Date of Filing: 12/12/2017
Date of Order: 03/09/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated:03TH DAY OF SEPTEMEBER 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.3162/2017
COMPLAINANT/S | | |
| 1 | Sri.Manjunathachari B.M S/o. Jakanachari, Aged about 37 years, C/o. Kumar H.S., No.353,16th Main, MICO Layout, Hongasandra – Begur Road, Bommanahalli, Bengaluru-560 068. (Sri.Santhoshkumar., Adv. for complainant) |
V/s
OPPOSITE PARTY/IES | | |
| 1 2. | M/s. Max Worth Realty India Limited, Corporate Office at KMP House, No.12/2, Yamuna Bai Road, Madhavangar, Bengaluru -560 001. Represented by the Chairman and Managing Director, K.Kesava, The Maxworth Realty India Limited, Branch office at No.22/1, Railway Parallel Road, Nehrunagar, Bengaluru-560 020. Represented by the Deputy General Manager- Marketing Repesh Sulegai (Sri. UMM., adv. for O.Ps.) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT:
1. This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (hereinafter referred to as O.Ps) alleging deficiency in service and to direct O.Ps to refund Rs.2,00,000/- with interest @ 18% from the date of payment till realization, and Rs.1,00,000/-towards damages and expenses for mental agony physical stress and Rs.50,000/- towards cost of the litigation expenses and to pass such other order as this Forum deems fit.
2. The brief facts of the complainant case are that, O.Ps are construction company and introduce the project under the name of “MAX ORCHIDS III PHASE” situated at Dyavarahalli Village Kundana Hobli, Devanahalli, Taluk, Bangalore Rural District. The complainant wanted to purchase site/ plot No.496 measuring 1200 (30X40) Sq. feet at the rate of Rs.630/- per square feet. The complainant has paid Rs.50,000/- by way of cheque bearing No.126257 on 12.06.2014 drawn on HDFC bank Bangalore in favour of Ops towards booking amount and of Rs.1,00,000/-by way of cheque bearing No.126259 dated on 02.12.2013 and another Rs.50,000/- paid by way of cheque bearing No. 126258 on 15.02.2014, in favour of Ops towards in all Rs.2,00,000/- towards part sale consideration of the said site/plot, where in, it was agreed to handover the possession of the schedule property within in stipulated time. O.Ps for one reason or the other, postponed the same with a view to drag on the formation and handing over the possession of the site/plot. They have duped for Rs.2,00,000/-. Inspite of notice, O.P. have not returned the amount and handed over the possession of the plot. Hence this complaint.
3. Upon service of notice, O.Ps appeared before the Forum and filed their version contending that the complaint is not maintainable, it is vexatious and frivolous to be dismissed. The complainant has paid only Rs. 2,00,000/- to register the site in her name. As per the terms and conditions of booking form, complainant has not paid 30% of sale consideration. Complainant ought to have paid 30% of the value of the site. Hence complainant has breached the contract. Further Op submits that they have explained to the complainant, if any delay is caused due to changes in the real estate policy of the state government, the approvals are delayed, he would give alternative site in the fully developed and approved project.
4. The complainant has no interest to purchase the site. Further Ops state that they are always ready to allot site and also they reserved the booking site for the complainant. The complainant may get the absolute sale deed as per the general terms and conditions at any time. The complainant himself violated booking and terms and conditions. On this ground only complaint is liable to dismissed. The complainant has not come forward to perform his part of contract and simply he is making wrong allegation against them. There is no deficiency in service on their part. The have replied to the legal notice issued by the complainant. The have also requested to get site alternatively in any of their other projects for which complainant did not agree. The allegations made against them are all baseless and hence O.Ps prayed to dismiss the complaint.
5. In order to prove the respective case, the complainant and O.Ps have filed their affidavit evidence reiterating the contents of the complaint and their version respectively. Perused the documents produced by the complainant and O.Ps. Heard the arguments.
6. On the basis of the above pleadings and evidence of the complainant and O.Ps, 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?
7. Our answers to the above points are:-
POINT 1: Affirmative.
POINT 2: Partly in the affirmative
as per the final order.
REASONS
ON POINT No.1:-
8. The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. Besides she has also produced booking forms, receipts, Bank statement, copy of the legal notice and reply notice copy of the acknowledgement. Wherein it has agreed to sell the plot/site at the rate of Rs.630/- per sq. feet and received Rs.2,00,000/-. It is also clear from of the version filed by the Ops that they have not obtained permission from the government due to delay in change of land for the purpose of formation of layout and without doing so have collected money from the complainant. Further the burden is casted on the Op to prove that the said site was booked for making profit. Further OPs have not placed any documentary proof in this regard. Hence the allegations made by the OPs have no substance. Actually in the present case the complainant has booked only one site. O.Ps are not entitle to deduct 15% out of the advance amount. The following decisions relied on by the Op do not help to Op.
- I( 2016) CPJ 219 (NC)
- II (2016) CPJ 626 (NC)
- I (2016) CPJ 377 (NC)
- IV (2013) CPJ 221 (NC)
- III (2012) CPJ 315 (NC)
- Vedkumari and another V/s Omaxe Buildhome Pvt. Ltd., decided 05.03.2014.
9. It becomes clear that O.Ps. did not proceed to complete the project “MAX ORCHIDS III PHASE” due to difference and disputes in respect of the allotment of site / plot in the agreed layout and hence OPs could not execute the sale deed. In view of this, there is clear deficiency in the service.
10. It is to be noted that the Ops have taken the contention that 30% of the total consideration amount ought to have paid by the complainant at the time of booking the site. The sale agreement is not produced by the complainant or by the Ops. From the same it becomes clear that the said claim of op is not proper.
11. Further Op admits in the version that complainant is informed that “MAX ORCHIDS III PHASE” is getting delayed in approval process. It takes another some more time to get the approval from concerned authorities. But they offered to get alternative site in the fully developed project. They have not filed any documentary proof to show that they have offered for the same. Under the circumstance the version of Op cannot be accepted. When reply letter is taken in to consideration, it becomes clear that the Ops have not formed the site in the land for which complainant has booked the site which is clear violation of terms of agreement and deficiency in service. Hence we answer Point No.1 in the affirmative.
ON POINT No. 2:-
12. In view of our answer to Point No.1 in the affirmative, there is deficiency in service on the part of O.P and hence it is liable to refund the amount which it has received from the complainant i.e. Rs.2,00,000/- along with interest at 12% per annum. Due to inaction of the O.P in not returning the amount, the complainant has suffered physical strain, mental agony and financial loss which we quantify at Rs.10,000/-. The Act of the O.P made the complainant to file this complaint by engaging advocate by paying his profession fee and also spent money in attending the Forums hearing on each and every day. We are of the opinion that if a sum of Rs.10,000/- if awarded towards litigation expenses, ends of justice will be met. The remaining prayer in the complaint is not substantiated with supporting evidence and documents and hence the same is rejected. We answer Point No.2 partly in the affirmative and we proceed to pass the following:-
ORDER
1. The complaint is partly allowed with cost.
2. The OPs i.e. Max Worth Reality India Limited Represented by its Managing Director/Deputy General Manager Marketing or its Authorized Signatory are jointly and severally are liable to and they are hereby directed to pay to the complainant a sum of Rs.2,00,000/- along with interest at the rate of 12% per annum on the above sum from 02.12.2013 till payment of full amount.
3. Further O.Ps are also directed to pay Rs.10,000/- towards damages and Rs.10,000/- towards cost of the litigation expenses to the complainant.
4. The O.Ps are 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.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 03th of September 2018)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
PW-1: Sri. Manjunathachari B.M. – Complainant.
Copies of Documents produced on behalf of Complainant/s:
Doc:No.1: Copy of the Receipts.
Doc.No.2: Copy of the Receipt.
Doc.No.3: Copy of the Bank Statement
Doc.No.4: Copy of cancellation letter
Doc.No.5: Copy of the Legal Notice.
Doc.No.6: Copies of the postal receipt and Postal
Acknowledgment
Doc.No.7: Copy of the reply letter
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Mr. Roopesh Sulegai.
Copies of Documents produced on behalf of Opposite Party/s:
-Nil-
MEMBER PRESIDENT
Date of Filing: 12/12/2017
Date of Order: 03/09/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated:03TH DAY OF SEPTEMEBER 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.3162/2017
COMPLAINANT/S | | |
| 1 | Sri.Manjunathachari B.M S/o. Jakanachari, Aged about 37 years, C/o. Kumar H.S., No.353,16th Main, MICO Layout, Hongasandra – Begur Road, Bommanahalli, Bengaluru-560 068. (Sri.Santhoshkumar., Adv. for complainant) |
V/s
OPPOSITE PARTY/IES | | |
| 1 2. | M/s. Max Worth Realty India Limited, Corporate Office at KMP House, No.12/2, Yamuna Bai Road, Madhavangar, Bengaluru -560 001. Represented by the Chairman and Managing Director, K.Kesava, The Maxworth Realty India Limited, Branch office at No.22/1, Railway Parallel Road, Nehrunagar, Bengaluru-560 020. Represented by the Deputy General Manager- Marketing Repesh Sulegai (Sri. UMM., adv. for O.Ps.) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT:
1. This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (hereinafter referred to as O.Ps) alleging deficiency in service and to direct O.Ps to refund Rs.2,00,000/- with interest @ 18% from the date of payment till realization, and Rs.1,00,000/-towards damages and expenses for mental agony physical stress and Rs.50,000/- towards cost of the litigation expenses and to pass such other order as this Forum deems fit.
2. The brief facts of the complainant case are that, O.Ps are construction company and introduce the project under the name of “MAX ORCHIDS III PHASE” situated at Dyavarahalli Village Kundana Hobli, Devanahalli, Taluk, Bangalore Rural District. The complainant wanted to purchase site/ plot No.496 measuring 1200 (30X40) Sq. feet at the rate of Rs.630/- per square feet. The complainant has paid Rs.50,000/- by way of cheque bearing No.126257 on 12.06.2014 drawn on HDFC bank Bangalore in favour of Ops towards booking amount and of Rs.1,00,000/-by way of cheque bearing No.126259 dated on 02.12.2013 and another Rs.50,000/- paid by way of cheque bearing No. 126258 on 15.02.2014, in favour of Ops towards in all Rs.2,00,000/- towards part sale consideration of the said site/plot, where in, it was agreed to handover the possession of the schedule property within in stipulated time. O.Ps for one reason or the other, postponed the same with a view to drag on the formation and handing over the possession of the site/plot. They have duped for Rs.2,00,000/-. Inspite of notice, O.P. have not returned the amount and handed over the possession of the plot. Hence this complaint.
3. Upon service of notice, O.Ps appeared before the Forum and filed their version contending that the complaint is not maintainable, it is vexatious and frivolous to be dismissed. The complainant has paid only Rs. 2,00,000/- to register the site in her name. As per the terms and conditions of booking form, complainant has not paid 30% of sale consideration. Complainant ought to have paid 30% of the value of the site. Hence complainant has breached the contract. Further Op submits that they have explained to the complainant, if any delay is caused due to changes in the real estate policy of the state government, the approvals are delayed, he would give alternative site in the fully developed and approved project.
4. The complainant has no interest to purchase the site. Further Ops state that they are always ready to allot site and also they reserved the booking site for the complainant. The complainant may get the absolute sale deed as per the general terms and conditions at any time. The complainant himself violated booking and terms and conditions. On this ground only complaint is liable to dismissed. The complainant has not come forward to perform his part of contract and simply he is making wrong allegation against them. There is no deficiency in service on their part. The have replied to the legal notice issued by the complainant. The have also requested to get site alternatively in any of their other projects for which complainant did not agree. The allegations made against them are all baseless and hence O.Ps prayed to dismiss the complaint.
5. In order to prove the respective case, the complainant and O.Ps have filed their affidavit evidence reiterating the contents of the complaint and their version respectively. Perused the documents produced by the complainant and O.Ps. Heard the arguments.
6. On the basis of the above pleadings and evidence of the complainant and O.Ps, 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?
7. Our answers to the above points are:-
POINT 1: Affirmative.
POINT 2: Partly in the affirmative
as per the final order.
REASONS
ON POINT No.1:-
8. The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. Besides she has also produced booking forms, receipts, Bank statement, copy of the legal notice and reply notice copy of the acknowledgement. Wherein it has agreed to sell the plot/site at the rate of Rs.630/- per sq. feet and received Rs.2,00,000/-. It is also clear from of the version filed by the Ops that they have not obtained permission from the government due to delay in change of land for the purpose of formation of layout and without doing so have collected money from the complainant. Further the burden is casted on the Op to prove that the said site was booked for making profit. Further OPs have not placed any documentary proof in this regard. Hence the allegations made by the OPs have no substance. Actually in the present case the complainant has booked only one site. O.Ps are not entitle to deduct 15% out of the advance amount. The following decisions relied on by the Op do not help to Op.
- I( 2016) CPJ 219 (NC)
- II (2016) CPJ 626 (NC)
- I (2016) CPJ 377 (NC)
- IV (2013) CPJ 221 (NC)
- III (2012) CPJ 315 (NC)
- Vedkumari and another V/s Omaxe Buildhome Pvt. Ltd., decided 05.03.2014.
9. It becomes clear that O.Ps. did not proceed to complete the project “MAX ORCHIDS III PHASE” due to difference and disputes in respect of the allotment of site / plot in the agreed layout and hence OPs could not execute the sale deed. In view of this, there is clear deficiency in the service.
10. It is to be noted that the Ops have taken the contention that 30% of the total consideration amount ought to have paid by the complainant at the time of booking the site. The sale agreement is not produced by the complainant or by the Ops. From the same it becomes clear that the said claim of op is not proper.
11. Further Op admits in the version that complainant is informed that “MAX ORCHIDS III PHASE” is getting delayed in approval process. It takes another some more time to get the approval from concerned authorities. But they offered to get alternative site in the fully developed project. They have not filed any documentary proof to show that they have offered for the same. Under the circumstance the version of Op cannot be accepted. When reply letter is taken in to consideration, it becomes clear that the Ops have not formed the site in the land for which complainant has booked the site which is clear violation of terms of agreement and deficiency in service. Hence we answer Point No.1 in the affirmative.
ON POINT No. 2:-
12. In view of our answer to Point No.1 in the affirmative, there is deficiency in service on the part of O.P and hence it is liable to refund the amount which it has received from the complainant i.e. Rs.2,00,000/- along with interest at 12% per annum. Due to inaction of the O.P in not returning the amount, the complainant has suffered physical strain, mental agony and financial loss which we quantify at Rs.10,000/-. The Act of the O.P made the complainant to file this complaint by engaging advocate by paying his profession fee and also spent money in attending the Forums hearing on each and every day. We are of the opinion that if a sum of Rs.10,000/- if awarded towards litigation expenses, ends of justice will be met. The remaining prayer in the complaint is not substantiated with supporting evidence and documents and hence the same is rejected. We answer Point No.2 partly in the affirmative and we proceed to pass the following:-
ORDER
1. The complaint is partly allowed with cost.
2. The OPs i.e. Max Worth Reality India Limited Represented by its Managing Director/Deputy General Manager Marketing or its Authorized Signatory are jointly and severally are liable to and they are hereby directed to pay to the complainant a sum of Rs.2,00,000/- along with interest at the rate of 12% per annum on the above sum from 02.12.2013 till payment of full amount.
3. Further O.Ps are also directed to pay Rs.10,000/- towards damages and Rs.10,000/- towards cost of the litigation expenses to the complainant.
4. The O.Ps are 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.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 03th of September 2018)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
PW-1: Sri. Manjunathachari B.M. – Complainant.
Copies of Documents produced on behalf of Complainant/s:
Doc:No.1: Copy of the Receipts.
Doc.No.2: Copy of the Receipt.
Doc.No.3: Copy of the Bank Statement
Doc.No.4: Copy of cancellation letter
Doc.No.5: Copy of the Legal Notice.
Doc.No.6: Copies of the postal receipt and Postal
Acknowledgment
Doc.No.7: Copy of the reply letter
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Mr. Roopesh Sulegai.
Copies of Documents produced on behalf of Opposite Party/s:
-Nil-
MEMBER PRESIDENT
