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

 8^th DAY OF NOVEMBER 2021

O R D E R

SMT. P.K.SHANTHA

1. The complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 against the Oppoiste party (herein after referred as OP) with a prayer to direct the OP to refund the complainant a sum of Rs.1,98,664/- (Rupees one lakh ninety eight thousand six hundred and sixty four only) collected from the complainant together with the interest at 24% p.a. from the date of its respective payments till the date of realization, direct the OP to pay a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) towards travel expenses, mental agony and physical stress and strain suffered by the complainant for the deficiency of service on the part of OP, grant such other and further relief as the Hon’ble Commission deems fit under the circumstances of the complaint, in the interest of justice and equity.

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

The OP being in the business of real estate, property development, construction etc., and have appraised the complainant that the OP has developed properties in and around Bangaore and formed a residential layout under the name and style “Max Orchards – Phase III” curved out of land bearing survey No.17/5 and others all situated at Dyavarahalli village, Kundana Hobli, Devenahalli Taluk, Bengaluru Rural District by obtaining necessary sanction and permissions from the concerned authorities. 

During the month of June 2014, some of the marketing executives of the OP has approached the complainant and convinced her to purchase residential site bearing plot No.482 in the said project.  The complainant who was intending to own residential site in and around Bangalore has agreed to purchase the above said plot for a valuable sale consideration of Rs.6,60,000/- (Rupees six lakhs sixty thousand only).

In view of the said agreement, the OP has collected a sum of Rs.1,98,664/- (Rupees one lakh ninety eight thousand six hundred and sixty four only) from the complainant being the part of the agreed sale consideration.  The said amount has been paid as per the table depicted hereunder:-

The above amount has been paid by the complainant by way of cheques all drawn on Central Bank of India, Kempapura Branch, the OP has acknowledged the receipt of the said amount in the agreement of sale executed by it.

Subsequent to the payment of the aforementioned amounts, she has requested the OP to furnish all the relevant documents like title deeds, revenue documents, conversion orders, layout plans approved by the concerned authorities for enabling her to complete the transaction as the earliest, for verification of the marketable right, title and interest of the OP in the above project, even after her repeated requests and demands for the reason better known to the OP, the OP has prolonged the process of furnishing the documents on the ground that, the documents can be furnished only after execution of the necessary agreements without furnishing the documents to the complainant as sought by her, the OP has executed the agreement of sale dated 19.06.2014 with respect to the above site in favour of the complainant stipulating the terms and conditions of sale, under clause 8 of the agreement of sale, it was specifically agreed by the OP that, the OP will be developing the properties by providing the amenities like Tar road, water connection to individual sites, sewage, drainage, electricity, compound wall, club house, children play area, it was specifically agreed and undertaken by the OP under the said agreement that the OP will be registering the sale deed of the above said plot in the name of the complainant within 18 months from the date of the agreement by fulfilling the other terms of the agreement of sale, the OP has failed to fulfil the terms of the agreement of sale and has failed to execute the sale deed in the name of the complainant by developing the same and prolonged the process of registration of the sale deed keeping reasons ahead.

The OP failed to fulfil its obligations, the complainant has personally visited the office of the OP during the month of December 2020 and has sought for development carried by the OP in the said properties.  When she visited the OP, to her shock and surprise that OP has not at all developed the property and has collected huge amount from the complainant by making false representations.  Upon coming to know that, the OP has not developed the land by securing necessary permission from the concerned authorities, the complainant has sought for refund of the amount paid by her along with the applicable interst.  On her request, the OP has promised that the refund will be made in accordance with the company Rules and Regulations.

It is already more than six years elapsed from the date of booking of the plots, whenever the complainant contacted the OP, the OP has been evading and escaping from the sight of the complainant. Since last 6 years all her attempts to contact the OP is went in vain, as each and every time the OP has assured to refund the same with applicable interest, but failed to keep up its promise.

When the complainant came to know that the OP has played fraud with the complainant with respect to the allotment and development of the property, she left with no alternative has issued the legal notice dated 17.03.2021 to the OP calling upon to refund the amount along with interest and damages, the said notice issued to the OP has been duly served on it on 19.03.2021, even receipt of the legal notice, the OP has failed to comply with the demands made in the said notice.

The OP has committed breach of trust, deficiency in service and had adopted unfair trade practice in the course of their dealings with the complainant with respect to the subject property.  The complainant having no other efficacious and alternative remedy has approached the Hon’ble Commission to redress her grievances.  Hence, this complaint.

3. After registration of the complaint, notice has been issued to OP.  After receiving notice, OP has appeared through the counsel and filed version.  The sum and substance of the version as follows:-

             Since the 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 complainant with respect to booking of site No.482 in “Max Orchards III” for total sale cost of Rs.7,38,000/- (Rupees seven lakhs thirty eight thousand only) and the complainant paid Rs.1,98,000/- (Rupees one lakh ninety eight thousand only) advance amount as denied as false.

             The OP is running real estate business and registered under companies Act.  The OP having acquired goodwill amongst other real estate company in all over India.  The OP is always ready and willing to execute the absolute sale deed in favour of the complainant either in the “Max Orchards III” project which are fully developed by obtaining government approvals but the complainant not ready to register when the complainant has violated the terms and conditions of booking form and he is not ready and willing to purchase the sites with full consideration to get absolute sale deed, the 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.,

             The complainant has claimed exorbitant interest, compensation and litigation expenses.

             The aforesaid reasons, the OP is not responsible for deficiency of service hence, the complaint is not maintainable.

             The complaint is barred by limitation of 6 years hence the complaint is not maintainable.     

4. In support of his complaint averments, Smt.Pavani Chatrati, who being the complainant in this case filed her affidavit by way of evidence reiterating the complaint averments and produced the docuoments which are marked as Ex.A.1 to Ex.A.9.
5. In support of its defence version, OP has not filed affidavit by way of evidence, in spite of giving sufficient time and opportunity.  In the absence of sworn testimony, we are unable to consider the defence version of the OP.  Heard the complainant’s counsel.

        6. The points that arises for our consideration are:

  7. Our answer to the above points:

REASONS

      8. Point No.1: We have perused the documents produced by the complainant.  Ex.A.1 is the agreement for sale dated 19.06.2014 issued by the OP with respect to the above said site in favour of the complainant, Ex.A.2 is the receipt No.BLR/14-15/1416 dated 12.06.2014 for Rs.47,000/-. Ex.A.3 is the receipt No.BLR/14-15/1713 for Rs.660/- issued by the OP to the complainant on 27.06.2014, Ex.A.4 is another receipt No.BLR/13-14/7280 for Rs.50,832/-  dated 29.01.2014, Ex.A.5 is another receipt No.BLR/13-14/7281 for Rs.50,832/- issued by OP to the complainant on 29.01.2014, Ex.A.6 is the legal notice dated 17.03.2021, Ex.A.7 is the postal receipt, Ex.A.8 is the track consignment and Ex.A.9 is the Bank statement of the complainant reflecting the payments made to the OP.

        9. We have perused the complaint averments, affidavit evidence and documents produced by the complainant.  From the above documents, it is crystal clear that complainant with an intention to purchase site, approached the OP and paid advance amount of Rs.1,98,664/- by way of cheques, all drawn on Central Bank of India, Kempapura Branch.  The OP has acknowledged the receipt of the said amount in the agreement of sale executed by it which has depicted from the documents Nos.Ex.A.1 to Ex.A.5. When the complainant came to know that the OP has played fraud with the complainant with respect to the allotment and development of the property, she left with no alternative has issued the legal notice dated 17.03.2021 to the OP calling upon the OP to refund the amount along with applicable interst and damages.  The said notice issued to the OP has been duly served on the OP on 19.03.2021, even after receipt of the legal notice, postal receipt and postal consignment delivered report and bank statement of the complanant reflecting the payments made to the OP produced and marked as Ex.A.6 to Ex.A.9.  OPs collected the amount from the cmplainant by giving false assurances and has failed to fulfil their part amounts to gross negligence and deficiency of service.  The complainant has suffered hardship, mental agony and financial loss due to the unfair trade practice of OP.

        10. From the available materials on record, it is crystal clear that OP having received a sum of Rs.1,98,664/- from the complainant in the year 2013-14, till date OP neither allotted the site nor refunded the amount in spite of service of notice.  The act and deeds of OP amounts to deficiency of service on its part, as it has collected the amount by giving false assurances of the development of the land into residential plots and has failed to fulfill their part of the contract of execution of the sale deed with respect to the developed property. We are satisfied that the complainant proved deficiency in service on the part of OP.  Under the circumstances, we are of the considered view that OP is liable to refund the advance amount of Rs.1,98,664/- (Rupees one lakh ninety eight thousand six hundred and sixty four only) to the complainant along with interest at 10% p.a. by way of compensation from the date of payment till realization and also direct to pay litigation cost of Rs.5,000/-. Accordingly, Point No.1 is answered 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. OP is directed to refund an amount of Rs.1,98,664/- (Rupees one lakh ninety eight thousand six hundred and sixty four 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. 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 8^th day of November, 2021).

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