Date of Filing: 14.05.2008<br /> Date of Order:06.11.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 6TH DAY OF NOVEMBER 2008<br /> PRESENT<br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 1132 OF 2008<br /> <br /> Sangappa Dabashetty,<br /> S/o Mahalingappa,<br /> No.12, S.S. Complex, Nagappa Street,<br /> Near Sheshadreipuram College,<br /> Bangalore-562 020. Complainant<br /> <br /> V/S<br /> B.K. Chandrasekhar,<br /> Chairman, <br /> Karnataka Commercial Taxes Services (Officers)<br /> Association (Regd) (Commercial Taxers Layout Colony Committee, Fund), R/o: H.No. 01-554, II Cross,<br /> II Block, III Main, R.T. Nagar,<br /> Bangalore-560 032. Opposite Party<br /> <br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 seeking direction to the opposite party to allot a site measuring 50’ X 80’ and execute a sale deed in favour of the complainant, alternatively direct the opposite party to pay Rs.15,00,000/- with interest and for grant of damages of Rs. 2,00,000/-.<br /> The brief facts of the case are that, in the year 1993 the opposite party working as a president of the Karnataka Commercial Taxes Services (Officers) Association (R), Bangalore. The complainant with an intention to get a site in Bangalore has paid Rs.25,000/- through cheque dated 18/12/1993. Application Form was submitted on 17/03/1994. Opposite party had given acceptance letter dated 25/03/1994. The complainant had deposited the entire site amount with the opposite party on different dates as follows:-<br /> Sl. No. Date of Deposit Amount<br /> 01 18/12/1993 25,000-00<br /> 02 12/11/1994 32,500-00<br /> 03 12/11/1994 32,500-00<br /> 04 01/03/1995 32,500-00<br /> 05 10/12/1995 97,500-00<br /> 06 10/01/1996 17,000-00<br /> TOTAL 2,37,000-00<br /> <br /> The complainant was member of the Association and in the year 1993 Sri. B.K. Chandrasekhar was President of the Karnataka Commercial Taxes Services (Officers) Association (R), Bangalore. It is submitted that due to non-compliance to allot the site complainant asked for return of the amount. After repeated requests for repayment opposite party has issued cheque dated 25/06/1999 for Rs.1,00,000/- towards part payment. The cheque was presented for collection and same was dishonoured as funds insufficient. The opposite party had issued another cheque for Rs.50,000/- on 23/10/1999 and one more cheque for Rs.1,37,000/- dated 30/10/1999 issued by the opposite party. Both the cheques were presented for collection and the same were dishonoured with an endorsement as funds insufficient. Opposite party cheated the complainant by not honouring the cheques and also not allotting the site. In this connection criminal case is pending before the III Additional JMFC, Gulbarga. It is the case of the complainant that there is no bar to file this complaint before this Forum even though criminal case is going on U/Section 138 of the N.I. Act for punishment. There is lot of mental agony to the complainant. Therefore, the complainant submitted that direction be issued to opposite party to allot the site measuring 50’ X 80’, alternatively opposite party may be directed to pay Rs.15,00,000.-. <br /> 2. Notice was issued to opposite party. Opposite party put in his appearance through Advocate and filed defense version stating that the complainant and opposite party were colleagues and opposite party was President of the Association, but at present opposite party is no more the president and he has resigned from the post. Payment made by the complainant was not to the personal account of the opposite party but to the Association. It is true that the members of the Association called upon to file the application for allotment of site. The opposite party submitted that issuance of cheques and returns thereof are all subject matter of the case which is pending before III Additional JMFC, Gulbarga. The said case is filed U/Section 138 of the N.I. Act. Opposite party cannot be prosecuted on the same subject matter twice before two different courts. The amount of compensation claimed by the complainant is exorbitant and same is imaginary. Therefore, the opposite party has requested to dismiss the complaint. <br /> 3. Respective parties have filed affidavit evidence. Arguments are heard.<br /> 4. The point for consideration is:-<br /> <br /> “Whether there was any deficiency in service on the part of the opposite party?”<br /> <br /> REASONS<br /> <br /> 5. I have gone through the complaint, defense version and documents produced by the parties. The complainant has produced copy of Application Form submitted to the Commercial Taxes Layout. As per this Application Form the complainant has applied for allotment of site measuring 50’ X 80’. He has given declaration that he is interested in possessing of site in Commercial Taxes Colony in Bangalore developed by the Commercial Taxes Colony Committee of the KCTS (O) Association and he is agreeable to pay the value of the site in six quarterly installments as per the schedule. The complainant has produced a receipt for Rs.25,000/- dated 02/12/1993. This amount is towards booking of the site. This amount was paid through cheque dated 18/12/1993. The complainant has produced a letter dated 25/03/1994 given by B.K. Chandrasekhar, Chairman of Commercial Taxes Colony Fund. In this letter it is stated that the complainant has paid Rs.25,000/- and the amount had been credited to Commercial Taxes Colony Fund. It is the case of the complainant that he has paid in all Rs.2,37,000/- on different dates through cheques. The complainant has given detailed cheque numbers and the date of issue of cheques and the amount in Para-6 of his complaint. It is the case of the complainant that due to non allotment of the site by the opposite party the complainant asked the opposite party to return the amount paid by him and after repeated requests for repayment opposite party had issued cheque for Rs.1,00,000/- of Syndicate Bank, Sadashivanagar Branch, Bangalore towards part payment and the said cheque was presented for encashment by the complainant and the same was dishonoured on account of funds insufficient. The complainant has produced the Xerox copy of the said cheque and the Syndicate Bank return memo. It is further case of the complainant that the opposite party had again given two cheques one for Rs.50,000/- and another cheque for Rs.1,37,000/- to the complainant. The copy of the cheque dated 27/10/1999 for Rs.50,000/- is produced. Another cheque for Rs.1,37,000/- dated 30/10/1999 issued by the opposite party was in favour of the complainant, copy of the same is also produced. The Bank return memo for funds insufficient also produced. The complainant had issued legal notice to the opposite party intimating that cheques have been dishonoured and requested to pay the amount, failing which action will be taken under N.I Act and Indian Penal Code before the competent court of law. The copy of notice also produced. As regards the payment made by the complainant there is no dispute. The opposite party has contended in the defense version that payment made by the complainant was not to the personal account of the opposite party but to the Association of the Commercial Taxes. Opposite party also admitted that members of the Association called upon to file application for allotment of site. It is also admitted case of the parties that complainant and opposite party were colleagues working in the same department and the opposite party was President of Association was also admitted. It is also admitted fact that the present opposite party had issued three cheques to the complainant and all the three cheques were bounced and for that the complainant had filed a complaint before the III Additional JMFC at Gulbarga in C.C No.670/2004. The said complaint was filed against the present opposite party for the offence punishable U/Sec.138 of the N.I Act. The facts reveal that complainant has paid Rs.2,37,000/- on various dates under different cheques. The complainant demanded for return of the amount for not allotting the site. Therefore, on the request and demand made by the complainant for return of the amount paid by him the present opposite party had issued three cheques from his personal account of Syndicate Bank, Sadashivanagar Branch, Bangalore and unfortunately all the three cheques were bounced due to insufficient funds. Therefore, the opposite party is facing a criminal prosecution U/Sec.138 of the N.I. Act before the JMFC, Gulbarga. Pendency of private complaint U/Sec.138 of the N.I Act is no bar to deal with the present complaint under the Consumer Protection Act, 1986. The jurisdiction of both the Forums are different. Law will take its own course. The offence U/Sec.138 of N.I Act is punitive in nature whereas a complaint before this Forum is civil in nature and order could be passed for return of the amount and compensation for deficiency in service and for not allotting the site as per the commitment. The argument advanced by the learned counsel for the opposite party is that on account of pendency of criminal case before the JMFC, Gulbarga the present complaint is not maintainable cannot be accepted. The complaint before the District Forum under the Consumer Protection Act, 1986 is not a prosecution. Opposite party submitted that he cannot be prosecuted on the same subject matter twice before two different courts is not applicable to the present case. As already stated above this is not a prosecution against the opposite party. In view of the fact that opposite party had issued three cheques to the complainant for total amount of Rs.2,37,000/-, the facts remain that opposite party had admitted the receipt of Rs.2,37,000/- from the complainant. Since the opposite party had issued three cheques through his private account of Syndicate Bank, Sadashivanagar Branch, Bangalore, the liability is on the opposite party to see that amount is paid to the complainant. Unfortunately the cheques given by the opposite party to the complainant have been bounced and therefore, complainant was not able to get the money. Under these circumstances, the complainant was forced to file present complaint before this Forum seeking the relief from the hands of this Forum. Consumer Protection Act is a social and benevolent legislation intended to protect better interest of the consumers. The complainant had opted to receive back the amount paid by him. Therefore, the question of allotment of site measuring 50’ X 80’ does not arise. The complainant is entitled for refund of the amount paid by him with interest. I feel on the facts and circumstances of the case, the ends of justice will be met in ordering the opposite party to pay Rs.2,37,000/- with interest. The Hon’ble National Commission and Hon’ble State Commission are awarding interest at 18% p.a in several cases. I feel in this case also award of interest at 18% p.a could be just, fair and reasonable. Taking into consideration of all the facts and circumstances of the case and the documents, I proceed to pass the following:-<br /> ORDER<br /> 6. The complaint is allowed. The opposite party is directed to refund Rs.2,37,000/- to the complainant along with interest at 18% p.a from the date of last payment made by the complainant i.e., from 10/01/1996 till payment/realisation. The opposite party is directed to comply the order within 60 days from the date of this order. <br /> 7. The complainant is also entitled to Rs. 2,000/- towards costs of the present proceedings from the opposite party.<br /> 8. Send the copy of this Order to both the parties free of costs immediately. <br /> 9. Pronounced in the Open Forum on this 6TH DAY OF NOVEMBER-2008. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> Rhr<br />