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

DATED 16^TH DAY OF OCTOBER 2024

ORDER

SMT. SUMA ANILKUMAR, MEMBER

Prayer

WHEREFORE, the Complainant respectfully prays that this Hon’ble Commission be pleased to direct the Opposite Party Nos.1 & 3.

1. Direct the Opposite Party to refund a sum of Rs.26,67,000/- (Rupees Twenty Six Lakhs Sixty Seven Thousand only) to the Complainant together with interest at the rate of 18% p.a from the date of receipt of the Booking amount.
2. Award Rs.10,00,000/- (Rupees Ten Lakhs only) as damages with the cost of the above Complaint.
3. Grant such other relief or reliefs as this Hon’ble Commission deems it fit to pass in the facts and circumstances of the above Complaint, in the interests of justice and equity.

2.Brief facts of the case shown as follows:-

The complainant submits that OP1 represented by OP2 and OP3 defined themselves as “Developers and Builders” and represented before the complainant that they are building flats and apartments in the name “ERA Land Marks” have taken up project to build flats and apartments in survey No.134/5, Kengeri-Mysore Road, Bangalore-560060. The Ops representatives at Bangalore convinced the complainant and induced her to invest on the said proposed flats which are to be constructed by OPs 1 to 3. With fond hope of owning the flat for residential purpose,the complainant initially made an investment of Rs.97,490/- with Rs.2,510/- towards service tax through a check dated 06/02/2011 vide check No.151032 drawn on Canara Bank, Bengaluru. Having received the same, the OPs issued a receipt dated 07/03/2011after encashment of the cheque. The complainant made second installment of sum of Rs.25,67,000/- vide cheque No.395159 dated 06/04/2011 drawn on Canara Bank. The OPs issued receipt dated 09/04/2011.

3. In the said receipt OPs categorically allotted her flat bearing unit No.BLR-B2-2001 at the apartment complex named “THE ARENA” in favor of the complainant. Further the OP strengthened their commitment by sending letter dated 12/05/2011 to the complainant. The OPs after receiving the amount from the complainant assured the complainant that the construction of flats will be completed and possession will be handed over within a period of 12 months.

4. In spite of this specific commitmentmade by the OPs, OP fail to keep up the promises and failed in the construction of the flats and position of the same to the complainant. The complainant has followed up through E-Mail dated 27/03/2012. in spite of hindrances, delay caused due to unforeseen circumstances, in the meeting held on 21/03/2012 resolution was made by OPs, assuring the customer/ complainant that ‘ERA’ project will be completed and delivered within 36 months from the date of signing the agreement. Further resolved to provide an option to the customers who wished to withdraw the deposit made for the flats. The OPs assured the entire amount will be refunded within 3 weeks from the date of request of cancellation. Since the OPs claimed 36 months instead of 12 months to complete the project and hand over the flats and also option was given to the complainant to continue or, cancel the booking, the complainant preferred to cancel the allotment, as the OPs, did not keep up their promises and committed inordinate delay.

5. Accordingly the complainant sent an E-Mail on 01/12/2013 to OP and thereby request for cancellation of booking. Further on follow-up by the complainant the OP reassure that the amount will be refunded within 90 days from the date of request for cancellation, but fail to do so,in spite of several request by the complainant. On believing the representations of OP the complainant agreed to wait for some more time but OP did not deliver the possession of apartment till date. The OPs who were not in a positionto deliver the flat again agreed to refund the advance amount and ask the complainant to fill up the refund form. The complainant submits that she was made to run from person to person regarding the refund of the advance amount.The OPs fail to keep up the promises and assurances in handing over the possession of the schedule apartment in favor of the complainant. This conduct of OPs jointly and severally amount to just cheat and, deficiency in service and unfair trade practice on their part. The complainant left with no choice, filed this complainant. Hence this complaint by the complainant.

6. On Issue of notice to OPs, OPs fail to appear before this commission hence placed ex-parte.

7. The complainant files her affidavit evidence along with 5 documents marked as Ex.P1 to Ex.P5. The complainant also submits written arguments.

8. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant has proved the deficiency of service on the part of OP?

ii) Whether complainant is entitled for the relief?

iii) What order?

9. Our answers to the above points are as follows:-

                Point No.1:- Affirmative.

                Point No.2:- Partly Affirmative.

                Point No.3:- As per the final order.

REASONS

10. Point No.1 and 2: These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

11. Onperusal of the documents submitted by the complainant Ex.P1 is receipt issued by OPsi.e, Parinda Build Con Pvt. Ltd. in favor of the complainant dated 07/03/2011 which shows that the complainant has made payment of Rs.1,00,000/- to the OPs through a cheque holding No.151032 dated 06/02/2011. Ex.P2 is a copy of receipt issued by OP in favor of the complainant dated 07/04/2011 which clearly shows that the complainant has made payment of Rs.25,67,000/- to the OPs through a cheque of Syndicate Bank holding NO.395159 dated 06/04/2011 Ex.P3 is a copy of letter dated 12/05/2011 by the OP to the complainant, on observing the said letter but we observe that the OPs have given the details of the flat booked by the complainant. The letter also mentions unit NO “1504-A1, Unit type-3BHK, Unit area-1468 Sq.ft., floor 15, amount paid till date Rs.31,51,000/- and rate of booking as 2,160 per Sq. ft.” Ex.P4 is a legal notice issue by the complainant to the OP.

12.Looking into the above documents it is true that the complainant has made payment of Rs.1,00,000/- and Rs.25,67,000/-  in favor of OPs for the booking of a flat in the project of OP (ERA land marks). Since 2011 the complainant has followed up and believed the OPs. The OPs have regularly being postponing the completion of the project on different reasons. The OP initially had promised to handover possession within 12 months from the date of booking. But later postponed and promised to handover the project within 36 months from the date of signing the agreement. The complainant on many follow-ups with the OPs through E-mail communication realized the OPs deliver the Possession in time and made a request for the refund of the amount paid by the complainant to the OP for the said project. The OPs promised to refund the said amount within 90 days from the date of request and has failed to do so till date. The OPs have neither completed the project nor refunded the amount paid by the complainant till date. The OPs have also fail to appear before this commission and file their version and evidence and is been placed ex-parte. Nonappearance of OPs and non-filing of written version to the complaint before this commission amount to admission of the allegation levelled against them in the consumer complainant. This shows deficiency in service and unfair trade practice on the part of OPs. hence OPs are liable to repay the amount of Rs.26,67,000/- with an interest of 9% per annum from the date of booking i.e, 07/03/2011.The OPsare further directed to pay a sum of 25,000/- towards legal charges.

Point No.3: In view of the discussion referred above, we proceed to pass the following.

Order

1. Complaint filed by the complainant U/S 35 of the Consumer Protection Act, in hereby allowed in part.
2. OPsare jointly and severally directed to repay the amount of Rs.26,67,000/- with an interest of 9% per annum from the date of booking i.e, 07/03/2011 till realization.
3. OPsare directed to pay Rs.25,000/- towards litigation charges.
4. The OPsare directed to pay the entire award amount within 45 days from the date of order failing which pay an interest of 12% per annum on the amount of Rs.26,67,000/- till realization.
5. Furnish the copies of the order to both parties with no cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 16^th Day of OCTOBER 2024)

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