BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 22nd May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT. LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.52/2017
(Admitted on 18.02.2017)
Mr. M Laxman Prabhu,
S/o Late M. Dasa Prabhu,
Aged 83 years,
R/at Shridar,
C/o Vijaya Shenoy,
Prashanth Nagar, Derebail Village,
Mangaluru.
….. COMPLAINANT
(Advocate for the Complainant: Sri MRK)
VERSUS
1. Mr. Jayanth,
S/o Ganapathi Jogi,
Aged 47 years,
R/at Bhavishya Nagar,
Thiruvail Village,
Mangaluru Taluk,
2. Mr. Sathish Kumar,
S/o Sanjeeva Purusha,
Aged 40 years,
R/at. Malemar, Kottara Chowki,
Mangaluru.
No.1 and 2 are the partners of the firm
S.K. Builders & Developers,
Having its office at Bhavishya Nagar,
Thiruvail Village, Mangaluru.
…........OPPOSITE PARTIES
(Opposite Parties No.1 & No.2: Ex Parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims opposite party No.1 and No.2 are partners in S K Builders and Developers and entered into agreement for sale of residential apartment bearing No.302, measuring 990 Sq.ft built up area on the 2nd floor of the building known as S.K. Nidhi Apartments along with 6.36% undivided right in the schedule A of the immovable properties situated at Derebail Village shown in the agreement with complainant on 30.8.2012. The alleged sale consideration is fixed at Rs.30,00,000 was paid by complainant who is a senior citizen aged 83 years entirely depending on his daughter residing at Derevail village, Mangalore. In spite of repeat request and demands not complied with the demand. The complainant after knowing the opposite partys intention of cheating requested them to either to complete the construction and hand over possession of the apartment within extended time. Finally opposite party No.1 on behalf of S.K. Builders and Developers promised the complainant that he will return the amount of Rs.30,00,000 for non complying and accordingly a sum of Rs.15,00,000 was credited to complainants bank Syndicate Bank at Padubidri, Udupi District and issued another Cheque for Rs.10,00,000 drawn on Syndicate Bank, Hampankatta Branch, Mangaluru which was bounced on 25.5.2016 for the reason that Funds Insufficient. Later by another cheque dated 1.6.2016 opposite party credited this Rs.6,50,000 to complainants bank account and another cheque of Rs.3,50,000 was issued to complainant drawn on Syndicate Bank, Hampankatta Branch, Mangaluru. Even that cheque was also returned by complainant’s banker with the memo dated 29.08.2016 for the reason “Funds Insufficient” in account of the issue of the cheque. The legal notice issued returned on 14.09.2016 with endorsement as unclaimed. Hence seeks the reliefs claimed in the complaint.
2. Despite serving notice to the opposite parties not appeared before Forum hence placed Ex parte.
3. In support of the above complainant Mr. M Laxman Prabhu filed affidavit evidence as CW1 and produced documents got marked at Ex.C1 to C11 as detailed in the annexure here below. On behalf of the opposite parties not appeared and not filed any evidence.
4. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsel for complainant addressed oral arguments. We have considered entire case filed on record including evidence tendered by party. Our findings on the points are as under follows:
Point No. (i) : Affirmative
Point No. (ii) : Affirmative
Point No. (iii) : As per the final order.
REASONS
5. POINTS No. (i): The claim of complainant that they entered into an agreement with opposite parties for purchase of residential apartment building No.302 on 30.08.2012 is established on the sale consideration with complainant and also with original agreement entered between complainant and opposite parties as compiled in the complaint.
6. The allegation of complainant that has seen from the complaint the opposite party did not carry out the construction work hence promised to refund the part of the amount and two cheques were bounced and that the loss of the cheque of Rs.3,50,000 was bounced and remain unpaid. As such there is dispute of consumer and service provider between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
7. Points No. (ii): Ex.C9 is the original agreement entered between the parties. As seen from the complaint alleged of the amount of Rs.30,00,000 paid by opposite parties to complainant at the first instance Rs.15,00,000 credited to complainant bank account is admitted. For balance of Rs.15,00,000 opposite parties issued cheque for Rs.10,00,000 dated 27.02.2016 was bounced. Ex.C1 is the copy of the cheque, Ex.C2 the endorsed copy issued by the bank to complainant for bouncing of the cheque as Funds Insufficient, Ex.C3 is another cheque issued by opposite party to complainant on 01.06.2016 for Rs.3,50,000, Ex.C4 is the copy of the endorsement issued by Syndicate Bank to complainant even reason for bouncing was funds insufficient. Ex.C5 is the copy of the legal notice and Ex.C6 is the postal acknowledgement for receiving the legal notice, Ex.C7 is the copy of the complaint lodged by complainant against opposite parties under section 200 of CPC section138 of N I Act in J.M.F.C Vth, D K Mangalore. Opposite parties having not appeared before the Forum. Hence evidence of complainant has gone unrebutted. As such there is deficiency in service on the part of the opposite parties. Hence we answer point No.2 in the affirmative.
8. POINTS No. (iii): Out of amount advanced to opposite party Rs.30,00,000/ opposite party had refunded 15,00,000 and then another sum of Rs.6,50,000/ credited to complainant’s bank account. Hence the balance of the principal amount due from opposite parties to complainant is of Rs.8,50,000/ while ordering payment of this amount opposite parties shall be directed to pay with interest on this amount at 10% per annum from the date of legal notice till the date of deposit before the Forum. Opposite parties shall also be directed to pay jointly and severally compensation at Rs.50,000/ to complainant as complainant suffered for failure of opposite party to complete the construction work and also for mental torcher and physical strain. Wherefore the following
ORDER
The complaint is allowed with cost. Opposite parties are directed to pay jointly and severally a sum of Rs.8,50,000/ (Rupees Eight lakh Fifty thousand only) with interest at the rate of 10% per annum to complainant from the date of legal notice i.e.10.09.2016 till the date of deposit.
2. Opposite parties are also directed to pay a sum of Rs.50,000/ (Rupees Fifty thousand only) as compensation to complainant.
3. The above amounts shall pay within 30 days from the date of receipt of the copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 22nd May 2017)
MEMBER PRESIDENT
(LAVANYA M. RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. M Laxman Prabhu
Documents marked on behalf of the Complainant:
Ex.C1: 27.02.2016: Xerox copy of cheque bearing No.627063 Drawn on Syndicate Bank, Hampankatta Branch, Mangaluru for a sum of
Rs.10,00,000/
Ex.C2: 25.05.2016: Xerox copy of cheque return memo for the reason Funds Insufficient
Ex.C3: 01.06.2016: Xerox copy of cheque bearing No.632716 Drawn on Syndicate Bank, Hampankatta Branch, Mangaluru for a sum of
Rs.3,50,000
Ex.C4: 29.08.2016: Xerox copy of cheque return memo for the reason Funds Insufficient
Ex.C5: 10.09.2016: Office copy of the lawyers notice
Ex.C6: : Postal Acknowledgment with R.P.A.D Receipts
Ex.C7: 03.10.2016: Office copy of the complaint filed by the Complainant as against Opposite partys on the file of JMFC Vth, Mangaluru
Ex.C8: : Xerox copy of Agreement Copy
Ex.C9: 30.08.2012: Original copy of the Sale Agreement
Ex.C10:27.04.2017: Statement of accounts from Syndicate Bank, Padubidri Branch
Ex.C11: 28.04.2017: Statement of accounts from Syndicate Bank, Mission Street, Mangaluru
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 22.5.2017 PRESIDENT
