BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 31st March 2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 276/2015
Complainant/s: Ms.Sheela Naduvinamani,
Age: 36 years, Occ: Bank Employee, R/o.Pawan Kunj, 1st Cross, Sadanakeri, Dharwad – 580008.
(By Sri.B.S.Hoskeri, Adv.)
v/s
Respondent/s: 1) Mr. Anand Madhavrao Jadhav, The Director, M/s.Guruvina Infra Pvt. Ltd., R/o.Talpekar Oni, Gudi Hattira, Haveripeth Main Road, Dharwad – 580006.
2) Smt. Kasturibai Madhavrao Jadhav, The Director, M/s.Guruvina Infra Pvt. Ltd., R/o.Talpekar Oni, Gudi Hattira, Haveripeth Main Road, Dharwad – 580006.
(By Sri.P.B.Patil, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to execute sale deed with respect to the agreement scheduled property, in alternative to refund Rs.7 lakhs with interest @18% P.A from the date of receipt till realization, to pay Rs.8 lakhs as compensation for the loss, to order for cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant was in need of plot. Hence, the respondents being the developer she approached & entered into agreement to purchase the site measuring 1500 sq.ft., in accordance with the agreement the complainant had paid Rs.7 lakhs on 3 installments as scheduled & it is agreed to pay remaining amount of the cost at the time of execution of sale deed in favour of complainant by the respondent. Despite receipt of the amount as per the schedule the respondent did not develop the site & delivered & execute the sale deed in favour of complainant despite several approaches & repeated letters & correspondence. Finally the complainant was forced to issue legal notice in the month of March 2015. Despite service of notice the respondent except assurance neither delivered the possession nor refund the amount. At the instance of respondents false assurance and unfair trade practice the complainant subjected to mental agony. Further the complainant pleaded, on false assurance the complainant came on insisting the respondent either to deliver the possession or to refund the amount. Non performance of the contract & non refund of the amount continues the cause of action and the complaint is in time and this Forum has got jurisdiction and prays for allow the complaint.
3. In response to the notice issued from this Forum both the respondents appeared through a counsel and filed the written version in detail denying and disputing all the complaint averments in toto and prays for dismissal of the complaint alleging the very complaint is false, frivolous, vexatious. Further the respondents taken contention & disputes the consumer and service provider relationship between the parties, complaint being a consumer complaint, lack of jurisdiction of the Forum to adjudicate the complaint, liability of the respondent, payment of the advance amount and way of amount raised by the complainant to pay cost of the site, execution of the agreement on insufficient stamp paper and such other facts and on question of law, prays for dismissal of the complaint by insisting the complainant to establish complaint averments. Further the respondent also disputes and denied the deficiency in service, unfair trade practice by the respondent and cause of action and constitutionality of the respondents establishment Guru Infrastructure and M/s.Guruvina Infra Pvt. Ltd., & also disputes the relation between the 2 firms and prays for dismissal of the complaint with cost.
4. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits evidence affidavit. The complainant apart from examining herself adduced the evidence of one more witness PW-2 & PW-2 has been cross examined by the respondent. The respondent examined himself as RW-1, closed the evidence. Complainant relied on documents. Respondent apart from argument filed notes of argument. Heard. Perused the records.
Finding on points is as under.
- Affirmatively
- Accordingly
- As per order
R E A S O N S
P O I N T S 1 & 2
5. On going through the pleadings, evidence, documents of both the parties it is evident that the complainant had entered into contract of sale and purchase of site, to be developed by the respondent and in view of the agreement entered between the parties the complainant has paid the amount as agreed and the same was received by the respondent. Further it reveals inspite of receipt of the advance amount as agreed in the agreement the respondent did not developed and delivered the site. Under those circumstances there is cause of action for the present complaint & the present complaint as brought is maintainable.
6. The respondent disputes constitutionality of the establishment of the respondent viz., Guru Infrastructure and M/s.Guruvina Infra Projects Pvt. Ltd. This contention of the respondent is baseless & the same is corroborated by perusal of the project report Ex.C1. Wherein it, at its inception the respondents admit we were previously known as Guru Developers. This fact is further corroborated by looking into the advance receipts Ex.C3, C5, C6 & Ex.C8 statement of bank account hold by the complainant. Perusal of Ex.C8 it is evident that all the payments made by the complainant as per Ex.C3, C5 & C6 have been debited from the account of the complainant in favour of respondent firm as detailed in Ex.C8. Under those circumstances it is baseless to contend by the respondent that the respondent is in no way concerned with the establishment Guru Developers and M/s.Guruvina Infra Pvt. Ltd.
7. The respondents further disputes sale agreement Ex.C4 and contend it is executed on insufficient stamp paper. The contention of the respondent may be right, but for mere for the said reason the respondent cannot escape from the liability of delivering possession of the site by executing sale deed or otherwise refund of the amount received by them under Ex.C3, 5, & 6. By this it is clearly evident that the respondent being well aware of all the transaction, assurance and receipt of the advance amount taking all this contradictional & inconsistent contentions, the respondent with sole intention to snatch the hard earned money of the made all these preventable allegations. This act of respondent is nothing but deficiency in service coupled with unfair trade practice with sole intention of money laundering.
8. Summing up the evidence coupled with the documents relied by the complainant the complainant had established her case of deficiency in service amounting to unfair trade practice and accordingly the complainant is entitled for the reliefs. Taking into consideration of contradictory inconsistent contentions taken by the complainant despite receipt of the money the respondent is not entitled for any leniency in the liability by the hands of this forum.
9. In view of the above discussions we have arrived, we proceed to held issue.1 and 2 in affirmatively and accordingly.
10. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is allowed in part. The respondent.1 and 2 jointly and severally directed to execute the registered sale deed & deliver the possession of the site by receiving the balance amount along with paying Rs.5,000/- towards compensation for mental agony and Rs.2,000/- towards cost of the proceedings within 30 days from the date of receipt of copy of this order. Failing to comply the same within stipulated period the respondents shall refund the amount received with interest 18% P.A. from the date of receipt of amount till the filing of present complaint and along with interest @9% P.A. from thereon till realization of the amount.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31st day of March 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
