Date of Filing:27.04.2020

Date of Disposal:31.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SMT.NANDINI.H.KUMBHAR, MEMBER

1. This complaint is filed by the complainant under section 35 of the C.P.Act, 2019 against the OPs alleging deficiency of service.

2.  The brief facts of the case is as follows:

The complainant is the member of the OP society and being the member of the society the complainant applied for the site and on the instruction of the OP the complainant has deposited a sum of Rs.10,00,000/- as sital value and Rs.3,350/- towards admission fee through cheques and OP has issued  receipt on 16.04.2017. The OP assured to form the residential  layout with necessary approvals  from the concerned authorities. Though OP issuing letter dt.29.12.2008, 21.06.2009, 17.09.2010 assured that the project would be completed and hand over the possession of the site. Having frustrated with false assurance the complainant demanded for refund of the amount with interest deposited, OP has assured to refund the amount deposited, but OP did not refund the amount. On running from pillar to post finally the president of the OP issued cheque dt.15.09.2018, which was dishonored. After statutory notice the OP has issued DD dt.23.01.2019 of Rs.5,00,000/- and assured to refund remaining amount in short period. After receiving the part payment, till date the OP failed to refund the amount. The complainant has issued legal notice dt.18.01.2022, but OP neither responded nor repay the amount. Aggrieved by the act of the OP the complainant prepared to file the complaint seeking refund of the money along with other reliefs.

3. Notice to the OP duly served, represent by counsel, despite of sufficient opportunity the OPs fails to file written versionand  version of OP is taken as not filed.

4. The complainant has also filed chief examination affidavit by reiterating the complaint allegations and also filed documents in support of their plea.

5. Heard arguments and matter is reserved for orders.

6. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1               :       Affirmative

Point No.2               :       As per final order

REASONS

8. POINT NO.1:- The complainant is the member of the OP society and being the member of the society the complainant applied for the site and on the instruction of the OP the complainant has deposited a sum of Rs.10,00,000/- as sital value and Rs.3,350/- towards admission fee through cheques and OP has issued  receipt on 16.04.2017. The OP assured to  form the residential  layout with necessary approvals  from the concerned authorities. Though OP issuing letter dt.29.12.2008, 21.06.2009, 17.09.2010 assured that the project would be completed and hand over the possession of the site. Having frustrated  with false assurance the complainant demanded for refund of the amount with interest deposited, OP has assured to refund the amount deposited, but OP did no refund the amount. On running from pillar to post finally the president of the OP issued cheque dt.15.09.2018, which was dishonored. After statutory notice the OP has issued DD dt.23.01.2019 of Rs.5,00,000/- and assured to refund remaining amount in short period. After receiving the part payment, till date the OP failed to refund the amount. The complainant has issued legal notice dt.18.01.2022, but OP neither responded nor repay the amount. Aggrieved by the act of the OP the complainant prepared to file the complaint seeking refund of the money along with other reliefs.

9. It is observed that the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case between Kotak Mahindra Old Mutual V/s Dr.Nishi Gupta, which is reported in CPC 2018(1) Page 325, in this case the Hon’ble NCDRC held that non-filing of the written version in the complaint which amount to admission of complaint allegations.

10. In view of the above facts and complaint allegations the complainant has produced the documents in support of their contention and the commission has opined that the complainant is the member of OP society. Being member of the society has deposited amount of Rs.10,00,000/-  as value of the site and also paid Rs.3,350/- towards admission fee. Despite of receiving the amount, the OP has failed to hand over the possession of the site even after assured period. The complainant has established all the facts by producing documents and payment receipts and the communication between the complainant and OP by way of letter and in which OP has replied that the OP will assured to hand over the site. In spite of assurance OP failed to hand over the possession of the site and assured to refund the amount deposited.  The OP refunded only Rs.5,00,000/- on 23.01.2019 to the complainant and assured to refund the remaining balance amount in short period. Even after receiving part payment, but till date OP has failed to refund the remaining amount to the complainant.

11.  In view of the above discussion and on perusal of the complaint averments and by considering the documents produced, the commission is of the view that there is a clear deficiency in the service of the OP. For which OPs are held liable to pay the remaining amount of the complainant along with other reliefs. Accordingly, we answer Point no.1 partly in the affirmative.

12. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                     ORDER

1. The complaint filed by the Complainant U/s35 of the Consumer Protection Act, 2019 is hereby allowed in part.
2.   The Ops are directed to refund the balance amount of Rs.5,03,350/- along with interest at 12% p.a. from the date of filing of the complaint till payment is made.
3.   The Ops are directed to pay compensation of Rs.50,000/- towards deficiency of service and Rs.5,000/- towards pain and suffering to the complainant together with cost of litigation Rs.5,000/- to the complainant.

4. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 31^stMay 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)         (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                  MEMBER

Witness examined on behalf of the complainant by way of affidavit:Sri SreedharMatam-Who being the complainant.

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:Nil

Documents produced by the OP:Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*