BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE:30th November 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.:235/2015
Complaint No.:236/2015
Complainant/s: Prakash S/o.Mariyappa Malekoppa, Age: 50 years, Occ: Service, R/o. C/o. LIC Division Office, Dharwad.
……..in CC 235/2015
Shripad S/o.Vasudev Annigeri, Age: 36 years, Occ: Service, R/o. Samruddhi Building, Plot No.21, 1st Cross, M R Nagar, Navalgund Road, Dharwad.
……..in CC 236/2015
(By Sri.S.M.Patil, Adv.)
v/s
Respondent/s: Dilip M.Mohite, Age: 40 years, Occ: Managing Director, Sunshine Constructions and Developers, Sangam Circle, Dharwad.
(By Sri.B.C.Guddadmath, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. Since the complainants have filed the complaints against the same respondent claiming the same reliefs, for the purpose of passing common order the above 2 cases have been clubbed together and disposed of in a common order.
2. The complainants have filed these complaints claiming for a direction to the respondent to refund Rs.4.50 lakhs along with 24% interest from the date of deposit till realization, to pay Rs.7500/- per month as damages as agreed in the commitment letter, to pay Rs.10000/- towards cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
3. The case of the complainants are that, on the rosy advertisement and appeasement by the respondent the complainants approached the respondent and paid Rs.5 lakhs each as the respondent promised to construct and handover independent house with reasonable constructions assuring compound wall, gates, car parking, column structure with standard amenities inclusive of registration charges, 24 hours water supply, solar water heater and to issue completion certificate and to deliver the possession by June 2013. The amount of Rs.5 lakhs was paid under 2 separate receipts each. Inspite of receipt of the advance amount respondent did not progressed any construction works as undertaken. Hence, the complainants wrote repeated letters. Thereafter respondent issued commitment letter on 18.06.2014 committing to execute sale deed before 31.08.2014 & if it is not executed would pay Rs.8 lakhs as accumulated loss by 07.09.2014 & agreed to pay Rs.7500/- per month towards loss till delivery of the possession, but not delivered. Thereafter the respondent issued cheque for Rs.8 lakhs towards refund and was not realized for insufficient funds. Again respondent issue another fresh cheque for Rs.8 lakhs, same was also not realized for insufficient funds. Since the complainants have totally lost hopes on respondent insisted the respondent to return the amount. Thereafter the respondent in the month of January 2015 paid Rs.3.50 lakhs cash and gave cheque for Rs.4.50 lakhs on 15.03.2015 for the balance. Thoee said cheques were also dishonoured. Thereafter the respondent never care to refund the amount, it amounts to deficiency in service. Hence, the complainants filed the instant complaints praying for the relief as sought.
4. In response to the notice issued from this Forum the respondent appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondent taken contention that complainants are false, frivolous, vexatious and prays for dismissal of the complaints on those grounds. While the respondent admits approach of the complainants and also the fact the respondent is carrying out construction work under the name “Sun shine construction and developer”. Further the respondent admits the initial payment of Rs.5 lakhs and averred, since the complainants failed to pay the balance amount as agreed the respondent could not undertaken the construction works as agreed, as such there is no deficiency in service on the part of respondent. While the respondent also admits issuance of the receipts for payment and denied the commitment letter contents alleging that at the pressure of the complainants only he ought to have execute commitment letter and issued. Further the respondent averred due to unavoidable circumstances and unable to secure the land for construction the respondent could not able to undertake construction work. It was also agreed in the sale agreement as such he issued commitment letter and as per commitment letter the respondent issued cheque for Rs.8 lakhs, as it was dishonoured due to financial difficulties. Towards the payment of the dishonoured cheque amount the respondent paid Rs.3.50 lakhs cash and towards the balance the complainant paid another Rs.80000/- cash in the month of April 2015 & Rs.1,00,000/- in the month of May 2015 by cash in the presence of Kumbar and in total the respondent had repaid Rs.5.30 lakhs. Inspite of it the complainants by misutilizing the dishonoured cheque filed the present complaints concealing the true facts and material facts. Hence, prays for dismissal of the complaint.
5. 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 sworn to evidence affidavit. Complainants relied on documents. In CC 236/15 the complainant did not produced construction agreement. Heard. Perused the records.
Finding on points is as under.
- Affirmatively
- Accordingly
- As per order
Reasons
Points 1 and 2
6. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the complainants have approached the respondent and have paid Rs.5 lakhs as an advance amount towards the construction of houses as agreed between the parties. Further it is also not disputed on default to construction and deliver the house towards the refund of the amount the respondent had executed the commitment letter in favour of the complainants.
7. Now the question to be determined is, whether the complainants are entitled for refund of Rs.4.50 lakhs as per the dishonoured cheques issued by the respondent along with Rs.7500/- per month towards the damages as per commitment letter and non payment of the amount amounts to a deficiency in service, if so, for what relief the complainant is entitled.
8. As per the pleadings of the complainants and also as per the commitment letters Ex. C-15 and Ex. C- 8 respectively in each case respondent had admitted the quantum of the amount refundable by him. While it is the case of the complainant that, as per the commitment letter the respondent had issued cheques but same were bounced. Again he issued fresh cheques, same were also dishonoured for insufficient funds. After persistent insists made to the respondent, respondent had paid Rs.3.50 lakhs cash and for the balance amount of Rs.4.50 lakhs he issued cheques, same cheques were also dishonoured for insufficient funds, thereby they approached this Forum and filed the complaints for refund of the amount. The cheques in question and dishonor memorandum are Ex. C-1, Ex. C-2 in CC 235/15 and Ex. C- 3 and Ex. C-4 in CC 236/15.
9. While it is the case of the respondent that, he has paid the entire amount and kept no due of any amount. While in the case of assertion and denial it is the burden to prove by the parties who asserts and denies. As per the own admission of the complainants, after dishonor of the cheques for Rs.8 lakhs, the respondent paid Rs.3.50 lakhs cash for the remaining amount cheque was issued for Rs.4.50 lakhs, same was also dishonoured. Even for the admitted receipt of Rs.3.50 lakhs the complainant did not produced any document, once it is admitted it cannot be disbelieved. Whereas as per the assertion by the respondent towards the dishonoured cheque issued for balance amount of Rs.4.50 lakhs he has paid Rs.80000/- in the month of April 2015 and thereafter he has paid Rs.1 lakh in the month of May 2015 by way of cash, but not produced any document. While complainants have denied these payment. Under those circumstances though it is paid by the respondent, when the complainants denied specifically the assertion of the respondent is not acceptable in the absence of documentary evidence before the forum.
10. The claim of the complainants are that, for refund of Rs.4.50 lakhs with interest along with Rs.7500/- per month as per commitment letter issued by the respondent. When it is the definite case of the complainants and they are entitled for the damages as per commitment letter of Rs.7500/- per month under what circumstances and for what purpose the respondent in total had issued cheque for Rs.8 lakhs towards the refund amount. So also when the cheque for Rs.8 lakhs issued was dishonoured, why the complainants received only Rs.3.50 lakhs cash and towards the balance received cheque for Rs.4.50 lakhs. The very case of the complainants that they had paid only Rs.5 lakhs towards the part payment. When the advance amount is only Rs.5 lakhs and as the respondent had issued cheque for Rs.8 lakhs towards the refund it is understood that, the parties have arrived settlement and then only the cheque have been issued towards the final commitment and settlement. Soon after the cheque has been issued the terms and conditions of the construction agreement and commitment letter becomes terminated and has no value and the complainants cannot go beyond the payment cheque in question and claim the relief as per either commitment letter of construction agreement relied in the complaints.
11. That apart coming to legality and validity of the commitment letter and construction agreement is not executed properly in accordance with the law and have not been duly stamped as per Stamp Act. Hence, those documents cannot be legally enforceable.
12. Apart from it even look into Ex.C8 at the bottom of the commitment letter it is specifically mentioned “today I am paying Rs.3.50 lakhs to each of them remaining Rs.4.50 lakhs each will be paid on 15.03.2015 vide cheques in their respective names”. In both the cases cheque in question is of dt.15.03.2015 as per the commitment letter. So it is understood the said amount is inclusive of all the amount payable by the respondent to complainant in due as such the complainants are not entitled for additional Rs.7500/- per month as prayed and claimed by them in the complaints in accordance with the commitment letter towards the damages. Hence, for the said amount they are not entitled except Rs.4.50 lakhs.
13. Without going much further discussion we have arrived and hold, the complainants are entitled for Rs.4.50 lakhs with interest and non payment of the said amount under cheque by the respondent amounts to a deficiency in service. Hence, complainants have established their case of deficiency in service and entitled for the relief as prayed. Accordingly we inclined to hold issue.1 in affirmatively and issue.2 accordingly.
14. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaints are partly allowed. The respondent is directed to pay cheque amount of Rs.4,50,000/- with interest @9% P.A. from 15.03.2015 to each complainants along with compensation of Rs.2,000/- and Rs.1,000/- towards cost of the proceedings in each case within 30 days from the date of receipt of copy of this order.
Original order be kept in CC 235/15 & its copy in CC 236/15.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 30th day of November 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
