Date of Filing: 16/08/2017

Date of Order: 30/03/2019

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 30^TH DAY OF MARCH 2019

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.2286/2017

V/s

ORDER

BY SRI.SURESH.D.MEMBER:

1.  This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (hereinafter referred to as O.Ps) alleging deficiency in service and to direct O.Ps to refund Rs.1,25,000/- with interest @ 24% from the date of payment till realization, and Rs.50,000/-towards damages and expenses for mental agony physical stress and to pass such other order as this Forum deems fit.

2.     The brief facts of the complainant case are that, O.P is  construction company and introduce the project under the name of “MAX SINDUR” situated at Avathi village and Gobbaragunte Village of Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District. The complainant wanted to purchase site/ plot No.174&464 measuring 1200 (30X40) Sq. feet at the rate of Rs.450/- per square feet. The complainant has paid Rs.1,25,000/- by way of cheque on different dates,  in favour of Ops  towards sale  consideration of the said  site/plot, where in, it was agreed to handover the possession of the schedule property within in stipulated time. O.Ps for one reason or the other, postponed the same with a view to drag on the formation and handing over the possession of the site/plot.  They have duped for Rs.1,25,000/-.  Complainant issued legal notice on 06.07.2017.  Inspite of issuing notice, O.P neither replied nor returned the amount and also not handed over the possession of the plot/site. Hence this complaint.

3.     Upon service of notice, O.P appeared before the Forum and filed its version contending that the complaint is not maintainable,  it is vexatious and frivolous to be dismissed. The complainant has paid only Rs.1,00,000/- to register the site in her name.   As per the terms and conditions of booking form, complainant has not paid 30% of sale consideration. Complainant ought to have paid 30% of the value of the site. Hence complainant has breached the contract. Further Op submits that they have explained to the complainant, if any delay is caused due to changes in the real estate policy of the state government, the approvals are delayed, he would give alternative site in the fully developed and approved project.

4.     The complainant has no interest to purchase the site. Further Ops state that they are always ready to allot site and also they reserved the booking site for the complainant. The complainant may get the absolute sale deed as per the general terms and conditions at any time.  The complainant himself violated booking and terms and conditions. On this ground only complaint is liable to dismissed. The complainant has not come forward to perform his part of contract and simply he is making wrong allegation against them.  There is no deficiency in service on their part. Op has also requested to get site alternatively in any of their other projects for which complainant did not agree.  The allegations made against them are all baseless and hence O.Ps prayed to dismiss the complaint.

5.      In order to prove the respective case, the complainant and O.Ps have filed their affidavit evidence reiterating the contents of the complaint and their version respectively.  Perused the documents produced by the complainant and O.Ps. Heard the arguments.

6.      On the basis of the above pleadings and evidence of the complainant and O.Ps, the following points arise for our consideration:-

                        1)   Whether the complainant has proved

      deficiency in service on the part of the

                      Opposite Part?

2)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT 1:         Affirmative.

POINT 2:         Partly in the affirmative  

                                as per the final order.

REASONS

ON POINT No.1:-

8.   The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint.  Besides she has also produced booking forms, receipts, Bank statement, copy of the legal notice and copy of the acknowledgement. Wherein it has agreed to sell the plot/site at the rate of Rs.450/- per sq. feet and  complainant paid Rs.1,25,000/- on different dates. Even after lapse of 6 and half years, OPs did not come forward to execute sale deed and to hand over the possession of the said property. Hence complainant issued legal notice on 09.07.2017 for which Op did not reply and he admitted that he had received only a sum of Rs.1,00,000/- denied having received of Rs.1,25,000/-. Further complainant has produced receipts for having paid of Rs.1,25,000/-.

9.     It is also clear from of the version filed by the Ops that they have not obtained permission from the government and there is delay in permitting to change the land for the purpose of formation of layout without the same have collected money from the complainant.   It becomes clear that O.P did not proceed to complete the project “MAX SINDUR” due to difference and inconveniences did not execute the sale deed.  In view of this, there is clear deficiency in the service. It is to be noted that the Op has taken the contention that it is always ready and willing to perform its part of contract. The very assertion does not hold any water. If it was ready to perform its part of contract it would have issued notice demanding payment of balance of money and demanded to get the sale deed registered.

10.     Further Op admitted in the version that complainant was informed that “MAX SINDUR” is getting delayed in the approval process.  It takes some more time to get the approval from concerned authorities and it has offered to get alternative site in the fully developed project, it becomes clear that the Op has not formed the site in the land for which complainant has booked the site which is clear violation of terms of agreement and deficiency in service.   Hence we answer Point No.1 in the affirmative.

ON POINT No. 2:-

11.   In view of our answer to Point No.1 in the affirmative, there is deficiency in service on the part of O.P and hence it is liable to refund the amount which it has received from the complainant i.e. Rs.1,25,000/- along with interest at 12% per annum. Due to inaction of the O.P in not returning the amount, the complainant has suffered physical strain, mental agony and financial loss which we quantify at Rs.10,000/-. The Act of the O.P made the complainant to file this complaint by engaging advocate by paying his profession fee and also spent money in attending the Forums hearing on each and every day.  We are of the opinion that if a sum of Rs.10,000/- if awarded towards litigation expenses, ends of justice will be met. The remaining prayer in the complaint is not substantiated with supporting evidence and documents and hence the same is rejected.  We answer Point No.2 partly in the affirmative and we proceed to pass the following:-

ORDER

1. The complaint is partly allowed with cost.

2. The OP i.e. Max Worth Reality India Limited Represented by its Managing Director/Deputy General Manager Marketing or its Authorized Signatory and directed to pay to the complainant a sum of Rs.1,25,000/- along with interest at the rate of 12% per annum  on the above sum from 31.12.2012 till payment of full amount.

3. Further O.P is directed to pay Rs.10,000/- towards damages and Rs.10,000/- towards cost of litigation expenses to the complainant.

4.  The O.P is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the complaints/ version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30th   of March 2018)

MEMBER                        PRESIDENT

ANNEXURES

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

PW-1: Sri. Shivaraj.L.N. – Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc:No.1:        Copy of the booking form.

Doc.No.2:        Copy of the Receipts 2 in Nos.

Doc.No.3:                Copy of the MOU

Doc.No.4:                Copy of the Legal Notice.

 Doc.No.5:        Copies of the postal receipt and Postal

                        Acknowledgment

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

RW-1: Mr. Roopesh Sulegai.

Copies of Documents produced on behalf of Opposite Party/s:

Doc.No.1:                Copy of the extract minutes of the board of

                       directors meeting of the company.

MEMBER                               PRESIDENT