Date of Filing: 14/05/2015
Date of Order: 25/05/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This the complaint filed U/s. 12 of CP Act alleging the deficiency in service on the part of O.P and prays for direction to the O.P to pay a sum of Rs. 2,75,000/- along with interest at the rate of 18 % per annum and to pay Rs.1,00,000/- for suffering hardship and in conveyance.
2. The brief fact of the complaint is that the complainant intended to purchase the site property and approached the O.P and after negotiation, the O.P assigned the complainant the sites bearing No.177 and 62 measuring 30X40 feet each and totally measuring 2400 sq. Ft in the proposed layout formed by the O.P in survey No. 21/B2 measuring 1 acres 20 guntas in survey No.19 measuring 4 acre 20 guntas situated at Margondanahally village, Kundana Hoblie, Devanahalli Bangalore Rural District. The sale consideration for the said site properties was fixed Rs.9,24,000/- accordingly complainant initially paid Rs.4,68,000/- through cheques on different dates as an advance amount in order to said property. The O.P promised to registered the sale deeds within 6 months from the date of agreement of sale but the O.P failed to registered sale deed as promised, ultimately O.P agreed to refund the amount paid by the complainant and accordingly O.P paid Rs.1,93,000/- only and for remaining amount issued 5 cheques and each cheque consisting of Rs.55,000/- to be drawn on Kotak Mahindra bank. Thereafter complainant presented the said cheques for encashment but the said cheques were dishonoured for not having sufficient fund in the account maintained by the O.P. Hence the complainant intimated the O.P regarding the dishonoured cheque but the O.P issued the intimation letter dated 17.02.2014 stating that they confirmed to refund the amount of Rs.2,74,000/- within second week of March 2014 which was paid towards the booking of the above said flats in their project Max Marvel.
3. Complainant states that he being a service man and he has invested his hard earned money to purchase the sites but the attitude and conduct of the O.P made the complainant to suffer both mentally and economically by wasting his precious time. Hence alleged that O.P has not rendered fair service to the complainant, inspite of consuming more than a five full years to registered the sale deeds and hence complainant sustained loss of Rs.5,000/- to 10,000/- towards travelling and other expenses to approach the O.P. Further complainant also got issued the legal notice and inspite of service of notice on the O.P but the O.P did not choose to respond to it nor came forward to refund the amount. Hence this complaint.
4. Upon issuance of notice, O.P appeared through its counsel and filed its version. In the version it is contended that complaint is not maintainable either in law or in facts and hence contended to dismiss the complaint. Further it is admitted that complainant had booked residential sites bearing No.177 and 62, site No.177 measuring east to west 40 F and north to south 30 feet measuring 1200 sq. feet and site No.62 measuring east to west 40 F and north to south 30F measuring 1200 sq. feet both sides total measuring 2400 sq. feet formed in Max–Marvel project and the sale consideration for the said sites was fixed for Rs.9,24,000/-. It is also contended that the complainant by paying Rs.4,68,000/- and the complainant executed the booking form on 14.02.2011 and agreed to pay the balance amount at the time registration sites. Further O.P contended that later complainant approached the O.P seeking refund of the amount along with interest and to cancel the booking of sites and the O.P after considering the representation of the complainant has issued a intimation letter dated 17.02.2014. Further O.P contended that as per the booking form terms and conditions the refund of the booking amount will be done after 30 working days from the date of cancellation and cancellation without valid reason, 15% of the booking amount will be deducted towards service and transport charges. Further O.P contended that he has already paid Rs.1,93,000/- and remaining amount of Rs.2,75,000/- paid through 5 cheques and the O.P has assured the complainant that there is sufficient fund in the account and asked the complainant to present those cheques but complainant informed the O.P that all cheques are dishonoured as funds insufficient in the account maintained by O.P but the O.P denies the allegations made in the complaint. Further O.P had issued the intimation letter to the complainant dated 17.02.2014 stating that, hereby confirmed to refund the amount of Rs.2,74,000/- paid towards booking of the said plots and the O.P has many times informed the complainant and asked him to come to the office to collect the amount but the complainant did not agree and filed this false complaint. As per the booking terms and conditions in case of cancellation of booking by purchaser, the O.P shall not pay any interest and the complainant at the time of booking form has understood the terms and conditions. It is submitted that O.P is ready to refund booking amount paid by the complainant. Ultimately O.P denying all other allegations of the complaint and hence prays for dismissal of the complaint.
5. In order to substantiate the case, the complainant and O.P filed their affidavit evidence. Also we heard the arguments.
6. On the basis of the pleadings of the parties, the following points will arise for our consideration is:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.P?
(B) Whether the complainants is entitled to
the relief prayed in the complaint?
(C) What order?
7. Our answers to the above points are:-
POINT (A) & (B): In the affirmative
POINT (C): As per the final order
for the following:
REASONS
POINT No.(A)& (B):-
8. On perusal of the pleadings of the parties it is not in dispute that the complainant with an intention to purchase site properties approached the O.P. Further it is also not in dispute after negotiation the sale consideration for the two sites properties was fixed for properties Rs.9,24,000/- and accordingly the complainant booked the two site properties by executing booking form and paid Rs.4,68,000/- to the O.P. It is not in dispute that the complainant approached the O.P and demanded to refund the amount paid to the O.P.
9. The complainant alleges that the O.P promised to registered the sale deeds within 6 months from the date of agreement of sale but the O.P failed to registered sale deed as promised, ultimately O.P agreed to refund the amount paid by the complainant and accordingly O.P paid Rs.1,93,000/- only and for remaining amount issued 5 cheques and each cheque consisting of Rs.55,000/- to be drawn on Kotak Mahindra bank. Thereafter complainant presented the said cheques for encashment but the said cheques were dishonoured for not having sufficient fund in the account maintained by the O.P.
10. Per contra O.P contended that as per the booking terms and conditions in case of cancellation of booking by purchaser, the O.P shall not pay any interest and the complainant at the time of booking form has understood the terms and conditions. Further O.P submitted that he is ready to refund booking amount paid by the complainant.
11. On perusing the affidavit evidence and version filed by the O.P not whispered anything about the issuing of cheques and dishonoured of the same. Further the O.P not specifically denied that he has failed to execute the registered the sale deed within 6 months as promised. However, it is not in dispute that the O.P refunded Rs.1,93,000/- to the complainant but the O.P did not paid the remaining amount till filing of the complaint and it shows that O.P’s deficient in its service and it is not accepted that though O.P are ready to pay the remaining balance amount to the complainant but the complainant did not collect the same. Whereas O.P fairly admitted they are ready to refund the amount to the complainant as per the terms and conditions of the booking form. It is worth to note that, the O.P did not place any cogent evident why the project was not completed as promised to the complainant and in the absence of the cogent evidence the contention of the O.P cannot be sustainable in the eye of law. It is an admitted fact that the complainant paid huge amount paid Rs.4,68,000/- to the O.P. but the O.P refunded only Rs.1,93,000/- and the remaining amount is with the O.P is only for no reasons. The complainant demanded to refund of the amount against the non-commencing and completing the project well in time and hence it becomes the reason sought for refund of the amount. Therefore, in our view if the complainant invested his hard earned money in any nationalized bank the money would earn interest on the said amount. Under the circumstances we deem it just and proper to direct the O.P to pay remaining balance amount of Rs.2,75,000/- along with interest at the rate of 12% per annum from the date of payment till realization of the amount to the complainant and also to pay Rs.2,000/- towards the cost of the proceedings and it will meets the ends of justice. Accordingly we answered these points in the Affirmative.
POINT No. (C):-
12. On the basis of answering the Points (A) & (B) in the Affirmative, we proceed to pass the following:-
ORDER
1. The complaint is allowed in part with cost.
2. The O.P. i.e. M/s. Maxworth Realty India Limited Represented by its Chairman and Managing Director is hereby directed to pay an amount of Rs.2,75,000/- along with interest at the rate of 12% per annum from the date of payment till realization of the amount to the complainant.
3. Further O.P is hereby directed to pay Rs.2,000/- towards cost of the proceedings.
4. The O.P. is hereby directed to comply the order of this Forum within 30 days and to submit the compliance report within 45 days from the date of receipt of this order.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 25th Day of May 2017)
MEMBER MEMBER PRESIDENT
*SG
