Date of Filing:27.05.2022

Date of Disposal:29.04.2023

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

SRI RAMACHANDRA.M.S,  PRESIDENT

1. The complainant files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OP to pay Rs.2,00,000/-  with interest at 24% p.a. from the date of payment till realization or to allot site, to direct the OP to pay Rs.30,00,000/- as opportunity lost cost, Rs.30,00,000/- as compensation towards damages, mental agony etc. suffered by the complainant  along with interest at 18% p.a. and such other reliefs.

2.   The following are the complaint's key facts: 

The complainant is interested to purchase the plot, he got registered with the OP, who is in the business of Real Estate and Land developer.The complainant intends to purchase the plot he has paid an amount of Rs.1,00,000/- on 27.08.2006, amount of Rs.1,00,000/- on 18.09.2006 and all the payment were made through cheques of complainant account. Upon receipt of the same the OP has issued receipt for the same. Totally the complainant has paid a sum of Rs.2,00,000/- towards purchase of plot from the OP.

3. It is the case of the complainant that on receipt of said payment, OP has issued a letter of allotment of priority number dt.26.10.2007 to the complainant. As per said letter site measuring 30X40ft OP has assigned the priority number-0152 and 0271 in the proposed OP layout at Ilavala, Mysuru District. The complainant being admitted the number of OP.

4. It is further case of the complainant that after said payment amount the complainant has approached the OP seeking for the allotment of the site measuring 30X40ft. in the proposed OP layout at Mysuru and the OP has promised to deliver the possession of the same and they have failed to oblige the allotment of the site by one or the another reason. Despite of the best efforts of complainant, the OP has failed to allot the site to the complainant as agreed. The complainant approached the jurisdictional police station by lodging criminal complaint before the police and the police have refused to interfere in the dispute of the complainant by saying that this  dispute is civil in nature. Hence, the police cannot interfere and subsequently he got issued legal notice on 17.03.2022 and there by  calling upon the OP to allot the site as agreed or  to refund the amount of Rs.2,00,000/- along with interest. Upon receipt of legal notice, OP replied though counsel refused to refund the said amount. Thereafter the complainant being aggrieved by the act and action of the OP he was forced to file present complaint and sought for relief of refund of the said amount along with other reliefs as prayed in the complaint.

5. Notice to OP duly served and represented by the counsel, they have filed version statement and affidavit  but not filed any supporting documents.

6.  The complainant filed chief-examination affidavit along with annexure documents in support of his contention.

7.  Heard arguments. The matter is reserved for order.

8.  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?

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

Point No.1                :       Affirmative

Point No.2                :       As per final order

REASONS

10. POINT NO.1:-  That The complainant intends to purchase the plot he has paid an amount of Rs.1,00,000/- on 27.08.2006, amount of Rs.1,00,000/- on 18.09.2006 and all the payment were made through cheques of complainant account. Upon receipt of the same the OP has issued receipt for the same. Totally the complainant has paid a sum of Rs.2,00,000/- towards purchase of plot from the OP.

11. It is the case of the complainant that on receipt of said payment, OP has issued a letter of allotment of priority number dt.26.10.2007 to the complainant. As per said letter site measuring 30X40ft OP has assigned the priority number-0152 and 0271 in the proposed OP layout at Ilavala, Mysuru District. The complainant being admitted the number of OP.

12. It is further case of the complainant that after said payment amount the complainant has approached the OP seeking for the allotment of the site measuring 30X40ft. in the proposed OP layout at Mysuru and the OP has promised to deliver the possession of the same and they have failed to oblige the allotment of the site by one or the another reason. Despite of the best efforts of complainant, the OP has failed to allot the site to the complainant as agreed. The complainant approached the jurisdictional police station by lodging criminal complaint before the police and the police have refused to interfere in the dispute of the complainant by saying that this  dispute is civil in nature. Hence, the police cannot interfere and subsequently he got issued legal notice on 17.03.2022 and there by  calling upon the OP to allot the site as agreed or  to refund the amount of Rs.2,00,000/- along with interest. Upon receipt of legal notice, OP replied though counsel refused to refund the said amount. Thereafter the complainant being aggrieved by the act and action of the OP he was forced to file present complaint and sought for relief of refund of the said amount along with other reliefs as prayed in the complaint.

13. The OP filed detailed version along with chief examination affidavit. The OP has denied the allegations of the complainant and any deficiency of service on their part during the course  of service to  the complaint. They have specifically contended that since there is due of payment from the complainant side for allotment of the said site. In spite of sending demand letters the complainant has failed to pay the balance sale consideration towards allotment of said site. By raising this reason the OP contended that the delay in allotting the site to the complainant is for the above reasons and since  complainant has delayed the payment of balance sale consideration due to the OP,  and OP is unable to allot the said site. They contended that there is no deficiency of service from their side and by contending the same they prayed for dismissal of the complaint as there is no deficiency in service on their part.

14. The complainant filed chief examination affidavit and also produced annexure documents in support of their contention. On perusal of contentions of both the parties and by considering necessary documents produced by the complainant in order to substantiate their contention, it is crystal clear that as per the contentions of the complainant there is an agreement between the complainant and the OP. Wherein the complainant has agreed to purchase the plot which is proposed to be formed by OP and as per the agreed terms the complainant has paid consideration amount of Rs.2,00,000/- and it is apparent from the face of the record. That upon receipt of the said amount the OP has failed to complete the formation of layout  and also miserably fail to hand over the possession  of said site  as agreed between them. 

15. The complainant has contended that he is ready and willing to pay the balance sale consideration amount to the OP on the date of delivery of possession of the said site. The conduct of OP is apparent from the face of the record and also there is clear violation of the terms and conditions from the OP site. The conduct of OP is visible from the facts of the complaint. The OP despite of receipt of said amount they have delayed both in  formation of layout and also  delayed in delivery of possession of the site to the complainant as per the agreed terms of agreement. This act and action could be termed as deficiency of service on their part. Consequently,  OP shall be held  liable to refund the said amount along with other reliefs granted in the complaint.

16. Since the OP is involved in the commercial transaction like real estate business. As the amount paid by the complainant is kept and used by the OP for his business purpose. When such being the case the OP is liable to pay higher rate of interest on the refund of said amount. Accordingly, the Point No.1 we answer in affirmative.

17. In view of the discussion and on perusal of the complaint averments and the contention of the OP, it is held that the OP is liable to refund a sum of Rs.2,00,000/- along with other reliefs granted in the complaint. In view of the above discussion, the Point No.1 we answer Partly in Affirmative.

18. POINT NO.2:- In the result, we passed the following:

ORDER

1. Complaint is allowed in part.
2. The OP is directed to refund Rs.2,00,000/- along with interest at the rate of 12% p.a. from the date of 19.09.2006 till payment is made  to the complainant.
3. The OP further directed to pay a sum of  Rs.25,000/- as compensation for deficiency in service and a sum of Rs.5,000/- towards litigation charges. OP fails to comply the order within 45 days from the date of order, compensation amount and cost of litigation shall  carry interest at 6% p.a. for non-compliance of the order from the date of order till payment is made.
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 29^th April 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 N.K.Narasimhan-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Sri Nagaraja Shetty

Documents produced by the OP: Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*