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

DATED 02^ND DAY OF DECEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to refund the amount of Rs.2,00,000/- to the complainant along with 18% interest from the date of payment
2. Direct the OP to pay Rs.15,00,000/- for the mental agony caused to the complainant by the OP.
3. Direct the OP to pay Rs.25,000/- towards the litigation cost.
4. Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

It is the case of the complainant that he being attracted by the advertisement given by the OP for purchase of residential site has approached the OP for the purchase of the site measuring 30 X 40 feet developed at Max-Orchids, Phase-III, situated at Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk.  When the complainant personally visited the said residential layout the OP has convinced him to purchase a residential site. Hence the complainant agreed to purchase site bearing No.195 for the sale consideration of Rs.6,60,000/- at the rate of Rs.1,200/- per sq. feet.  

3. It is further case of the complainant that he has entered into the sale agreement with the OP to purchase the residential site which has been developed by the OP.  Accordingly the complainant paid the advance amount to the OP as mentioned below.  He has paid Rs.50,000/- by way of cheque dated 03.01.2014 and another Rs.50,000/- on 28.07.2014 by way of cheque and Rs.1,00,000/- by way of cheque and the balance amount due as on date of sale agreement was only Rs.4,60,000/-.

4. It is further case of the complainant that as per clause 4.4 of the sale agreement from the date of sale agreement the OP have applied for change of land use and also for conversion of said lands in which the schedule site is proposed to be formed and shall get the layout plan sanctioned from the concerned authority within 36 months.  The OP has also promised to develop the residential sites by providing amenities like tar road, water connection to individual sites, sewage, drainage, electricity, compound wall, club house, children park will be provided in the layout.  Unfortunately the OP has not discharged their part of the duty as per the agreement and have not fulfilled the promise and comply the clause mentioned in the agreement.

5. It is further grievance of the complainant that as per the sale agreement clause 3 time for completion speaks about OP ought to have complete within 18 months from the date of agreement.  Even after completion of four years the OP have not registered the sale deed, though the complainant is ready to pay balance amount of Rs.4,60,000/- and even he has submitted his readiness and willingness to purchase the said site.  

6. It is further grievance of the complainant that he had sent an email on 10.05.2016 to the OP mail ID and requested the OP to cancel the booking for purchase of site No.195 and return the advance amount of Rs.2,00,000/- paid to them.  As per the request of the complainant through mail dated 18.11.2017 the OP has promised and informed the complainant that the matter have taken on high priority and they will register the complainant plot on or before 31.12.2017 and if fail in the said period they will refund the sale consideration amount in the installment basis of Rs.50,000/- every month. The OP has not turned up to register the site or refund the balance amount from the last four years. Since the time has been lapsed the complainant without any remedy issued notice to the OP on 08.09.2021 calling upon the OP to refund the advance amount of Rs.2,00,000/- with 18% interest and also damage of Rs.15,00,000/- towards the same within 15 days from the date of the receipt of the notice.  But the OP failed to answer the legal notice. Hence the complainant has filed this complaint.

7. After filing of the complaint, notice was issued to the OP.  The OP has appeared before this Commission through their counsel and they have not filed the version.

8. The complainant has filed his affidavit evidence and got marked Ex.P1 to P8.  The OP has not adduced any evidence.

9. Both the complainant and OP have not submitted any arguments. Perused the evidence and documents.

10. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

11.   Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

12.    Point No.1 AND 2: Perused the complaint and the evidence adduced by the complainant. The complainant has claimed the refund of advance amount of Rs.2,00,000/- paid to the OP for purchase of the plots in view of the agreement entered between them as per Ex.P1 dated 24.01.2015.  The complainant has paid the amount of Rs.2,00,000/- by way of cheque on 03.01.2014, Rs.50,000/- and Rs.50,000/- on 28.07.2014 and Rs.1,00,000/- on 20.10.2014. The balance amount due for the OP as on the date of sale agreement was only Rs.4,60,000/-.  The complainant agreed to purchase the flat for Rs.6,60,000/- i.e., at the rate of Rs.1,200/- per sq. feet and the site measuring 1200 sq. feet.  

13.     As per the clause 4.4. of the agreement the OP has to form the layout and get the layout plan sanctioned from the concerned authority within 36 months.  As per the clause 3 of the sale agreement Ex.P1 the OP ought to have completed the project within 18 months from the date of agreement.

14.     When the OP has not completed the said formation of layout even after completion of four years and he has not come forward to register the sale deed, the complainant has demanded the OP for refund of the amount.  

15.     Again the complainant on 10.05.2016 requested the OP to cancel the booking and return the amount of Rs.2,00,000/-.  At that time the OP has promised and informed the complainant that he will allot the plot and register the sale deed on or before 31.12.2017 and if he fail to allot the site then he will refund the sale consideration in installment basis of Rs.50,000/- every month. When the OP has not come forward either to allot the site or to refund the amount even after lapse of four years the complainant without having any alternative has filed this complaint after issue of notice to the OP.  The complainant has also produced the copy of the booking form as Ex.P2 and also mail sent to the OP for refund of the amount as Ex.P3 and the reply made by the OP stating that he will register the plot on or before 31.12.2017 as Ex.P5.  The complainant has also sent copy of legal notice dated 08.09.2021 with copy of postal receipt.

16.     The evidence of the complainant and Ex.P1 to P5 and the other documents produced by the complainant remained unchallenged.  Even though the OP has appeared before this Commission through their counsel has neither filed the version nor adduced any evidence and they have not denied the allegations made in the complaint and the evidence.  

17.     Under these circumstances it is clear that the complainant has entered into an agreement with the OP for purchase of flat by paying an advance amount of Rs.2,00,000/-.  The OP neither completed the layout formation nor executed any registered sale deed in favour of the complainant even though the complainant is ready to get the sale deed register by paying the balance amount of Rs.4,60,000/-.  The complainant has waited for more than four years by believing the version given by the OP.  When the OP has failed to perform his part of the agreement he has approached before this Commission by filing this complaint.  The OP without forming any layout has collected the substantial amount from the complainant by giving false assurance to the complainant that he will form the residential layout and allot the site.  The OP has neither allotted the site nor refunded the advance amount and thereby committed deficiency of service and unfair trade practice.  Hence the complainant is entitled for refund of the amount with interest and also compensation for mental agony and for litigation expenses. The complainant is entitled for refund of Rs.2,00,000/- with 10% interest from the date of complaint.

18.     The complainant has claimed a compensation of Rs.15,00,000/- for the mental agony and other financial losses and also claimed Rs.25,000/- towards litigation expenses, which are highly exorbitant. Hence we have restricted the award of compensation of Rs.50,000/- and litigation expenses to Rs.10,000/-.  Hence we answer point No.1 in affirmative and 2 in partly affirmative.

18.     Point No.3:- In view the discussion referred above,

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund Rs.2,00,000/- along with interest at 10% per annum from the date of complaint till the date of realization.
3. OP is further directed to pay a sum of Rs.50,000/- towards compensation and Rs.10,000/- towards litigation expenses to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.2,00,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 2^nd day of DECEMBER, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL