Karnataka

Bangalore 4th Additional

CC/833/2016

Mrs. Monalisa Pradhan - Complainant(s)

Versus

M/s. Maxworth Realty India Limited - Opp.Party(s)

Chandra Naik. T

12 Oct 2018

ORDER

Complaint filed on: 15.06.2016

                                                      Disposed on: 12.10.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027    

 

 

CC.No.833/2016

DATED THIS THE 12^th  OCTOBER OF 2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Mrs.MonalisaPradhan, W/o Saroj Kumar Jena, Aged about 30 years, R/at Seshadri House, 493-A, 1st ‘C’ Cross, 3rd Main, Mathikere Extension, Bangalore.   By.Adv.ChandraNaik.T.		M/s Maxworth Realty India Ltd., A Company registered under the Companies Act, having its Registered Office at No.22/1, Railway Parallel Road, Near Shivananda Circle, Nehru Nagar, Bangalore-560 020. And Also at K.M.P. House, No.12/2,Yamunabhai Road, Madhavanagar, Bangalore-01 Rep by its Chairman & Managing Director, Shri.Kesava Kolar   By.Adv.Praveen B.C.

 

 

 

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the Opposite Party directing to refund Rs.1,62,000/- with interest at 24% p.a. from the date of its respective payment till the date of realization, to pay Rs.50,000/- towards travel expenses, mental agony and physical stress and strain suffered for the deficiency of service, to grant such other and further reliefs.

2.       The brief facts of the case of the complainant are that the OP being in the business of real estate, property development, construction etc., have appraised the complainant and requested her to buy a site in one of their project called “MAX ORCHID” being developed by the OP in the properties bearing Survey No.13/4, 13/6, 9/2 and other lands situated at Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District by obtaining necessary sanctions and permissions from the concerned authorities. The complainant submits that believing the words of the OP to be true, she has booked the plot bearing No.178 in the said project and on 27.11.2011 has paid the sum of Rs.1,62,000/- being the part of the agreed sale consideration by way of cheque bearing No.182341 dt.27.11.2011 drawn on State Bank of India, HMT Main Road Branch, which had been duly received, honored and acknowledged by the OP. The receipt issued by the OP for having received the said amount. Subsequent to the payment of the aforementioned amounts, she has requested the OP to furnish all relevant documents like title deeds, revenue documents, conversion orders, layout plans approved by the concerned authorities for enabling her to complete the transaction at the earliest, for verification of the marketable right, title and interest of the OP in the above properties, even after her repeated requests and demands, the OP has failed to furnish the documents to the complainant. Upon her persistent demands, the OP instead of executing the agreement of sale in favor of the complainant has executed the assignment agreement dt.19.12.2011 with respect to the plot bearing No.178 in the said project called “Max Orchids” and thereby agreed to furnish all the original title deeds, revenue records, survey records etc., pertaining to the composite lands as well as the copy of the sanctioned plan and license and also other documents and information to the complainant. Further, it was specifically agreed under the assignment agreement that the OP have entered into the agreements with the land owners for development of the composite properties mentioned in the assignment agreement and the same are still valid and subsisting and have agreed to get the deed/s of conveyance with respect to the aforementioned sites, directly from the land owners in favor of the complainant within six months from the date of execution of the assignment agreement. The complainant submits that it is already more than 4 years elapsed from the date of execution of the assignment agreement, the OP has failed to execute the sale deed in favor of the complainant by complying the terms of the assignment agreement, whenever the complainant visited the office of the OP and has requested the OP to furnish the documents for enabling her to verify marketable right, title of the OP on the properties where the said project is allegedly launched, the OP has been evading from the sight of the complainant. When the complainant failed to get any documents from the OP, during the month of August 2014, she has visited the office of the OP and requested the OP to furnish the documents and sanction plans for enabling her to complete the transaction, to her shock and surprise, it is brought to her notice that the OP have not at all developed the properties by obtaining the necessary sanction and permission from the concerned authorities and have collected the money from the complainant by giving false assurance of development of the lands. On coming to know the said fact of non-development of the property by the OP, she has sent several e-mails whereby requested the OP to complete the sale transaction at the earliest in terms of the assignment agreement or in the alternative to refund the amount paid by her along with applicable interest on the said amount for which on 16.11.2015, the OP has sent an reply e-mail intimating her, that her cancellation request is in progress and the amount paid by her will be refunded along with the applicable interest at the earliest, but failed to do so even after exchange of several e-mails between the complainant and the OP.  The complainant submits that it is already 4 years elapsed from the date of booking of the plots, whenever the complainant tries to contact the OP or meet them personally, the OP have been evading and escaping from the sight of the complainant. Since last 4 years all her attempts to contact the responsible persons and recovering the amount or execution of the sale deed is went in vain, as each and every time, the OP has assured to refund the amount with applicable interest, but failed to keep up their words. When she came to know that the OP has played fraud on her part, she has got issued the legal notice dt.5.4.2016 to the OP calling upon the OP to refund the amount collected from the complainant along with the applicable interest from the date of its respective payment and also to pay the damages suffered by her for the deficiency of service rendered by the OP. The notice issued to the one of the address of the OP has returned with the shara left and the notice addressed to the other address of the OP has been duly served on the OP. Even after service of the notice to the OP, the OP has failed to comply with the demands made in the said notice. The acts and deeds done by the OP in collecting huge amount from the complainant by giving false assurances of development of the properties and not complying with the terms of the assignment agreements amounts to unfair trade practice and deficiency of service on their part.The complainant has shelled out her hard earned money to the OP, believing their cajole, from the day of one of booking of the plots, she has been requesting the OP to comply with the terms of the assignment agreement or to refund the amount along collected with interest as aforementioned, which is her genuine and legitimate right. These illegal acts of the OP have caused untold miseries, inconvenience, injury, mental agony and physical stress to the complainant. Over and above, the OP has tried to cheat and deceive the complainant by making all false and frivolous assurances and showing the mirage of their project. Hence, the complainant left with no alternative has approaching this Forum for redressal of her grievance by way of this complaint. Hence, the complainant submits to allow the complaint.

3.       Notice was ordered issued to the Opposite Party. The Opposite Party did appear and filed the version. The sum and substance of the version filed by the Opposite Party are that the complaint is not maintainable either in law or on facts. The complaint is vexatious and frivolous in nature. The Op stated that the OP have planning developed the Max Orchids situated at Dyavarahalli Village Kundana Hobli, Devanahalli Taluk, Bangalore Rural District and the complainant had booked site in the said project site No.178 measuring east to west 40 feet and north to south 30 feet, totally 1200 sq.ft. The OP stated that the said project of change of land use has been completed and now applied for approvals hence the OP has offered alternative site in the other project which are developed completely but complainant was not response for the same and the OP was ready to pay the advance amount to the complainant. The OP already had applied for approvals before the authorities and it is delaying because of internal issues of the authorities not issues of the OP and OP has nothing to do with it, this delay is not intentional one of the OP. This is purely procedural delay of the authorities not the OP, the OP cannot fix the time and day of the approval naturally it will take some more time than agreed. Incase of delay, site value gradually will increase than booking amount, the complainant benefited by this and the OP is not cancelled the booking. Due to delay, the complainant will be benefitted and even though project is delay land value gradually increase, but the OP is not increasing the price of the site, it remain the same rate as per the booking form, hence giving compensation would not arise. On these grounds and other grounds, prays for dismissal of the complaint.

4.       The Complainant to substantiate her case, filed her affidavit evidence and got marked as Ex-A1 to A6.The Opposite Party has filed the affidavit evidence. The Complainant as well as Opposite Party has filed their written arguments. Heard both sides.

          5. The points that arise for our consideration are:

1) Whether the Complainant proves the deficiency in service on the

      part of the OP, if so, whether she is entitled for the relief sought

      for?

2) What Order?

                  

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

Point No.1 :Affirmative

Point No.2 : As per the final order for the following

 

REASONS

7. POINT NO.1:    We have briefly stated the contents of the complaint as well as the version of the Opposite Party. It is not in dispute that the complainant has booked the plot bearing No.178 in the said project called “Max Orchids” on 27.11.2011 and paid an amount of Rs.1,62,000/- being the part of the agreed sale consideration by way of cheque bearing No.182341 dt.27.11.2011 drawn on State Bank of India, HMT Main Road Branch which has been duly received, honored and acknowledged by the OP. In this context, the OP has placed reliance on the contents of the receipt marked under Ex-A1.

8.       The OP by way of filing the version did not deny the sale agreement entered into with the complainant and received an amount of Rs.1,62,000/-. The only contention taken by the OP is that the said project of change of land use has been completed and now applied for approvals hence the it has offered alternative site in the other project which are developed completely but complainant was not response for the same and the OP was ready to pay the advance amount to the complainant. This pleading itself goes to show that the said project is not yet completed in the stipulated time. Under such circumstances, the complainant has no other go except to seek for the refund of the amount.

9.       It is settled proposition of law as laid down by the National Commission in ‘EMAAR MGF Land Ltd., &Anr. V/s AmitPuri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund. In the instant case, the Complainant has sought for refund of the amount.

This decision again followed by NCDRC in the decision reported in 2018 (1) CPR 436 (NC) in the case of Vatika Limited., V/s ShaleenChugh and Anr. Wherein the important point is stated as under:

The act of the Petitioner in not refunding the amount deposited by the Complainants despite not having completed the project on time and further not even having communicated the promised date of delivery of possession, amounts to deficiency in service.

Further, in the decision reported in 2018 (1) CPR 237 (NC) in the case of Pradeep Gupta and Ors. V/s Unitech Hi-Tech Developers Ltd., wherein it is held as under:

Consumer Protection Act, 1986-Section 21-Real Estate-Booking of residential flat-Denial of possession despite payment-Complainants are seeking refund of entire amount paid by them along with compensation in form of interest-Opposite Parties shall refund entire principal amount to Complainants along with compensation in form of 10% simple interest-Opposite Parties shall pay Rs.25,000/- as cost of litigation in each complaint.

Further in another decision reported in I (2015) CPJ 107 (Del.) in the case of SandeepLohia, Ashwini Kumar Lohia, Jitesh Kumar Lohia V/s Parsvnath Developers Ltd., wherein it is held as under:

      Consumer Protection Act, 1986-Sections 2 (1)(g), 2 (1)(r), 14(1)(d), 17-Housing-Flat Buyer Agreement-25% of total value of flat deposited-Provisional allotment letter issued-Non-delivery of possession-Deficiency in service-Unfair trade practice-Development at the site shows that no money was invested by OP-Complainants have placed on record the photographs of site along with copy of recent newspaper publication showing that only foundation of tower had been constructed-OP has been making misuse of buyers’ hard earned money-OP is guilty of breach of contract-Refund of principal amount along with interest @ 18% p.a. directed to each of Complainant-compensation @ Rs.4.5 lacs awarded for mental agony, anguish and frustration- litigation cost @ Rs.2 lacs awarded-directions issued.

10.     The OP has taken specific contention stating that the complaint is barred by limitation since the complainant has not filed the complaint within 2 years from the date of entering into an agreement. In this context, the complainant submits that inspite of the frequent visits, the OP did not fulfill the demands of the complainant and at last on 5.4.2016 legal notice has been issued. From that date, the complainant has filed the complaint within 2 years. We find there is a considerable force in the contention taken by the complainant in the light of decision reported in Hon’ble National Commission in the case of Sameer Dewan V/s Unitech Limited., reported in 2018 (3) CPR 338 (NC) wherein it is held that denial of possession of apartment despite payment is a case of continuing cause of action. Hence, in the light of the decision cited supra, we come to the conclusion that the contention taken by the OP that the complaint filed by the complainant is barred by time has no legs to stand.

11.     The OP has admitted that they are ready to refund the booking amount of Rs.1,62,000/-. The stand is taken only after the institution of this complaint, but not to show the response to refund the said amount and the complainant has approached the OP as stated in Para-15 of the complaint. Under such circumstances, by way of compensation imposing at the rate of 10% from the periodical payment of Rs.1,62,000/- with compensation of Rs.5,000/- so also litigation cost of Rs.5,000/-, we hope ends of justice would meet sufficiently. Accordingly, this point is answered in the affirmative.

12.     POINT NO.2: In the result, we pass the following:

ORDER

The complaint filed by the Complainant is allowed. The OPs are directed to pay an amount of Rs.1,62,000/- to the Complainant with interest at the rate of 10% p.a. from the date of periodical payment to till its realization.  Further, the OPs are directed to pay an amount of Rs.5,000/- being compensation so also litigation cost of Rs.5,000/-.

The OPs are directed to comply this order within 6 weeks from the receipt of this Order. Failing which, the Complainant is at liberty to take proper steps as per law.

Supply free copy of this order to both the parties.

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 12^th October 2018).

(ROOPA.N.R)     MEMBER

(S.L.PATIL) PRESIDENT

 

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

Mrs.Monalisa Pradhan., who being the Complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Booking form dt.27.11.2011
Ex-A2	Assign agreement dt.19.12.2011
Ex-A3	Mail conversation to the OP
Ex-A4, A4(a) to A6	Legal notice dt.5.4.2016 and postal receipts and acknowledgements and returned postal acknowledgement

 

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

 

Roopesh Sulegai, Deputy General Manager., who being the Opposite Party was examined.

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL) PRESIDENT