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

 4^th DAY OF DECEMBER 2021

O R D E R

SMT. P.K.SHANTHA, MEMBER

1. The complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (herein after referred as OPs) with a prayer to direct the OPs to pay the complainant balance amount oF Rs.2,40,000/- interest, Rs.1,72,800/- from the date of booking i.e. 27.10.2013 @ 18% p.a. until the filing of this complaint, Rs.50,000/- towards mental agony, Rs.1,00,000/- towards damages, Rs.1,00,000/- towards cost of litigation.
2. The brief averments made in the complaint are as follows:

OP M/s Maxworth India Limited bearing company identification No.U4520 1 KA 2008 PLCO45928 is a company limited shares incorporated on 04.04.2008 in Bangalore.

The OP has undertaken a project in the name and style of “Maxworth City – Maximum Value, Maximum Joy” at M.S.Palya, Vidyaranyapura consisting of 6  (six) towers of 510 (five hundred and ten) units of 2 and 3 BHK apartments, since the project was centrally located in the heart of the city of Bangalore and it was close to the comlainant’s workplace, spouses workplace and schools of his children, he decided to purchase a flat with the OP.

The complainant booked a 2 BHK flat on 27.10.2013 and was allotted an east facing flat No.301 in Block F measuring 865 sq.ft. at the cost of Rs.2,950/- (Rupees two thousand nine hundred and fifty only) per sq.f.t including car park and other amenities which amounted to Rs.32,00,000/- (Rupees thirty two lakhs only).

Persuant thereto, the complainant made the payment of Rs.3,00,000/- on 27.10.2013 towards the booking of the flat.  The complainant made further payments through cheques dated 10.11.2013, 10.12.2013 and 24.12.2014 in favour of the OPs and OPs have issued receipts dated 28.10.2013, 01.12.2013 and 18.12.2014 in respect of the said payments made by the complainant in favour of the OPs.  They are shown as hereunder:-

On 18.12.2014 the complainant made an alteration in respect of the flat which he initially booked and the revised flat booked viz., Flat No.301 in Block F measuring 865 sq.ft. at the cost of Rs.2,805/- (Rupees two thousand eight hundred and five only) per sq.ft. including car park and other amenities amounted to Rs.30,90,950/- (Rupees thirty lakhs ninety thousand nine hundred and fifty only).  The following table shows the total cost of the revised flat booked:-

Thereafter, it came to the knowledge of the complainant that the project undertaken by the OP was not implemented.  Immediately, the complainant approached the OP for the cancellation of the flat which he had booked.  Accordingly, the complainant made a representation to the OP on 17.10.2015 to refund the balance amount.  The receipt of the representation duly acknowledged by the OP and the cancellation letter/representation dated 17.10.2015.

The OP has refunded only Rs.5,00,000/- (Rupees five lakhs only).  The Following table shows the dates on which the OP refunded the portion of the booking amount paid by the complainant.

A copy of the bank statement of the complainant showing the afore mentioned amount has been refunded by the OP.

Persuant thereto, the complainant made several oral requests and E-mail correspondences to the OP requesting them to refund the balance amount.  However, all such attempts made by the complainant turned in vain.  Further Ops have not refunded the balance amount till date.  The OP has neither refunded the entire amount, nor have they been able to complete the construction within the scheduled period promised i.e. June 2016.  This proves that there is clear deficiency of service on the part of the OPs.

The OPs vide letter dated 11.03.2016 commonly addressed to (1) Sri Arvind, (2) Sri Rahul, (3) Sri Vishnu, (4) the complainant herein Sri Ragavendra, Sri Umesh and Sri Kiran have stated viz., “we hereby confirm the pending amount for the above said client list is scheduled for payment before April 11^th 2016 and will be completed”.  I bare perusal of the aforesaid statement show that the OPs have assured/admitted to the complainant to refund the entire amount paid to the complainant.  The proceedings under the SARFAESI Act was initiated in respect of the property bearing BBMP Khata No.245/14/2 in Sy.No.14/2 (old Sy.No.14) measuring to an extent of 4 acres 20 guntas i.e., the land property in which the project undertaken by the OP has to be undertaken.  As per the order of the competent under the SARFAESI Act, the physical possession with respect to the builder share – OPs in 64% in 3 acres 20 guntas and 1 acre exclusive ownership of the builder share OPs have have been taken by Religare Finvest Ltd., Indirangar, Bangalore.  Therefore, it is evident fact that the project undertaken by the OPs was not duly completed as assured by them which amounts to deficiency of service.

The complainant has tried his level best to obtain the refund of the remaining amount, but all his efforts have gone in vain.  Hence, the complainant felt deficiency in service on the part of OPs and filed this complaint before this Commission seeking redressal for his grievance.   

3. After admitting the complaint, notices were issued to OPs.  The notice sent to OP No.1 returned with endorsement “left”. Notice sent to OP No.2 duly served, called out absent and placed exparte.  Counsel for OP No.1 was present before the Commission and received the notice and filed version.
4. The sum and substance of the version as follows:- The complaint is vexatious and frivolus is not maintainable either in law or on facts and liable to be dismissed in lemine.  The averments made in para 3,4,5,6,9,16 and 17 of the complaint with respect to registration and identity of the OP, with respect to booking of flat proposed cost and with respect to payment of advance amount, refund, filing earlier consumer complaint in CC 2825/2017 and return the same and filing of present complaint is admitted. 

The allegations made in para 7, 8, 10, 11 and 12 of the complaint with respect to alteration in earlier booking of the flat as well as the flat cost, non-comletion of the project, the complainant has cancelled the booked flat, several requests for refund of balance amount denied. Allegations made in para 12 of the complaint regarding proceedings under the Sarfaesi Act is admitted.

OP is running real estate business and registered Companies Act.  The OP having acquired good will amongst other real estates Company all over India.  The complainant had booked flat in Maxworth City and due to his incapability sought for refund of advance amount.  Out of Rs.7,40,000/- (Rupees seven lakhs fourty only).  The OP has refunded Rs.5,00,000/- (Rupes five lakhs only) when the complainant credited the amount to the OP Rs.42,372/- (Rupees fourty two thousand three hundred seventy two only) has been remitted to the account of the Government towards VAT and other taxes and there remains only Rs.1,97,628/- balance to the complainant.  But, the complainant has claimed undue amount, exorbitant rate of interest, mental agony, damages and cost of litigation.

The complainant has paid only meagre amount, he is not ready and willing to purchase the site as per the terms and conditions of the booking form.  The complainant neither deposited 30% of the amount to get register the sale agreement nor ready with full consideration to get absolute sale deed and intentionally delayed for these years just to claim unlawful gain of money from the OP.

The E-mail correspondence and legal notice issued by the complainant as well as complaint clear;ly shows that the complainant has seeking only refund of advance amount along with interest and compensation but not ready to purchase the site.  This shows the malafide intention of the complainant.

The OP is always ready and willing to execute the sale deeds in favour of complainant in the Max Madhura project which is fully developed by obtained all the permissions and approvals situated nearby project. Hence, OP pray the Commission to pleased to dismiss the complaint and order to get register the absolute sale deed by paying balance sale consideration in Max Madhura project or refund the remaining amount by deducting 15% out of advance amount to the complainant.

5. Therefore, the complainant was called upon to tender his evidence by way of affidavit.  Accordingly, complainant tendered his evidence by way of affidavit along with list of documents.  Ex.A.1 to Ex.A.22 marked.  OP failed to file affidavit evidence. Heard the complainant.

        6. The points that arises for our consideration are:

  7. Our answer to the above points:

REASONS

      8. Point No.1: Perused the allegations made in the complaint, sworn testimony of complainant and various documents produced by them goes to establish that the complainant has booked two BHK flat in the OPs project in the name and style of Maxworth City – Minimum Value, Maximum Joy.  The copy of the prospectus/brochure is produced as Ex.A.1 and complainant was allotted an east facing, flat No.301 in block “F” measuring 865 sq.ft. at the cost of Rs.2,950/- (Rupees two thousand nine hundred and fifty only) per sq.ft.l including car park and other amenities which amounted to Rs.32,00,000/- (Rupees thirty two lakhs only).  Copy of the booking form in respect of flat No.301 is produced and marked as Ex.A.2.  Complainant made payment of Rs.3,00,000/- on 27.10.2013 towards booking of the flat.  The complainant made further payments through cheques dated 10.11.2013, 10.12.2013 and 24.12.2014 in favour of the OPs and OPs have issued receipts dated 28.10.2013, 01.12.2013 and 18.12.2014 in respect of said payments made by the complainant in favour of OP.  The above said receipts issued by the Ops are produced and marked as Ex.A.3, A.4, and A.5.  On 13.12.2014, the complainant made an alteration in respect of the flat which he had initially booked and revised flat booked viz., Flat No.503 in Block F measuring 1132 sq.ft. at the cost of Rs.2,805/- (Rupees two thousand eight hundred and five only) per sq.f.t. including car parking and other amenities amounting to Rs.39,00,000/- (Rupees thirty nine lakhs only). A copy of the alteration made and new booking form in respect of flat No.503/3 dated 13.12.2014 is produced and marked as Ex.A.6.  Thereafter, it came to the knowledge of the complainant that the project undertaken by the OP was not implemented. Immediately the complainant approached the OP for the cancelaltion of the flat which he ahd booked.  Accordingly, the complainant made a representaiton to the OP on 17.10.2015 to refund the balance amount.  The receipt of the representation duly acknowledged by the OP and cancellation letter / registration dated 17.10.2015 is produced and marked as Ex.A.7.

        9. Thereafter the OP has refunded only Rs.5,00,000/- (Rupees five lakhs only).  A copy of the statement produced and marked as Ex.A.8.  Perusant there to, the complainant made oral requests and E-mail correspondences to the OP requesting them to refund a balance amount. A copy of the E-mail correspondence dated 19.09.2016, 21.09.2016, 04.11.2016, 14.12.2016, 15.12.2016, 23.12.2016, 20.01.2017, 11.01.2017, 15.02.2017 and 16.03.2017 produced and marked as Ex.A.9 to Ex.A.18.  However, all such attempts made by the complainant turned in vain.  Further the OPs have not refunded the balance amount till date.  The OPs have neither refunded the entire amount, nor have been able to complete the construction within scheduled period promised i.e. June 2016.  The OP vide letter dated 11.03.2016 commonly addressed to complainant and other similar consumers viz., “we hereby confirm the pending amount for the above said client list is scheduled for payment before April 11^th 2016 and will be completed.”  A bare perusal of the aforesaid statement show that the OPs have assured admitted to the complainant to refund the entire amount paid to the complainant.  Copies of the E-mail correspondence dated 28.11.2015 and letter dated 11.03.2016 issued by the OPs are produced and marked as Ex.A.19 and Ex.A.20.  Copies of the photographs of the premises which indicates SARFAESI proceedings intiating against the land on which the project was sought to be implemented by the OPs is produced and marked as Ex.A.21.

          10. Perused the copies of documents and receipts produced by the complainant and the sworn testimony of complainant coupled with documents establishes that OPs having received Rs.7,40,000/-, failed to implement the project undertaken by them and failed to refund the balance amount despite repeated oral requests and several reminders made through E-mail amounts to deficiency of service and unfair trade practice on the part of OPs.  Due to irresponsible behaviour on the part of Ops, the complainant has suffered financial loss and mental agony.

11. There is no reason to disbelieve the unchallenged affidavit of the complainant and the documents produced.  Therefore, we are of the opinion that Ops are directed to refund the balance amount of Rs.2,40,000/-(Rupees two lakhs fourty thousand only) together with interest at 10% p.a. by way of compensation from the date of payment till realization.  Further Ops are directed to pay Rs.5,000/- litigation costs. Accordingly, Point No.1 is answered partly in the Affirmative.

        11. Point No.2:  In the result, we pass the following:

ORDER

1. The complaint filed by the complainant u/s.35 of the Consumer Protection Act, 2019 is allowed in part.
2. OPs are jointly and sevrally directed to refund an amount of Rs.2,40,000/- (two lakhs fourty thousand only) with interest at 10% p.a. by way of compensation from the date of payment till realization with litigation cost of Rs.5,000/- (Rupees five thousand only) to the complainant.
3. OPs shall comply this order within six weeks from the date of receipt of the order, failing which the complainant is at liberty to take steps as per Law.
4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer and pronounced in the Open Commission on this 4^th Day of December, 2021).

List of documents produced by the complainants are marked as Ex.A.1 to Ex.A.22:-