Complaint Filed on:20.03.2017 |
Disposed On:27.09.2017 |
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN
27th DAY OF SEPTEMBER 2017
PRESENT:- | SRI. P.V SINGRI | PRESIDENT |
| SMT. M. YASHODHAMMA | MEMBER |
| SMT. P.K SHANTHA | MEMBER |
COMPLAINANTS | 1) Sri.Rakesh K.N, S/o Velayudhan P.V, Aged about 39 years. 2) Smt.Sumathi P, W/o Rakesh K.N, Aged about 37 years. Both are residing at No.CV-202, Vijnana Puram Campus, Bangalore-560094. Advocate – Sri.S Rajashekar V/s |
OPPOSITE PARTies | 1) M/s.TGS Constructions Pvt Ltd., No.L-142, 5th Avenue, Ground Floor, 5th Main Road, 6th Sector, HSR Layout, Bangalore-560 078. Rep. by its Managing Director, Mandeep Kaur. 2) Mandeep Kaur, Managing Director, M/s. TGS Constructions Pvt Ltd., No.12, 2nd Main, Kempanna Layout, Hulimavu, Bannergatta Road, Bangalore – 560078.. Also at, Mandeep Kaur, Managing Director,, M/s.TGS Constructions Pvt Ltd., No.97/A, Ekalavya Nilaya, 4th Cross, 2nd Main, Jambusavari Dinne, 1st A Division, 8th Stage, J.P Nagar, Bangalore-560076. |
O R D E R
SMT. SHANTHA P.K, MEMBER
The complainants have filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to refund advance amount of Rs.9,00,000/- with interest @ 18% p.a from 20.01.2016 till the date of realization, to pay Rs.1,00,000/- for having caused loss to the complainants by delaying the construction to pay Rs.50,000/- for the mental agony suffered and also to pay Rs.20,000/- towards cost of litigation.
2. The brief averments made in the complaint are as under:
Complainants have come across a paper advertisement issued by OPs about their project in the name and style “TGS Maldives”. In the said advertisement OPs had contended that they have launched a project of constructing residential apartment in the land bearing survey No.1/2(A) measuring 1 acre situated at Lottegollahalli Village, Kasba Hobli, Bangalore North Taluk and they have started pre-booking offers to the customers. After seeing an advertisement, the complainants contacted OPs and OPs have arranged for a cab and picked the complainants from their house to the office of OPs. Thereafter the OPs took the complainants to put up a residential apartment and promised to give to the complainants within 30 months. On visiting the spot, OPs started to force the complainants to sign the booking form. On 27.12.2015 one of the officials of OPs came to the house of the complainants and collected a cheque for Rs.3,00,000/- as first instalment of booking amount vide cheque bearing No.48730 dated 30.12.2015 drawn at State Bank of India, Gokula Extension, Bangalore. The said cheque is encashed by OPs. On receipt of the said cheque OPs have issued a receipt bearing No.2015/6399 dated 27.12.2015. One of the sales executive from the office of OPs had delivered the draft MOU which was not signed by the authorized signatory of the OPs. On enquiry the OPs official informed the complainants that the complainants will have to sign the draft MOU first and send the same to the office of OPs and thereafter the OP will sign and return the same to the complainants. The OPs had sent the copy of the agreement entered between OPs and the land owners along with the said MOU. On 20.01.2016 the complainants had paid the second installment of booking amount of Rs.6,00,000/- by way of cheque bearing No.48731 daed 20.01.2016 drawn at State Bank of India, Gokulam Extension, Bangalore which was encashed by OPs on 22.01.2016.
On the basis of the representations made by OPs, the complainants have decided to purchase one residential apartment measuring 1250 square feet in the proposed project in the name and style ‘TGS Maldives’ for a total sale consideration of Rs.30,00,000/- including car parking charge. OPs had given an assurance to the complainants that they will start the construction work by April 2016 and complete the same within 24 months from the date of agreement and the said time was enhanced from 24 months to 30 months at the time of entering into the MOU and for the delayed period the OPs have agreed to give compensation at 1% per months. Inspite of lapse of more than one month the complainants did not receive the MOU back after getting the signature done by OPs as promised. After repeated persuasions the OPs sent a new MOU on 18.03.2016 with changed version. The said MOU was sent back by the complainants to the OPs after their signature. On 13.04.2016, they received the MOU with the signature of OPs. That even after lapse of six months OPs did not start the construction work. All the attempts made by the complainants to contact the OPs went in vain. All the mails sent by the complainants to the OPs were bouncing. On 30.06.2016 the complainants sent SMS to the senior director stating that the complainants are going to cancel the registration and on such SMS and mail the senior director of the OPs contacted the complainants and assured that the construction will start within next two months. Even after lapse of 4 months, there was no progress and either the OPs or their officials were not available in the office and they never used to attend the phone calls. Considering the said aspect of the matter the complainants addressed a letter dated 26.12.2016 calling upon them either to commence the construction work or to refund the initial payment by cancelling the booking. On coming to know about the malafide intention of the OPs, the complainants have approached the OPs and cancelled the booking made by them. The complainants have made repeated follow up with the OPs regarding the commencement of the construction of project but the OPs continued to mislead the complainants by assigning one or the other reason and also vague and false assurances.
The complainants have filed a police complaint on 28.12.2016 with the jurisdictional police. In addition to that, the complainants have filed yet another complaint on 04.03.2017 with the jurisdictional police. Since the OPs did not kept the complainant informed regarding the repeated delay in the project and took no steps whatsoever to adhere to the construction timelines promised by them and since there was no proper response from OPs. The complainant got issued a legal notice dated 25.02.2017 calling upon the OPs to refund the amount received by the OPs with interest. The said notice came to be returned un-served. When OPs demanded the amount towards the apartment, complainants have paid the same. After receipt of the said amount, the OPs have failed to take up any steps to start the construction of the project even after lapse of more than one year from the date of allotment. The complainants made several requests with OPs by sending several e-mails. The complainants have made number of attempts with OPs to verify the status of the project. However, the OPs by assigning one or other reasons used to mislead the complainant inspite of repeated request the OPs did not inform regarding the delay in the project. The OPs took no steps to start the construction as promised by them after receipt of the amount from the complainants. Inspite of repeated requests the OPs deliberately with malafide intention did not take any steps to refund the same and delayed the payments. Inspite of repeated requests the OPs did not made any arrangements to pay the amount and as such the complainants left with any other option approached the Forum by filing this complaint. The OPs without commencing the construction have committed deficiency in service. They kept on postponing the commencement of the construction by assigning one or the other reason. The OPs have deliberately mislead with an intention to make unlawful gain. This act of OPs amounts to deficiency in service and hence the complainants left with no other alternative approached this Forum seeking remedy to redress their grievance.
3. After registration of the complaint, notices were issued to OPs. Despite service of notice, OPs failed to appear and contest the complaint. Hence OPs were placed ex-parte. Thereafter the complainants were called upon to tender their evidence byway of affidavit. Accordingly, the 1st complainant tendered his evidence by way of affidavit reiterating the allegations made in his affidavit.
4. Perused the allegations made in the complaint, sworn testimony of the complainant various documents produced by him including copies of MOU and receipts etc.
5. The allegations made in the complaint coupled with sworn testimony of complainants also documents produced by them establishes that the complainants booked an apartment by paying Rs.9,00,000/- as advance amount on different dates for which OPs have issued receipts. We have no reasons to disbelieve the unchallenged testimony of the complainants which is supported by valid documents. From the very fact that, OPs despite service of notices have remained absent, an inference can be drawn that OPs admit the claim of the complainants. The conduct of OPs in not proceeding with the construction of apartment complex within the time stipulated and the conduct in not refunding the advance amount, despite oral request and legal notice certainly amounts to grave deficiency of service. The conduct of OPs must have put the complainants to great inconvenience, hardship and mental agony. Therefore, the OPs have to be directed to refund the advance amount together with interest @ 18% p.a from the date of receipt of advance amount till the date of realization. Further OPs have to be directed to pay compensation of Rs.1,00,000/- to the complainants for having caused inconvenience and mental agony together with litigation cost of Rs.4,000/-.
6. In the result, we proceed to pass the following.
O R D E R
The complaint filed U/s.12 of the Consumer Protection Act, 1986 by the complainants is allowed in part.
OPs are directed to refund the advance amount of Rs.9,00,000/- (Nine Lakhs Only) to the complainant together with interest @ 18% p.a from the date of actual payment till the date of realization. Further OPs are directed to pay compensation of Rs.1,00,000/- (One Lakh only) to the complainant for having caused inconvenience and mental agony together with litigation cost of Rs.4,000/-.
OPs shall comply the order passed by this Forum within a month from today.
Furnish free copy of this order to both the parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 27th day of September 2017)
MEMBER MEMBER PRESIDENT
Vln*
COMPLAINANTS | 1) Sri.Rakesh K.N, 2) Smt.Sumathi P, Bangalore-560094. V/s |
OPPOSITE PARTies | 1) M/s.TGS Constructions Pvt Ltd., Bangalore-560 078. Rep. by its Managing Director, Mandeep Kaur. 2) Mandeep Kaur, Managing Director, M/s. TGS Constructions Pvt Ltd., Bangalore – 560078.. Also at, Mandeep Kaur, Managing Director,, M/s.TGS Constructions Pvt Ltd., Bangalore-560076. |
Witnesses examined on behalf of the complainant dated 23.08.2017.
- Sri.Rakesh K.N.
LIST OF DOCUMENTS PRODUCED BY THE COMPLAINANT |
1) | Document No.1 is copy of Statement of account. |
2) | Document No.2 is copy of receipt dated 27.12.2015. |
3) | Document No.3 is copy of cheque No.48731 dated 20.01.2016 of SBI, Gokulam Extension. |
4) | Document No.4 is copy of receipt dated 15.01.2016. |
5) | Document No.5 is copy of MOU dated 18.03.2016. |
6) | Document No.6 is copy of emails sent by complainants to OP/s. |
7) | Document No.7 is copy of letter dated 26.12.2016. |
8) | Document No.8 is copies of postal receipts. |
9) | Document No.9 is copies of unclaimed postal covers. |
10) | Document No.10 is copy of cancellation form dated 11.01.2017. |
11) | Document No.11 is copy of declaration dated 11.01.2017. |
12) | Document No.12 is copy of booking form No.005454. |
13) | Document No.13 is copy of police complaint dated 28.12.2016. |
14) | Document No.14 is copy of legal notice dated 25.02.2017. |
15) | Document No.15 is copy of postal receipt. |
16) | Document No.16 is copy of postal receipt. |
17) | Document No.17 is copy of postal receipt. |
18) | Document No.18 is copy of undelivered postal cover. |
19) | Document No.19 is copy of undelivered postal cover. |
20) | Document No.20 is copy of undelivered postal cover. |
OPs - Absent
MEMBER MEMBER PRESIDENT
Vln*
