ORDER

SMT.SHARAVATHI S.M.  MEMBER

1. This is the complainant filed Under Section 35 of the Consumer Protection Act 2019 against the opposite parties (herein referred to as OPs) alleging the deficiency in service and to direct the Op’s to refund the amount of Rs.3,50,000/- paid towards  part sale consideration amount along with interest and also to pay Rs.2,00,000/- towards compensation for mental agony and cost of the litigation and to grant any other reliefs as deems fit under the circumstances.

2. The brief facts of the complainant’s case is that,  he had booked flat by paying amount of Rs.3,50,000/- in the project “TRANS PRAKURUTHI”, on different dates for which op has issued receipt in proof. He paid a sum of  Rs.10,000/- credit card on 04/06/2014,  Rs.1,79,000/- through cheque dated 17/06/2014,  Rs.61,000/- through credit card dated 07/09/2014,  Rs.1,00,000/- on credit card dated 25/04/2015. The Op’s and their men made false representation to make it to believe that they are going to construct the flat well in time as per the memorandum of understanding which they entered into. When the complainant started to verify. The background of the Op’s, he came to know that they have no sufficient fund to repay the amount to the persons who have cancelled the booking order to purchase the flats and never came forward to take up the construction and complete it. The contract between him and the op’s is null and void and that he has cancelled the booking order. Inspite of agreeing to repaying the sale consideration within 90 days after the cancellation of the booking, Op’s have not refunded the amount and not fulfilled their promise or constructing and handing over the flat. Hence there is deficiency in service and prayed this commission to order the OP’S to repay a sum of Rs. 3,50,000/- in all. Op has not come forward to repay the same and allot the flat. Hence there is deficiency in service in not allotting the flat as assured inspite of receiving the advance  sital value and also unfair trade practice by the Op’s causing mental sufferance, inconvenience and hence the complaint.

3. OP-1 appeared before the commission after service of notice  and not file any version. As the complainant not take any steps against OP-2. Complaint against OP No.2 stands is dismissed.

4. In order to prove the case, the complainant filed his affidavit evidence along with the copies of the documents. Heard the counsel for the complainant.

5. On the basis of the above pleadings and evidence of the complainant, the following points arise for our consideration:-

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

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

3. What order?

6. Our answers to the above points are:-

POINT NO 1 : IN THE AFFIRMATIVE

POINT NO 2: PARTLY IN THE AFFIRMATIVE

POINT NO 3: AS PER THE FINAL ORDER

                        For the following.

REASONS

POINT NO 1:-

7. The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. The same has not been controverted   or objected to by  the Op’s.

8. On perusal of the complaint, the oral evidence and the documents produced by the complainant, it becomes clear that the OP has entered into Memorandum of Understanding with the complainant to sell flat for which it has received advance consideration of Rs.3,50,000/-. From the receipts and the Memorandum of Understanding it becomes clear that though Op’s received the said amount from the complainant has not completed the construction and not executed the sale deed. OP has not adhered to the terms and conditions of MOU and has not repaid the amount as claimed by the complainant inspite of complainant cancelling the booking order which clearly amounts to deficiency in service.

9. If at all OP had constructed the flats, completed it and handed over it to the complainant in terms of the agreement well in time or thereafter, after the service of notice, and appeared. OP would have filed its version denying the contents of the complaint and putting forth its defense. This clearly shows that OP  has not adhered to the terms and conditions of the agreement and did not, complete of the same and handed over the same to the complainant. In view of this, there is a clear deficiency in service on the part of the op towards the complainant. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

ON 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-1 towards the complainant, and having received the payment of Rs.3,50,000/- from the complainant, and having not executed sale deed and not completing the flat in question and not handing over the same well in time as per the agreement or even thereafter, OP-1 is bound to repay the amount received along with interest, we are of the opinion that if 12% interest is ordered to be paid on the above amount from 24.05.2015 till payment of the entire amount, ends of justice will be met.

11. In view of the complainant proving the deficiency in service and that OPs failing to provide the flat 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-1 to the complainant. We quantity the damages for mental harassment at Rs.25,000/-.

12. OPs have 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-1 to the complainant towards legal expenses and litigation expenses we feel that the ends of the justice will be met. Complaint against OP-2 is hereby dismissed. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE.

ON POINT NO 3:-

13. On the basis of the findings given on POINT No.1 and 2 as above, we proceed to pass the following:-

ORDER

1. The Complaint is allowed in part with cost.
2. OP No.1 i.e. Trancity Developers, Represented by its Managing Director/Authorized Signatory is hereby directed to pay a sum of Rs.3,50,000/- to the complainant along with interest @  12% per annum from 24.05.2015 till payment of the entire amount.
3. Further OP No.1 is also directed to pay Rs.15,000/- towards cost of the litigation expenses and Rs.25,000/- towards mental harassment to the complainant.
4. Complaint against OP-2 is hereby dismissed.

5. OP-1 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 forum within 15 days thereafter.
6. 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 07^th day of MAY 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 Agreement of sale.

Ex P2: Copy of the receipts issued by OP (4 Nos.)

Ex P3: Copy of the Letter issued by complainant to OP.

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

RW-1: - Nil-

Copies of Documents produced on behalf of Opposite Party/s

- Nil-

MEMBER         MEMBER                PRESIDENT

RAK*