BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 08th February 2017
PRESENT
SRI. RAVISHANKAR : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO.236/2015
(Admitted on 23.07.2015)
Mr. Marian Menezes,
Aged about 62 years,
S/o Late Michael Menezes,
Residing at #804, Monalisa Residency,
Bejai Church Road, Bejai,
Mangaluru 575004. ……… Complainant
(Advocate for Complainant by Sri. SKU)
VERSUS
- Skyline Construction and Housing Pvt.Ltd,
No.11, Hayes Road,
Bangalore 560025
Represented by its Director,
Mr.Dhiraj Prabhu
- M/s Eternity Developers Pvt.Ltd,
No.11, Hayes Road, Bangalore-560025.
Represented by its Director,
Mr. Avinash Prabhu,
- Skyline Construction and Housing Pvt.Ltd,
Ground Floor, Manasa Towers, Kodialbail,
Mangalore 575003
Represented by its Director,
Mr.Dhiraj Prabhu.
……. Opposite Parties
(Opposite Party No.1 and 3 : Exparte)
(Advocate for opposite party No.2. Sri: VK)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
I. The above complaints are filed under Section 12 of the Consumer Protection Act alleging deficiency in service in housing construction against the common Opposite Parties claiming similar reliefs.
The brief facts of the case are as under:
The Complainant filed the above complaint against the opposite parties for deficiency in service in housing construction. The complainant in the above complaint stated that the opposite parties are the Promoter/Developer of the proposed “BAY VIEW” Apartment at Skyline Blue Berry Hills, phase 3, Yeyyadi, Mangalore. The complainant booked one residential apartment consisting of 2 BHK Flat No.1401 in “B” Block on 14th Floor measuring 1154 Sq.Ft. with a covered car parking slot, for a total consideration of Rs.1,00,000/ with the opposite parties on 14.09.2013 and in turn opposite parties direct the complainant to pay certain sum of money mentioned in the complaint. The opposite parties assured that the proposed apartments will be completed in all respect within 24 month from the date of the booking. Believing opposite parties, the complainant entered into agreement and paid certain sum of money as mentioned in the complaint to the opposite parties as demanded by them. The complainant ready and willing to purchase the aforesaid apartments but opposite parties not even started the construction work and failed to provide the copies of the concerned documents of the apartments, inspite of repeated demand made by the complainant. After waiting long period the complainant got issued various e-mail requesting the opposite parties to refund the entire amount. But the opposite parties failed to comply the same. Hence the above complaint is filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act,) seeking direction from this FORA to the opposite parties to refund the entire sale consideration paid by the complainant to the opposite parties and also compensation and costs of the proceedings.
II. Version notice served to the opposite parties by RPAD. The opposite party No.2 filed version. And Opposite Party No.1 and 3 placed exparte. Except Eternity Developers Pvt. Ltd. rest of the opposite parties in spite of receiving notice not appeared nor represented case till this date. Hence rest of the opposite parties placed Ex parte. Opposite Party eternity developers Pvt. Ltd. represented by its Managing Directors appeared through their counsel filed version stated that, the complaint is premature and the complainant only paid two installments and rest of the amount not paid inspite of the demand made by them. It is stated the opposite parties provided all the relevant documents to the complainant and stated that there is no cause of action to file the complaint and the complainant are not the consumers and this FORA has no jurisdiction to entertain the complaint and the complainant has to approach the civil court and sought for dismissal of the complaint.
III. In view of the above said facts, the points now that arise for our consideration in above complaints are as under:
- Whether the Complainants are proved that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
In support of the complaint Mr. Marian Menezes the complainant examined as CW1 and produced documents got marked Ex.C1 to C8. The complainant produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the FORA and answered the points are as follows:
Point No.(i) and (ii): Affirmative.
Point No.(iii): As per the final order.
REASONS
IV. POINTS No. (i) and (ii):
The complainant lodged the complainant against all the opposite parties for claiming the refund of a total sum of Rs.7,86,175/ with interest on the ground of deficiency of service and unfair trade practice involved therein to him. The matter involved there in that the opposite parties are the Promoter/Developer of the proposed “BAY VIEW” Apartment at Skyline Blue Berry Hills, phase 3, Yeyyadi, Mangalore. The complainant booked one residential apartment in “B” Block on 14th Floor measuring 1154 Sq.Ft for Rs.29,42,700/. With a covered car parking slot, for a total consideration of Rs.2,00,000/ with the opposite parties on 14.09.2013. In turn, on believing he paid Rs.1,00,000/ by cheque No.034756 dated 14.09.2013 drawn on Karnataka bank and opposite party at the time of booking have assured the said proposed building will be completed within 24 months and delivered. As such on receipt of the further part sale consideration opposite party assured, sending a sale agreement regarding terms and conditions within 10 days of the said booking. On enquiry by the complainant with opposite party for its development, opposite party issued a demand notice dated 19.09.2013 for demanding further amount of Rs.7,85,675/, On that basis complainant’s paid sum of Rs.5,00,000/ by way of cheque NO.034758 dated 14.11.2013 and another sum of Rs.1,86,175/ by cheque No.034759 dated 14.11.2013 both drawn on Karnataka Bank Mangalore. As such, so far paid in all Rs.7,85,675/ to the opposite party by the complainant, despite no documents nor executed any agreement of sale, in favour of complainant by the opposite party. But the complainant is and was always ready and willing to purchase the apartment by paying the balance sale consideration, as per the wordings of him. Further he also already arranged for the fund. Regarding the said payment made in all Rs.7,85,675/, the opposite party given the receipts. Despite no progress either in construction work or in sale transaction. But, the opposite party kept quite by keeping the said huge amount. It seems the deficiency of service and unfair trade practice to the complainant by all the opposite parties.
On registration of the above case this forum sent notice to them even in spite of due service of the same then the complainant examined by filing his sworned affidavit and his documents are got marked as ExC1 to C6. And case proceed for final orders on merits after hearing the arguments. Opposite Party No.2 contended that there is no sale agreement was executed but on perusal of Ex.C1 to C6 it is clear that the Opposite Party No.2 is received amount stated above in this case. Defense taken by the Opposite Party No.2 is not true. Further we noted that the Opposite Party No.2 admitted in his evidence para No.5. the complainants have booked one flat in the said bay view Apartment building after verify the land documents. It is clear admission of the Opposite Party No.2 is that the complainant booked a flat hence once again proving Execution of sale agreement does not arise. Hence admission of Opposite Party No.2 is enough to prove the case. Now, with all the above materials available both oral and documentary, our considered opinion that once the said huge amount was paid of a sum of Rs.7,85,675/ and all the due receipts have been drawn and also none of the opposite party have appeared, except Opposite Party No.2 it is enough to conclude that above points have been answered by us in the affirmative, as it is a case of a pure deficiency of service and unfair trade practice, on the motive of grabbing money from the general public with false assurance, in order to cause wrongful loss and damage to complainant and in order to have wrongful gain. Therefore, on that ground alone any of the opposite party have no any right in keeping the money of the complainant without any reason. Hence the opposite parties are liable to refund the entire amount of Rs.7,85,675/ with interest at the rate of 12% p.a from date of complaint till realization. Further when unnecessarily keeping the said huge money by the opposite party without any reason the opposite parties are liable to pay compensation for a sum of Rs.25,000/, for causing harassment and mental agony till the date to the complaint. Further they also liable to pay another sum of Rs.5,000/ towards cost and litigation expenses incurred by the complainant.
In the result, we pass the following
ORDER
The complaint is allowed. Opposite parties are jointly and severally liable to pay for a sum of Rs. 7,86,175/ (Rupees seven lakh eighty six thousand one hundred seventy five only) along with interest at the rate of 12% p.a from the date of complaint till realization. Further, Opposite Parties are liable to pay compensation for a sum of Rs.25,000/,(Rupees twenty five thousand only) and pay sum of Rs.5,000/ (Rupees five thousand only) towards cost and litigation expenses incurred by the complainant. Payment shall be made within 30 days from the date of receipt of this order.
The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.
(Page No.1 to 8 directly dictated by Member to computer system to the Stenographer typed by him, revised and pronounced in the open court on this the 8th day of February 2017.)
MEMBER PRESIDENT
(SMT.LAVANYA M. RAI) (SRI. RAVISHANKAR)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1: Mr. Marian Menezes.
Documents marked on behalf of the Complainant:
Ex.C1: 14.09.2013: Application Form.
Ex.C2: 19.09.2013: Demand notice issued by Opposite Parties
Ex.C3:23.10.2013: Receipt for Rs.1,00,000/.
Ex.C4: 14.11.2013: Receipt for Rs.5,00,000/.
Ex.C5: 14.11.2013: Receipt for Rs.1,86,175/.
Ex.C6: 22.02.2015: Legal notice issued to the Opposite Party.
Ex.C7: Acknowledgement.
Ex.C8: Notarised copy of the bank statement.
Witnesses examined on behalf of the Opposite Party:
RW1: Dhiraj Prabhu,
Documents Marked on behalf of the Opposite Party:
Nil
Dated: 08.02.2017. MEMBER
