Date of filing:  15.01.2021                                                     Date of Disposal: 11.04.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 11^TH DAY OF APRIL, 2023

CONSUMER COMPLAINT NO. 252/2021

PRESENT:

SRI.RAJU K.S,

Mr. Ravi H, S/o.H.N.Hemanna,

Aged About 40 years,

R/at: Flat No.634A, Building

No.6, Ranka Colony,

Apartments, Bannerghatta Road,

Bilekakahalli, Bangalore-560076.

(Rep. by Sri.H.R.Katti, Advocate)

1) Shri Bhagya Nidhi Groups,

Reg. office at No.43, 1^st Main,

Nagarabhavi Road, Saraswathinagar,

Also having its Admn,

Office at Hotel Ashoka,

No.1056/A, 7^th Main,

Also having its office at No.G-2,

Krishna Complex, 1^st Main Road,

Nagarbhavi Road, Mudalapalya,

2) Sri.M.K.Rajeeva Shetty,

R/at: Flat No.2/3, Krishna Complex,

Mudalapalya, Bangalore-560040.

3) Ashok Shetty,

‘RUSHVI’, No.B-83, 1^st Main Road,

Upadhyaya Layout, Nagadevanahalli,

Gnanabharathi, Bangalore-560056.

//JUDGEMENT//

BY SRI. RAJU K.S, MEMBER

01.    The complainant has filed this complaint Under Section 34(2)/35 of Consumer Protection Act, 2019 seeking for a direction to the opposite parties to allot a site and to execute sale deed by receiving final instalment or to pay a sum of Rs.2,15,000/- along with interest of Rs.75,000/- at the rate of 18% per annum from the date of respective payment and to pay a sum of Rs.1,50,000/- towards mental agony and Rs.25,000/- towards costs.

02.    The case of the complainant is that, the opposite parties offered to sell residential site near Big Banyan Tree of Mysore Road under instalment scheme.  The complainant believing the words of the opposite parties has made an application under No.1966, dated: 31.12.2006 for purchase of 30 x 40 Ft. residential site.  As per brochure the total cost of the site is Rs.4,20,000/- and the complainant has to pay in four instalment each having Rs.1,05,000/-.  The complainant has paid total Rs.3,15,000/- in three instalments on 11.01.2007, 06.01.2007 and 11.06.2007 by way of cheque drawn on Canara Bank in favour of the opposite parties.  The opposite parties have duly acknowledged the same.  Further   the complainant was and is ready to pay the final instalment of Rs.1,05,000/-.  Further the complainant has made several requests to the opposite parties towards payment of final instalment and to allot site by executing registered sale deed in favour of the complainant.  Further the complainant came to know that, the opposite parties has cheated him by showing the builder name Layout Krishnappa (MLA Krishnappa) by stating he will provide the site to the prospective purchasers and same was advertised in the brochure.

03.    The opposite parties have failed to allot a site and to execute the sale deed in favour of the complainant as assured by them.  Then there is no other way the complainant constrained for cancellation of site booking and sought for refund of booking amount along with interest.  For that, he has wrote two cancellation letters dated: 22.05.2018 and 03.06.2018. 

04.    In-spite of repeated requests and issuance of legal notice dated: 12.11.2018, the opposite parties failed to provide site and register the same in the name of the complainant.  Even the opposite parties have failed to refund the advance amount of Rs.3,15,000/- after cancellation of booking.  Thereby the opposite parties are liable to the complainant under deficiency of service.  Hence this complaint for direction to allot the site or alternatively to refund the amount with interest.

05.    In-spite of serving of summons of this Commission the opposite parties failed to appear and defend themselves in the above complaint.

06.    The complainant has reiterated his case by filing chief examination affidavit and got marked EX.P.1 to EX.P.6 documents. 

07.    Based on the pleadings and documents the points that would arise for consideration are as under:-

  (1) Whether the complainant has proved deficiency in service on the part of the opposite parties?

  (2) Whether the complainant is entitle for the 

    relief as sought ?

       (3) What order ?

08.    Our findings on the aforesaid points are as follows:-

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative  

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

REASONS

09. POINT NO.1:-  In support of the case of the complainant the complainant has filed EX.P.1 brochure of the proposed Layout, Xerox copy of three cheques dated: 11.01.2007, 11.06.2007 and 14.02.2008 with receipts as per EX.P.3, two request letters dated: 22.05.2018 and 03.06.2018 as per EX.P.4 and EX.P.5 with Legal notice dated: 12.11.2018. 

10.    On scrutinization of above documents it is clear that, the opposite parties have received Rs.3,15,000/- by way of cheque and duly acknowledged the same.  When the opposite parties have failed to provide site as per their assurance, the complainant sought for cancellation of the site booking and request the opposite parties to refund the advance amount.  The opposite parties miserably failed to provide the site measuring 30 X 40 feet near the Big Banyan Tree as per their assurance in the brochure.  In-spite of repeated requests of the complainant to refund the booking amount of Rs.3,15,000/-, the opposite parties neither provide the site nor refund the amount received by them.    

11.    In-spite of due service of summons of this Commission, the opposite parties are not chosen to appear in this complaint and not filed any version to defend themselves.  This attitude of the opposite parties is tends to show their attitude in not fulfilling the promise as assured.  Thereby the opposite parties are liable to the complainant under the deficiency of service.  The opposite parties having legal obligation to fulfil their promise as assured by them.  The complainant has filed Memo dated: 10.03.2023 and stated that, on 09.12.2020 the opposite parties have transferred Rs.1,00,000/- through NEFT and on 13.09.2021 the opposite parties have transferred Rs.1,15,000/- through NEFT to the complainant’s account.  Thereby the opposite parties have admitted the transaction happened between the complainant and themselves.  Hence we answer point No.1 in the affirmative.

12.    POINT NO.2:-     The complainant has paid Rs.3,15,000/- as per EX.P.3.  The opposite parties are duly acknowledged the same.  The opposite parties having legal obligation to refund the amount received by the complainant with interest. 

13.    The complainant has filed Memo dated: 10.03.2023 and stated that, on 09.12.2020 the opposite parties have transferred Rs.1,00,000/- through NEFT and on 13.09.2021 the opposite parties have transferred Rs.1,15,000/- through NEFT to the complainant’s account.  The opposite parties have to refund the remaining amount of Rs.1,00,000/- with up-to-date interest at the rate of 9% per annum.  The complainant entitle to the interest at the rate of 9% per annum from the date of respective payments to refund of the same.  Further the complainant entitle to Rs.20,000/- as compensation for inconvenience and mental agony.  The complainant also entitle for Rs.10,000/- as litigation cost.  Hence we answer point No.2 partly in affirmative.

14.    POINT NO.3:-     As discussed supra, for the foregoing reasons we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party No.1 to 3 are jointly and severally liable to pay a sum of Rs.1,00,000/- to the complainant with interest at the rate of 9% per annum from the date of respective payment to till realization and a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.

The opposite party No.1 to 3 shall comply the order within 30 days from the date of the order.   In case, the opposite party No.1 to 3 failed to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order to till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 11^th Day of April, 2023)                                             

• RAJU K.S)                      (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Sri. Ravi H, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.

Documents submitted by the complainant side:

1. Brochure of proposed layout – EX.P.1.
2. Application form – EX.P.2
3. Copy of 03 cheques dt.11.01.2007, 11.06.2007 & 14.02.2008 – EX.P.3
4. Request letter dt.22.05.2018 for cancellation with RPAD receipt – EX.P.44.
5. Copy of request letter dt.03.06.2018 for cancellation – EX.P.5.
6. Office copy of legal notice dt.12.11.2018 with RPAD receipt, acknowledgment – EX.P.6

Witness examined for the opposite party side:   

• NIL -

Documents marked for the Opposite Parties side:

• NIL -

• RAJU K.S)                      (SHIVARAMA. K)    
•