O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> The grievance of the complainant against the Ops in brief is that they are the husband and the wife. That Op No.2 introduced a residential project called “ Confident Auriga II ” in certain lands of Thoranahalli Village and on their request of plot No.163 measuring 30’ X 50’ was allotted and the cost of the plot was fixed as Rs.6.00 lakhs out of which they were required to pay 30% of the cost before 17/01/2008 and the balance 70% was to be arranged by the Ops as loan from any bank. A Memorandum of Understanding was entered into in which it is stated that in case if approval, process is not completed or delayed beyond six months they are at liberty to cancel the blocking of the Plot and the Ops are liable to refund the amount paid along with interest @ 15% p.a. That they have paid Rs.1,80,000/- towards 30% of the cost of the site and the Ops have also collected later Rs.2,500/- and another stage Rs.2,000/. That they later on came to know that the project was under litigation. That Op No.2 who had agreed to arrange loan of Rs.4.00 lakhs did not do so. Thereafter, the bank which they had applied for loan has rejected their application for loan. Then on their request to refund their money Op No.1 has issued a cheque for Rs.1,75,000/- only without paying the full amount and interest. Therefore, have prayed for a direction to Ops to pay interest on Rs.1,80,000/- from 19/12/2007 for a period of six months and future interest @ 24% p.a and also to award compensation of Rs.50,000/- towards hardship caused to them.<br /> <br /> Ops have appeared through their advocate, Op No.1 has filed version where as the counsel for Op No.2 has filed a memo adopting the version of Op No.1. Op No.1 in his version admitted to had entered into a Memorandum of Understanding with the complainant and allotment of site bearing No.163 and fixing the cost of Rs.6.00 lakhs. He has also admitted that Rs.1,80,000/- is paid by the complainants and the balance of Rs.4,20,000/- was to be paid within 15 days from the date of approval of the plan. It is further contended that plan was got sanctioned on 29/03/2008 and the same was intimated to the prospective purchasers including these complainants and they were also given option to select the sites of their choice. Accordingly, complainants selected plot No.163 and on their request allotment letter was issued on 03/07/2008 allotting plot No.163 to the complainants. The Ops have denied that Op No.1 had agreed to arrange loan for the balance payment of 70% of the sital value and stated that bank has refused to grant loan to the complainants on their failure to produce necessary documents. It is therefore stated that the complainants who paid Rs.1,80,000/- despite time was given to them to pay the balance amount have not paid the balance sital value, as the result on the request of the complainants advance amount paid by them was refunded. The Ops further denying receipt of Rs.2,500/- and Rs.2,000/- have called upon the complainants to strict proof of the same. They have stated that they have deducted Rs.5,000/- towards processing charges incurred by them and denying to had agreed to get the loan sanctioned in favour of the complainants have stated that they got the layout plan approved and sites are sold to other members and denying any deficiency at their end have prayed for dismissal of the complaint.<br /> <br /> In the course of enquiry into this complaint, the second complainant and the first Op have filed their affidavit evidence, where as second Op has not filed. Complainants along with complaint have produced a copy of allotment letter, a copy of letter addressed to them by the first Op, copy of Memorandum of Understanding, copy of the letter of Axis Bank refusing to sanction loan to the complainants, with copy of the receipt proving the payment of Rs.1,80,000/-, with a copy of legal notice. Op No.1 has produced a copy of sanction plan, copy of sale deeds to prove that they have allotted and sold sites to other members. Heard the counsel for both parties and perused the records.<br /> <br /> On the above contentions, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that Ops have caused deficiency in their service in not paying the balance advance amount paid and interest on the total advance amount paid by them.<br /> 2. To what order the complainants are entitled to?<br /> <br /> Point No.1: Answered in Part directing Op No.1 to pay interest as <br /> detailed in the order.<br /> Point No.2 : See the order.<br /> <br /> Answer on point No.1:<br /> <br /> As could be seen from the narration made above, there is no dispute with regard to the fact that the complainant’s had applied for allotment of a site and Ops had agreed to allot, cost of site was fixed at Rs.6.00 lakhs, out of which Rs.1,80,000/- towards 30% of the sital value was paid by the complainants as advance and they were required to pay the balance amount within 15 days from the date of approval of the plan. But the complainants have contended that the first Op had promised them to arrange loan in one of the bank’s for payment of balance consideration of Rs.4,20,000/- but the first Op did not do so and have further contended that loan application they had given to Axis Bank for sanction of loan came to be rejected. The complainants contended as if Op No.1 had failed to get them loan sanctioned, as the result they were not able to pay the balance sital value. The Ops have very vehemently denied having promised the complainants to arrange loan in one of the bank’s towards payment of balance sale consideration of the site. Therefore, in view of such denial by the opponents burden is on the complainants to prove that the Ops had promised to arrange loan for them for payment of balance sital value. But the complainants have not proved the same by either acceptable oral evidence or by producing any documents in this regard. As such, the claim of the complainants that Ops have failed to get them loan from one of the banks can not be believed.<br /> <br /> The complainants themselves have produced a copy of the letter issued by Axis Bank wherein they have stated that the request of the complainants to sanction loan has been declined in these complainants not meeting the general banking guidelines. Therefore, it is evident that the complainants themselves were not able to meet the requirements of the Axis Bank for sanctioning loan and thereby loan was not sanctioned and the complainants did not pay the balance sale consideration. The Opponents in their version and also in their affidavit evidence have stated that they got the layout plan approved on 28/03/2009. Thereafter, they informed the complainants calling upon them to pay the balance amount and get the site registered but the complainants pleaded for time explaining their inability to mobilize the balance amount and despite extending time to them for payment of the balance amount, the complainants did not pay it. This specific contention of the Ops is neither denied by the complainants nor controverted. Therefore, it goes unsaying that the complainant’s failed to mobilize balance sale consideration to pay to the Ops and to get the site registered in their name. Hence, we do not find any lapse or deficiency in the service of the Ops in not executing sale deed in favour of the complainants. The Ops have also produced copies of some sale deeds to prove their bonafides by showing that they have allotted sites and executed title deeds to the members who have paid entire money.<br /> <br /> Ops considering the inability of the complainants to get the contract completed repaid Rs.1,75,000/- to the complainants on their request by deducting Rs.5,000/- towards processing charges which in our view cannot be held as illegal, because on the request of the complainants they have not only processed their claim but also acted upon issued allotment letter and offered communications and therefore that needs some expenditure. Therefore, deduction can be held as reasonable. But the fact that Ops had made use of Rs.1,80,000/- deposited by the complainants for their advantage and they have gained some profit out of it in formation of layout and selling sites to other members. That is not denied and that cannot be denied also. Therefore, having regard to this fact of advantage gained by the opponents and considering the financial inability of the complainants, we find that in the given case, Ops are to be directed to pay reasonable rate of interest on the payment made by the complainants from the date of payment till it is re-paid which in our view would meet the ends of justice. Accordingly, we answer point No.1 and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is allowed in part. Op No.1 is directed to pay interest @ 10% p.a on Rs.1,75,000/- from 18/12/2007 on which date they received the amount up to the date of repayments. Op No.1 shall pay interest as stated above within 45 days from the date of this order.<br /> <br /> Parties to bear their own cost.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 5th June 2010.<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />