Complaint filed on: 15-12-2011
Disposed on: 28-06-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.2282/2011
DATED THIS THE 28th JUNE 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Smt.S.K.Vidya
No.112, 3rd Cross,
Bhuvaneswarinagar,
BSK 3rd Stage,
Katriguppe,
Bangalore – 85
V/s
Opposite parties: -
1. Mr.Sanjayraj, Director
2. D.Amarnath, Director
3. Prisha Properties India Private Ltd, 869, 80 feet road, 8th Block, Kormangala, Bangalore – 95
Reptd by Mr.Sanjayraj, Director
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the Ops, praying to pass an order, directing the OPs to refund an advance amount of Rs.9,99,999=00 with interest at the rate of 12% per annum, escalation charges and harassment charges.
2. The brief facts of the complaint can be stated as under.
The complainant has subscribed for plot no.81 in Golden Valley Project of the developers on 31-5-2011 by paying a sum of Rs.9,99,999=00 vide receipt no.Parish/11/Golden Valley/03, dated 6-6-2011. As per the oral assurance by the Ops, the site was registered by July end, the complainant started pursuing the Ops for registration of the site from July itself, and kept on promising the complainant, and ultimately on 29-9-2011 the complainant sought refund of an advance amount paid by him as the OPs have not kept up their promise. Incidentally, when he was going through, she took comments on the net that, these are the persons, who call themselves as Golden Gate Constructions and they have changed the name M/s.Prisha Properties India Private Limited. The complainant interaction with the sales manager Mr.Guruprasad, and Mr.Bhanumurthy, Project-in-charge has yielded no results and the notice of the complainant via internet/phone calls have met with zero response, and as such, the complainant requests this forum take up this case and do justice to the aggrieved complainant by getting refund of the funds deposited by her with interest and cost of escalation of construction as the site was going to be purchased for starting an old age home. As the intention of the complainant was a social cause, the unprecedented delay on the part of the OP has created lot of anxiety and mental agony. The complainant wanted to start an old age home in her mother’s memory and she has been put to lot of hardship and the money of Rs.9,99,999=00 and her retirement benefits has gone in the hands of unscrupulous hands and the life objective being delayed. So, the complainant requested the forum to act swiftly and get justice by allowing the complaint of the complainant, praying to refund an advance amount of Rs.9,99,999=00 with interest at 12% per annum, and escalation charges and also the harassment charges and in total the complainant has prayed for a sum of Rs.16,79,000=00. Hence, the present complaint is filed.
3. After filing of the complaint, notice was issued only to the 3rd OP, and he has appeared through his counsel and filed objections.
4. The averments of objection of the 3rd OP can be stated as under:
The complainant who being the customer had booked plot no.81 in Golden Valley Project on 31-5-2011, situated at Hemmigepura village, Kengeri hobli, Bangalore South Taluk. After entering into plot booking formalities, the complainant had given an advance amount of 9,99,999=00 by way of cheque bearing no.173627 dated 05-06-2011, drawn on Sir M.Visveshwaraya Co-operative Bank, Bangalore branch, issued in favour of Prisha Properties India Pvt. Ltd, Bangalore and the OP had got the cheque realized in its name and acknowledged the receipt of the same. On 29-9-2011, the complainant had sent an e-mail to the OP and expressed her willingness to cancel the above mentioned flat and accordingly, the OP had accepted the same. Thereafter, the complainant has filed a case in this forum. The complainant has filed another case on the same facts of the case against the M/s.Prisha Properties India Private Ltd, Kormangala Bangalore on 15-12-2011 addressed to DGP/IGP Karnataka, Bangalore, and that complaint was registered in the Koramangala Police Station based on direction from DGP/IGP, the ACP Adugodi PS had conducted the detailed Investigation about the case and on 16-1-2012 before the ACP, Adugodi police station and the police sub-inspector, Kormangala Police Station, Bangalore, the OP had agreed for amicable settlement for a sum of Rs.10,00,000=00 as full and final and accordingly the complainant on the same day had given a undertaking letter in her own handwriting addressed to the Sub-inspector of police, Koramangala police station, Bangalore and in that letter she has undertaken to withdraw the case filed by her in Bangalore Urban District Disputes Redressal Forum, Bangalore complaint bearing no.2282/2011 and also has undertaken withdraw her complaint filed before the DGP/IGP on 15-12-2011. Accordingly, the complainant had received a sum of Rs.9,50,000=00 + Rs.50,000=00 as compensation amount and totally an amount of Rs.10,00,000=00 is paid as full and final settlement by way of cheque bearing no.000221 dated 27-1-2012 for Rs.5,00,000=00 drawn on Indian Bank, MG Road branch, Bangalore, and cheque in favour of Smt.S.K.Vidya issued by the OP, the OP has issued one more cheque for remaining balance amount of Rs.5,00,000=00 vide cheque bearing no.000222 dated 2-2-2012 drawn on Indian Bank, MG Road branch, Bangalore in favour of Smt.S.K.Vidya issued by OP M/s/Prisha Properties India Pvt. Ltd, both cheques for Rs.5,00,000=00 each got honoured on 28-1-2012 and 3-2-2012. So it is prayed to dismiss the complaint and pass a necessary order in the interest of justice and equity.
5. So from the averment of the complaint of the complainant and objection of the 3rd OP, the following points arise for our consideration.
1. Whether the complainant proves that, after seeing comments in the inter net, she came to know that, the Ops are used to call themselves as Golden Gate Constructions and they have changed their name as M/s.Prisha Properties India Private Ltd, and her interaction with the sales manager is yield no result, so she is entitled for return of the amount paid by her alongwith interest and cost?
2. What order?
6. Our findings on the above points are;
Point no.1: In view of the settlement arrived
between the parties on 16-1-2012, we answer this point in a negative
Point no.2: For the following order
REASONS
7. So as to prove the case, the complainant has filed her affidavit by way of evidence, and produced three copies documents as annexure-1 to 3. On the other hand, one Ravi Chandra, Director of OP no.3 has filed his affidavit on behalf of OP no.3, and produced four copies of documents. We have heard the arguments of both sides. We have gone through the oral and documentary evidence of both parties in between the lines.
8. One S.K.Vidya, who being the complainant has stated in her affidavit by way evidence that, she had booked plot no.81 in the Hemmigepura Venture, and as per the terms and conditions, the OP should have entered into an agreement of sale as she had already remitted 40% of the amount. There is laxity on their part in not doing so and capitalizing the amount remitted by her, they promised that the flat would be handed over to her latest by July end to facilitate construction of her old age home. After insistence that too over telephone which came to know that the project will be coming up in the near future and personal interaction with them did not yield any result, she resorted to search the internet wherein she found that these developers were playing a fraud with the people. So she filed the complaint before the district forum, she resorted to filing a complaint with DGP/IGP, and the Assistant Commissioner of police also advised her to accept the cheque given for the moment as principal was given and then approach him for the interest part and he would talk to the directors of the company. On insistence from ACP, she resorted to give it in writing that she will be withdrawing the case. However, her letter evidently mention that she has not said that, she has accepted the cheques in full and final settlement, her letter to the forum dated 25-1-2012 and also clearly mentions that she reserve her right to claim the interest and damages. So she prayed the forum to award Rs.96,000=00 towards interest at the rate of 12% per annum from 4-6-2011 to 4-4-2012 on Rs.10,00,000=00, escalation charges of Rs.6,00,000=00, and harassment charges of Rs.10,000=00 and in all she prayed to pass an order for a sum of Rs.7,06,000=00
9. By reading the averments of the complaint and evidence of the complainant as mentioned above, it is made to understand that, the complaint was filed before this forum on 15-12-2011 by the complainant claiming Rs.16,79,000=00 which includes an advance amount, interest etc. Subsequent, to filing the complaint, the complainant was called to the ACP office, Bangalore and she was given the cheques of Rs.10,00,000=00, and the complainant has given a letter in hand writing before the ACP office, but the complainant has not produced the said letter before the forum. It is OP no.3 who was produced the letter given by the complainant before the police dated 16-1-2012, the said letter copy dated 16-1-2012 given by the complainant goes to demonstrate that, on 16-1-2012 the complainant of this case had received two post dated cheques bearing no.000221 and 000222 for Rs.5,00,000=00 each from the 3rd OP towards settlement of her claim amount in respect of booking plot in Golden valley and she undertook to withdraw the case filed before this forum bearing complaint no.2282/2011, and she hereby undertakes to withdraw her complaint filed with DGP/IGP on 15-12-2011, and the complainant admitted during the course of arguments that to the said letter she signed. But in the said letter given by the complainant before police, it is not stated by the complainant that she signed on account of force of the police and she accepted the cheques only toward the principal amount and not towards interest and other charges as stated in the evidence of the complainant. The entire letter copy given by the complainant before police is ominous silent with regard to claiming the interest and other charges. The OP has also produced copies of two cheques for Rs.5,00,000=00 each having signature of the complainant for having received the cheques subject to realization and bank statement copy of OP is produced, and that statement goes to show that, two cheques issued by the OP in the name of the complainant were debited from the account of the 3rd OP, and the 3rd OP has also produced copy of booking form given by the complainant and on the second page, the payment details of the complainant are mentioned, and that particular shows that, the complainant has paid Rs.9,99,999=00 to the OP for booking the plot in Golden Valley.
10. The evidence of the complainant that, the cheques received by her in the police station were only towards the principal amount and not towards interest and other charges is not supported by any documentary evidence. On the other hand, letter copy dated 16-1-2012 given by the complainant before police shows that on that date, the complainant received two cheques dated 27-1-2012 and 2-2-2012 for Rs.5,00,000=00 each towards settlement of her claim amount pending realization and she undertook to withdrawn the present case. Subsequently, the complainant has submitted one letter dated 25-1-2012 to the forum stating that on 16-1-2012 the representative of OP issued two cheques for Rs.5,00,000=00 each in her favour and on the advise of Assistant Commissioner of police, she has given a letter, stating that she will withdraw the case subject to realization of the case. However, she reserved her right to claim interest and also damages for harassment. If really, the complainant intended to claim the interest and other charges, she would have stated in her letter dated 16-1-2012 that she is receiving the cheque only towards principal amount and she is having liberty to claim interest and damages. Instead of doing so, she gave a letter on 16-1-2012 before police officer stating that she has accepted the cheques towards the settlement of her claim and she will withdraw the present case. When once the present matter was settled before Police on 16-1-2012 for Rs.10,00,000=00 as per letter copy of the complainant and she undertook to withdraw the present case, in view of the settlement, it does not lie in the mouth of the complainant to reiterate on surmised conjecture that amount received by her in the police station through cheques is only towards principal and not towards interest and damages. During the course of arguments, when we asked the complainant about execution of letter dated 16-1-2012 by her before Police, she admitted clearly that, the said letter dated 16-1-2012 is her own hand writing and she signed the said letter. So, in view of admission the contents of letter dated 16-1-2012 and signature, the complainant cannot take defence or stand contrary to contents of the said letter. The complainant who got settled the matter before Police for Rs.10,00,000=00 she has no locus-standi to prosecute the present complaint claiming interest, damage and harassment charges. Though the settlement was taken place in the office of the Assistant commissioner of police, Bangalore on 16-1-2012 by hand writing in the form of letter, it is binding on the both parties. The complainant cannot over look the said letter dated 16-1-2012 given by her, in her own hand writing. The oral evidence of the complainant that, she is entitled for return of advance amount, interest, escalation and harassment charges etc. is not corroborated by any clear and tangible documentary evidence. So, in view of the compromise between the parties on 16-1-2012 in the office of Assistant Commissioner of Police, Bangalore, we do not intend to go through the oral evidence of OP no.3. So, looking at the letter copy of the complainant dated 16-1-2012 produced by the OP no.3, we are of the opinion that, the complainant has failed to prove this point satisfactorily, and she cannot maintain the present complaint, in view of the settlement arrived between the parties on 16-1-2012 in the office of the Assistant Commissioner of Police, Bangalore. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is dismissed, in view of the settlement made between the parties dated 16-01-2012. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 28th day of June 2012.
MEMBER MEMBER PRESIDENT
