Date of Filing: 28/06/2016

Date of Order: 24/08/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 24^THDAY OF AUGUST 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.903/2016

Vs

ORDER

BY SRI.D.SURESH, MEMBER.

1.     The Complaint is filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not handing over the apartment agreed to be sold in his favour, and for direction to the Opposite party to refund the earnest money of Rs.4,00,000/- with interest @ rate of 24% per annum from the date of filing of this complainant till the realization, to pay a sum of Rs.2,00,000/- towards unfair trade practices and deficiency service, to pay a sum of Rs.2,50,000/- towards compensation for hardship mental agony, inconvenience, caused to the complainant and also Rs.2,5000/- towards litigation expenses and such other reliefs as this Hon’ble Forum deems fit. 

2.     The brief facts of the complaint are that; the O.P is a Private Limited Company engaged in the business of developing residential layout. The O.P offered to sell the site in survey No.246 of Magadi Road known as Temple Town project” by KRK properties Pvt. Ltd., for Rs.16,00,000/- and received part consideration of Rs.4,00,000/- paid through  cheque bearing No.082760 dated 09.04.2011 as booking advance money in favour of the OP and same was drawn on Corporation bank RPC Layout Vijaynagar  Bangalore for having received the same by issuing a cash memo / bar receipt No.0277 dated 9.04.2011.   He was waiting for further instructions regarding execution of sale deed by receiving the balance of sale consideration amount.  When complainant contacted the OP, OP informed that there is legal impediment with regard to the title of the propriety in respect of the Temple Town, suggested to get a site in lieu of said site in “The Heritage Project situated at Mysore Road Bidadi. Even after waiting for a considerable period of time, OP did not come forward to register the same and went on postponing the execution of the sale deed. After having lost trust and faith, he contacted the OP several times to repay the earnest money along with interest. On 10.10.2015 Op issued cheques bearing No. 711808, 711809 and 711810 dated 15.11.2015 and 15.01.2016 drawn on corporation bank for an amount of Rs.2,08,000/- each in total Rs.6,24,000/-. After waiting about 2 months complainant presented the cheques. To his shock and dismay, the cheques were dishonoured for funds insufficient. The same was intimated to OP.  Left with no other option, the complainant issued a Legal notice on 11.04.2016. Inspite of it, OP has neither replied nor come forwarded to make payment of advance amount. Hence  this compliant.

3.     Upon the issue of notice, O.P. appeared through his advocates and filed their version. He has contended that the complainant had suppressed material fact and this Forum has no jurisdiction to entertain the complaint and further the OP submitted that the complainant had approached the Hon’ble Forum for the relief of recovery of amount on the strength of the bounced cheques when such being the true affairs of the case present complaint is not maintainable as no legal sanctity, hence it is liable to be dismissed.

4.      In order to substantiate their case, the parties have filed their affidavit evidence and documents. Heard the arguments. Following points  arise for our consideration:-

                   (1)   Whether the complainant has prove

                        deficiency in service on the part of the O.P?

(2)  Whether the complainant is entitled to

      the relief prayed for in the complaint?

5.     Our answers to the above points are:-

POINT 1: In the Affirmative.

POINT 2: Partly in the affirmative

                As per the final order:

REASONS

POINT No.1:-

6.     On perusal of the pleadings of the parties and the evidence on record, it is an undisputed fact that, the complainant entered in to an agreement of sale to purchase residential site in the proposed layout named as “TEMPLE TOWN”  to be formed by the O.P  and paid amounts to the O.P as mentioned above.

7.   Further on perusal of the evidence, O.P being the company, has not stated anything regarding the completion of the layout formation, and registering the sale deed in favour of the complainant. If at all he has completed the layout formation in all respect, and ready for registration, he would have demanded the complainant to pay the balance of sale consideration and to get the registration of the sale in his favour. The averment of the complainant that there was some legal problems in respect of the  said project, the OP  offered alternative site  in the Heritage project situated at Mysore road Bidadi has not been denied by OP. Even after waiting for a considerable period, Op has not come forward to register the same infavour of the complainant.  The three cheques issued has been dishonoured. Inspite of issuing legal notice demanding for repayment of money, Op did not come forward to comply the demand made by the complainant. This amounts to  unfair trade practice and deficiency in service.  

8.     OP has not stated anything in this regard in the version filed by O.P. The documents produced clearly shows that O.P is a registered company with Registrar of Companies having its registered office at 4^th cross, Central excise Layout, Vijayanagar, Bangalore and also at Hampi Nagar Vijayanagar, Bangalore. It is not a partnership firm, where in all the partner had to agree for the sale. Hence the reliance placed on the judgment by the O.P in his written arguments do not hold any water.

9.   Though O.P has taken a contention that this Forum has no jurisdiction to decide this complaint and the complainant ought to have filed suit for Specific Performance of Agreement of Sale before the Civil Court or before the authorized person under Real Estate Act also do not hold water, since Section 3 of the Consumer Protection Act is in furtherance of other statute. Hence this contention is not acceptable.

10.    The receipt issued by the Op and bank statement of the complainant clearly go to show that Op has received a sum of Rs.4,00,000/- as advance for the site in the aforesaid project and further agreed to get the sale deed registered.  Op has also undertaken to provide the required facilities for the formation of the residential sites. When the complainant made demand for the repayment of advance amount, OP issued three cheques but same were dishonored. It clearly goes to show that the OP intentionally not kept sufficient funds in his account thereby he cheated the complainant and even after receiving legal notice Op did not come forward to make repayment of the same. This amounts to deficiency in service and negligence and unfair trade practice. Hence we answer Point No.1 in the Affirmative.

POINT NO.2:

11.  Under the circumstances, we hold O.P. is liable to pay the amounts paid by the complainant i.e., Rs.4,00,000/- as shown in the receipt and bank statement of complainant  along with interest at the rate 12% per annum from the date of receipt of amount till payment of the same. Further the complainant has claimed compensation of Rs.2,00,000/- towards physical and mental harassment. No concrete evidence has been placed in that respect. Inspite of it, having paid the advance sale consideration, hoping for the registration of the site in their favour since 2011, they have lost their mental peace, put to mental tension, physical strain and financial loss. Had he invested the same amount in any of the real estate properties, the value of the property would have increased by five to six times and the complainants have lost the capital appreciation of the property. Hence we are of the opinion that if a sum of Rs.25,000/- towards damages  and Rs.10,000/- towards cost of proceedings and litigation expenses if ordered to pay to the complainant would meet the ends of justice.

12.   The counsel for the complainant has relied on the judgment passed by the Honourable SUPREME COURT OF INDIA in Civil Appeal Nos.4432-4450 of 2012 – M/s. Narne Constructions Pvt. Ltd. Vs Union of India wherein it is held by relying on the judgment of Lucknow Development Authority Vs M.K. Gupta (1994)I SCC 243 that in a transaction of sale of developed plot by the developer to the customers, there is relationship of  service provider and the consumers and hence Consumer Protection Act is applicable.

13.   It has also held in 2014 SCC NCDRC 266 Ravi Development Builders and others Vs JayanthiBai V Ranka and others that the purchase of the house/site falls under the Consumer Protection Act.

14.    In view of the same, we answer point No.2 Partly in the Affirmative and pass the following:

ORDER

1. The complaint is hereby partly allowed with cost.

2. O.P. is hereby directed to pay a sum of Rs.4,00,000/- to the complainant being the advance sale consideration received by the complainants along with interest at the rate 12% per annum from the date of receipt of amount till payment.

3. Further O.P is hereby directed to pay Rs.25,000/- towards damages and Rs.10,000/-  towards cost of proceedings and litigation expenses to the complainant.

4.  The O.P 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.

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 24^thDay of AUGUST 2018)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

  PW.1 Sri. –Sharath Kumar   Complainant

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1:            Copy of the Boucher

Doc.No.2:            Copy of the receipt

Doc.No.3:            Copy of the bank pass book

Doc.No.4:            Copy of the Boucher

Doc.No.5:            Copy of the 2 Rs. Stamp paper

Doc.No.6:            Copy of the cheqeus

Doc.No.7:            Copy of the legal notice

Doc.No.8:            Copy of the postal receipts

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

RW-1: Sri K.R. Kannan for O.P

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER                        PRESIDENT