ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in not registering the site and not constructing the house and for refund of Rs.6,50,000/- paid as advance along with interest at 18% p.a., and for compensation for causing mental agony, stress and for cost and other relief as the Commission deems fit.

2.      The brief facts of the complaint are that;

The OPs are the builders and developers undertaking formation of layouts, sites and taking up construction.  OP1 is a company. OP2 is its chairman and OP3 is its manager doing formation of layout/villa and constructing building. They advertised in a rosy manner in the newspaper as well as in the TV and offered sites and villas at “Square Town” near Sarjapur Town, Bangalore and offered the same for sale for Rs.33,00,000/- inclusive of a car as complimentary for purchasing villa/house.  Being influenced by the said advertisement, complainant wanted to purchase the same and paid Rs.20,000/- towards booking the said villa and opted site No.84.  OP obtained his photocopies of Ration card, election ID, driving licence, aadhar card for the purpose of verification, so as to confirm the site to construct the villa.  OP3 demanded the complainant to pay further Rs.1,00,000/- and he paid the same on 02.05.2016.   Complainant was also demanded to pay Rs.5,50,000/- which he paid by way of DD for Rs.5,00,000/- and Rs.25,000/- through debit card, and remaining Rs.25,000/- by way of cash.  For which OP issued the receipts.  In good faith he paid Rs.6,50,000/- towards purchase of the site/villa.  OP put some capricious condition after receiving Rs.6,50,000/- and also informed that in case he wishes to cancel the registration of the  booking he will be refunded the full amount within 30 days.

 3.     Complainant contacted OP3 in July 2016 regarding refund of the amount as there was no progress in the formation of the layout and OP failing to enter into agreement of construction.  He tried to contact the office of OP at Koramangala, Bangalore, during January 2017 and found that the office was closed and he came to know that the said office has been relocated at HSR Layout.  He went there to enquire about the refund of the amount, but the person one Vijay who was the employee gave an evasive reply.  Hence he had to lodge a complaint against OP3, on 30.05.2015, before the HSR Police station, wherein the said vijay gave undertaking on 07.06.2018 that they will settle the matter within one month. Inspite of it they did not do it.  On 24.10.2018 he received a message from employee of OP3, stating as last reminder, “complainant to pay the remaining amount in full within 60 days as per the terms and conditions mentioned in it, otherwise the allotment of the plot would be automatically cancelled and the advance amount paid will not be returned and demanded to pay the balance amount on or before 31.10.2018 and also informed that to avoid cancellation of the plot pay Rs.1,00,000/- as a part payment within next two days and extend the validity for 30 days through SMS, which is much against to the undertaking given by the official of OP3 before the police of HSR Layout. Not returning the amount, not allotting the plot amounts to unfair trade practice and deficiency in service.  

4.      Hence he had to issue a legal notice on 02.07.2020 demanding OP to refund the amount along with interest. After receipt of the notice, OPs have replied the same admitting and acknowledging the receipt of the amount.  They were suppose to refund the amount but failed to do so.  In view of the covid 19 situation the complaint filed is within the time limit as the Hon’ble Supreme Court of India and the Hon’ble High Court of Karnataka from time to time extended the period of limitation and hence prayed the commission to allow the complaint.

5.      Upon the service of notice, OP1 and 2 did not appear before the forum and hence placed exparte.  Notice against OP3 was published in the local Kannada Prabha newspaper by way of substitute service and the same was published in the said local daily newspaper.  The publication of the notice was held sufficient and inspite of it OP3 remained absent and hence placed exparte.

6.      In order to prove the case, complainant has filed his affidavit evidence and produced documents. Arguments Heard. 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 NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

8.     POINT No.1:-

   Perused the complaint, affidavit evidence and the documents produced by the complainant.  It is not in dispute that as per the documents filed marked as Ex.P1 to P4 OP being a builder and developer advertised regarding the layout they have formed and received Rs.6,50,000/- on various dates as per Ex.P3 and 4 in particular towards the sital value against the sale consideration of Rs.33,00,000/-.   Ex.P5 is the FIR against the OP wherein complainant gave a complaint against OP seeking the intervention of the police to recover Rs.6,50,000/-.  Ex.P6 is the undertaking given by one Vijay to settle the claim in one week time.  SMS have been sent demanding the complainant to make the balance of amount. Ex.P8 is the copy of the notice issued to the OP and P11 is the reply given to the same, wherein it is mentioned that the complainant agreed to purchase the villa site for Rs.33,00,000/- of which the sale consideration for the plot is Rs.13,00,000/- and the cost of construction is Rs.20,00,000/- and further it was agreed by the complainant that the cost of the plot to be paid in full within 60 days advance amount paid and afterwards sale deed would be executed and thereafter necessary approval would be obtained from the concerned officer for construction of the same.

        9.     It is also mentioned that besides admitting receipt of Rs.6,50,000/-, that, as per the terms and conditions of the contract between the parties, if the balance of sale consideration is not paid within 60 days, the amount paid by the complainant would be forfeited.  Agreeing to the above terms and conditions only, the complainant paid the advance amount and hence the complaint is not entitled for refund of the advance amount. Even though complainant was informed and requested to pay the amount towards the sital value, complainant did not pay the amount and hence it has to sell the said plot NO.84 to some other third party and the said site is not available for sale to the complainant. The complaint filed and the claim made is barred by time as per the limitation act.  Since the sale deed has been registered in favour of the third party now after lapse of four years the complainant has come with this complaint which is frivolous and that they have forfeited the amount paid as advance.  

        10.   Though OP has stated the said facts in the reply to the notice sent by the complainant no agreement of sale has been produced by either of the parties to no specifically what are the terms and conditions under which the said plot was to be sold to the complainant by the OP and for what for the complainant agreed in respect of the payment of sale consideration and in respect of payment of the amount towards construction.

        11.   In the absence of the said agreement, and both parties not producing before the commission, the terms and conditions which they have agreed into, it is to be noted here that OP has failed to prove before the commission that it was ready and willing to execute the sale deed in respect of said site/villa and that the same is formed in the layout.  Even assuming for the moment that the complainant failed to pay the sale consideration in time i.e., within 60 days due to which OP has sold the same to the third party, no document worth believing in respect of the same has been produced before the commission that too when the notice was served on them and also by way of substitute service on OP3. In view of the clear cut statement in the reply that they are entitled to forfeit the amount, amounts to deficiency in service in not refunding the amount and also not demanding the complainant to pay the balance amount and demanding the complainant to get the sale deed registered. Without rendering any service forfeiting the entire amount would be unfair, illegal and unethical. 

12.   In view of the claim of the OP that they have forfeited the amount of the complainant amounts to deficiency in service and unfair trade practice and hence we answer point No.1 in the affirmative.

13.   POINT NO.2

Having said so, since OP is doing business in selling the villas and constructing the houses for its customers, it has to spend some amount to maintain the office to pay the commission to the brokers, who bring prospective customers and has to maintain the register and the account and staff. In the result, OPs are bound to refund a sum of Rs.5,00,000/- out of Rs.6,50,000/- in view of the complainant backing out the agreement without giving any proper reasons for the back out in order to cover the administrative expenses and other related expenses that the OP might have incurred as expressed by us in the earlier para of this complaint. 

14.   Further act of OP in not refunding the amount at the earliest even though undertaking before the police regarding the getting the matter settle amicably, made the complainant to approach this Commission by engaging advocate and by spending time, money and energy besides paying the professional fee and also suffering mentally, physically and financially in not getting his amount paid to the OP.  Hence we direct OPs to pay Rs.25,000/- towards damages and Rs.10,000/- towards litigation expenses, besides refunding Rs.5,00,000/- as above along with interest at 12% p.a., from the date of this complaint till payment of the entire amount and answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to refund a sum of Rs.5,00,000/- out of the amount paid along with interest at 12% p.a., from the date of this complaint till payment of the entire amount.
3. OPPOSITE PARTY is further directed to pay Rs.25,000/- towards damages and Rs.10,000/- towards litigation expenses to the complainant.
4. OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. 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 failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 15^TH DAY OF MARCH 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: Compact Disc

Ex P2: Copy of the layout sketch

Ex. P3: Receipt for having paid the amount of Rs.1,00,000/- (R.No.A7232)

Ex P4: Receipt for having paid the amount of Rs.6,50,000/-(R.No.A8063)

Ex P5: Police complaint

Es P6: Letter of undertaking

Ex P7: SMS extract

Ex P8: Legal notice

Ex P9: Postal receipts

Ex P10: Postal acknowledgements and unserved covers

Ex P11: Reply to the notice

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

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                      MEMBER                   PRESIDENT

HAV*