deficient and as such the complainants are entitled to adequate compensation and damages from the Opponent. Hence, this complaint.

5.    Even though, notice was served on the Opposite Party, Opposite Party fails to put their appearance, hence Opposite party is placed ex-parte.

6. In support of the complaint the Power of Attorney holder of the complainants Mr.Sridhar.K has filed his affidavit by way of evidence and closed his side.  Heard the arguments of the complainants.

7. The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party?

2. If so, to what relief the Complainant is entitled?

8. Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):-As per the final Order

REASONS

9. POINT NO.1:- On perusing the pleadings along with documents produced by the Complainants, it reveals that the Opposite Party is a Company engaged in the business of developing and constructing residential apartments.  In the Year 2006, the Opposite Party purchased a residential project by the name of “Skyline Orange Country” which was later renamed as “Skylilne Exaultus”. The Complainant agreed to purchase a 2 BHK flat measuring 1340 sq.ft for a total sum of Rs.26,13,000/- on the terms and conditions imposed by the Opposite Party, the Complainants were paid a sum of Rs.7,37,500/- as an advance for the purchasing apartment through Cheque bearing No.483819 for Rs.3,37,000/- dt.03/01/2007 and Cheque No.483820 for Rs.4,00,000/- dt.08/01/2007 drawn on CITI Bank. The Opposite Party issued an allotment letter dated 27/01/2007 to the complainants.  The Opposite Party thereafter communicated to the Complainants that inorder to fulfill the requirements of purchasing the apartment, the Complainants would be required to pay the requisite stamp duty to be paid for execution of the agreements.  The Complainants paid through G & E vide cheque bearing No.831764 dt.05.06.2014 for an amount of Rs.1,42,630/- drawn on HDFC Bank.  Even this fact further supported by statement of account.  The Opposite Party promised to commence the project in 10 Month’s time.  To substantiate this fact, the Complainants filed their affidavit.  In their sworn testimony, they have reiterated the same and also in support of their sworn testimony, they produced application form, copy of receipts, Allotment Letter, letter dt.05.06.2012, copy of Opposite Parties emails, copy of Opposite Parties reply letter.  By looking into these documents, it clearly shows that the Complainants paid advance sum of Rs.7,37,500/- through cheque for purchase of apartment in Opposite Parties project named “Skyline Orange Country” which was later renamed as Skyline Exaultus”.  The Opposite Party issued receipts for receiving advance amount.  After receiving advance payment the Opposite Party issued allotment letter dt.27.01.2007 to the Complainants.  It has been almost 7 Years since that representative has been made and no progress has taken place with regards to the construction of project, even though the Opposite Party had received the advance payment.   The Complainants approached the Opposite Party and requested to execute the agreement.  But the Opposite Party failed to execute the agreement.  On 07.03.2014 the Opposite Party sent an Email calling upon the Complainants to pay additional amount for the purchase of the apartment as per revised rate of Rs.2,200/- per sq.ft.   The Opposite Party further refused to execute the agreement at the original agreed price of Rs.1,950/- per sq.ft. Therefore, on 19.07.2014 the Complainants issued a Legal Notice to the Opposite Party.  In response on 20.08.2014 the Opposite Party send reply to the said notice denied all the claims made by the Complainants and alleged that the Complainants had not paid the full booking amount, which was calculated at 25% of the value of the apartment.  But by looking into the receipts issued by the Opposite Party, the Complainants have paid Rs.7,37,000/-, i.e., in excess of the 25% of the value of the apartment which was only 26,13,000/-.  The Complainant made email correspondences to Opposite Party.  By all these, it is very clear that the Opposite Party failed to execute agreement or even begin the construction of the project even after receiving the advance amount ie., 25% of the value of apartment and stamp duty from the Complainants.  This evidence also remains unchallenged.  Therefore, from the evidence available on record, it clearly goes to show that the Opposite Party neither execute the agreement nor begin the construction of the project.  Due to this the Complainant had to incur a loss and mental agony.  If at all the Opposite has execute the agreement or begin the construction of the project, the Opposite Party ought to have produced relevant evidence.  But there is no such evidence.  Therefore, it is proper to accept the contention of the Complainant that the Opposite Party has neither begin the construction of work or execute the agreement nor refund the advance amount to the Complainants.  To disbelieve the version of the Complainants, nothing was on record.  In spite of repeated requests, the Opposite Party never bothered to fulfill the demand of the Complainants.  Thereby, this clearly shows that there is deficiency in service on the part of the Opposite Party.  Hence, this point is held in affirmative. 

10.  POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency in service by the Opposite Party.

The Opposite Party is directed to refund a sum of RS.7,37,500/- and Rs.2,750/- being stamp duty amount along with interest at the rate of 15% p.m.

The Opposite Party is further directed to pay a sum of Rs.50,000/- to the Complainant as compensation for the mental agony.

The Opposite Party is also directed to pay a sum of Rs.5,000/-towards cost of this litigation to the Complainants.

The Opposite Party is granted 30 days time from this date to comply this Order.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 24^th day of May 2017 )

        MEMBER                                              PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Mr.Sridhar K, who being the Power of Attorney Holder of the Complainants has filed his affidavit.

 List of documents filed by the Complainants:

1. Copy of Special Power of Attorney

2. Copy of Application Form

3. Copy of the receipts

4. Copy of Allotment Letter dt.27^th January 2007

5. Copy of the Letter dt.5 June 2012 and its Annexures

6. Copy of the Opponent’s email dt.28 October 2013

7. Copy of the Opponent’s email Opponent                             

    dt.13 November 2013

8. Copy of the email dt.07 March 2014

9. Copy of the email from the Opponent

10. Copy of the Legal Notice

11. Copy of the Opponent’s Reply dt.20 August 2014.

Witness examined on behalf of the Opposite Parties:

                             Nil

List of documents filed by the Opposite Party:

                             Nil

          MEMBER                                                                PRESIDENT