ORDER

SMT.SHARAVATHI S.M.  MEMBER

1.     This Complaint is filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the opposite party (herein referred in short as OP) alleging the deficiency in service in not handing over the site agreed to be sold in his favour and for direction to the opposite party to refund the earnest money of Rs.1,30,000/- along with interest @ 18% per annum from the date of filing of this complainant till the realization and further op to pay Rs.1,00,000/- as compensation for causing hardship, mental agony, inconvenience, and also prayed for litigation and such other reliefs expenses and as this Hon’ble Commission deems fit.

2.     The complainant submitted that the OP is a developer and marketing agency having experience in both developing layouts and other real estate projects and marketing of sites, lands etc,. The complainant intended to purchase a site and contacted the OP.  OP informed the complainant that it had acquired the landed property and intending to develop the same and thereafter from the site in order to sell the same to the intending buyers. the complainant came to know that the op is forming the project by name “SAN CITY KAVERI’’ 1^ST phase from land of various survey numbers situated at Mallinathpura Village, Kempanahalli, Bilikere Hobli. Hunsur Taluk, Mysore District to sell the same to the intending buyers.

3.     The complainant submitted that on 03/01/2014, he paid a sum of Rs.5,000/- by the way of cash towards down payment and booked the site and further paid a sum of Rs.1,25,000/- by the way of cheque to OP. The complainant entered into Memorandum of Understanding with OP on 03/01/2014 wherein, OP has agreed to sell plot/site bearing number 1219,  measuring 20x30 formed out of various survey number in the said project. The total sale consideration was Rs.1,75,000/-.  The Memorandum of understanding further contemplated that the time duration fixed for completion of sale transaction is  24 months from the date of MOU. At the time of executing the MOU, on   03/01/2014, OP had promised that it will allot  site No.1219 in favour of complainant with in the time limit. Inspite of lapse of 24 months, till date OP has failed to execute and register the sale deed in respect of the said site by collecting the balance of sale consideration, thereby  there is deficiency of service on the part of OP. The complainant has left no other alternative option expect to issue legal notice dated 24/06/2019 calling upon OP to execute the sale deed in favour of the complainant or to refund Rs.1,30,000/- with interest and as OP failed to do so prayed to allow the complaint.

4.     Upon the issue of notice, OP appeared through their counsel and filed their version and has contended that the complainant has suppressed material fact and this commission has no jurisdiction to entertain the complaint and further this complainant is to recover the amount.

5.     OP further submitted that it is ready to provide the alternate site to the complainant and provided complainant pays differential amount of the alternate site. Due to COVID-19, OP unable to get the plot/site registered to the complainant. Now OP is not in a position to refund the amount paid by the complainant. Hence prayed to dismiss the complaint.

6.     In order to substantiate their case, both the parties have filed their affidavit evidence, and complainant has only produced  documents. Heard the arguments. The following points arise for our consideration:-

1. Whether the complainant has proved the deficiency in service on the part of  OP?

2. Whether the complainant is entitled to the relief prayed for in the complaint?

7.     Our findings on the above points are as under:

POINT NO 1: IN THE AFFIRMATIVE.

POINT NO 2: PARTLY IN THE AFFIRMATIVE

                      For the following:

REASONS

POINT NO 1:

8.     From the pleadings and documentary evidence  it is clear that, the complainant wanted to purchase the site bearing number 1219 and measuring 20x30 for a total consideration amount of Rs.1,75,000/-.  In  this regard, the complainant had entered into Memorandum of Understanding and paid Rs.1,30,000/- Ex-P4 are the two receipts for having  received payment on 03/01/2014 in the proposed layout named as “SAN CITY KAVERE”.

9.     The complainant alleged that after lapse of 6 years, also  OP has failed to execute and register the sale deed in respect of the said site in his favour by collecting the balance sale consideration. In this regard, the complainant approached OP several times, but OP deliberately avoided the complainant. Hence, the complainant had sought for refund of the entire amount paid by him. OP has not refunded the amount till today and register the sale deed by collecting the balance sale consideration. Hence the complainant issued a legal notice demanding for repayment of money paid by him. Inspite of it, OP did not come forward to comply the demand made by the complainant. This amounts to clear unfair trade practice and deficiency in service. Hence we answer POINT NO 1 IN THE AFFIRMATIVE.

POINT NO 2:

10.   The claim of the complainant has already been stated in the early para of this order. In view of the deficiency in service by OP towards the complainant, and having received the payment of Rs.1,30,000/- from the complainant, and having not executed the sale deed, and not completing the layout and not refund the amount,  as per the agreement or even thereafter, OP is bound to repay the amount received along with interest, we are the opinion that if 12% interest is ordered to be paid on the above amount from 03/01/2014 till payment of entire amount, ends of justice will be met.

11.   In view of the complainant proving the deficiency in service and that op failing to provide the site and handing over the same to the complainant, the complainant is made to suffer mental agony, loss of mental peace and hence he had to approach this commission seeking Redressal and exercising his rights under the consumer protection Act. In view of this damages for mental harassment has to be ordered to be paid by OP to the complainant. We quantity the damages for mental harassment at Rs.25,000/-.

12.   OP has made the complainant to come to this Commission by engaging an advocate for which he has to spend money. In view of this, we are of the opinion that if a sum of Rs.15,000/- is ordered to be paid by OP to the complainant towards legal expenses, and litigation expenses we feel that the ends of the justice will be met. Hence we answer POINT NO 2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The Complaint is allowed in part with cost.
2. OP i.e. M/s. SAN INFRASTRUCTURE PVT.LTD., Represented by its Managing Director/Authorized Signatory is hereby directed to refund a sum of Rs.1,30,000/- to the complainant along with interest at the rate of 12% per annum from 03/01/2014 till payment of the entire amount.
3. Further OP is also directed to pay Rs.25,000/- towards damages for causing mental harassment and physical strain and Rs.15,000/- towards cost of the litigation expenses to the complainant.
4. OP 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 Commission 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 day the 30^th day of JULY 2022)

MEMBER                   MEMBER             PRESIDENT

ANNEXURES

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

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Broacher.

Ex P2: Copy of the Order of the office of the Deputy Commissioner, Mysore District

Ex P3: Copy of the Application cum agreement.

Ex P4: Copy of the two receipts.

Ex P5: Copy of the Invoice.

Ex P6: Copy of the acknowledgement for payment of amount

Ex P7: Copy of the bank pass book

Ex P8: Copy of the legal notice dt:24.06.2019.

Ex P9: Acknowledgment

Ex P10: Coy of the reply by OP.

Ex P11: Copy of notice dt:26.01.2020.

Ex P12: Acknowledgment.

Ex P13: Copy of reply dt.04.02.2020

Ex P14: Acknowledgment for having received the notice copy.

Ex P15: Copy of notice dated 20.6.2020.

Ex  P16: Acknowledgment.

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

RW-1: Sri Bhuvaneshwar.N. Authorized Signatory of OP.

Copies of Documents produced on behalf of Opposite Party/s

- Nil-

MEMBER                   MEMBER                  PRESIDENT

RAK*