Date of Filing : 29.02.2016
Date of Disposal : 24.06.2021
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 24th DAY OF JUNE-2021
PRESENT
Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER
Mrs M.DIVYASHREE : LADY MEMBER
APPEAL NO.469/2016
Vijaya Bank,
Domlur Branch,
No.208, 5th Cross,
I man Road, Domlur,
Bangalore-560 071.
Rep/by its Assistant
General Manager,
Sri.Pradeep Kumar. … Appellant
(By Sri/Smt. Manjunath Murtgudde, Advocate)
-Versus-
Dr.Bharath.H.S
Flat No.005,
Skylark Sapphire
West, Jagadishnagar,
Bangalore-560 075.
..Respondent
(Inperson)
O R D E R
Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER
This is an Appeal filed u/s 15 of Consumer Protection Act, 1986 by OP in CC-No.1086/2013 on the file of Bangalore Urban District Consumer Disputes Redressal Forum, Bangalore aggrieved by the order dated 05.01.2016. (Hereinafter referred to as District Commission).
2. Brief facts of the case of complainant/Respondent are that; the Bank has released full loan amount instead of releasing only 75% of the amount sanctioned. In this regard he suffered lot and sought for award of compensation of Rs.12,00,000/-, which was resisted by the OP/appellant herein before the Commission below and the Commission below was enquired into on the point of deficiency of service recording affirmative finding. Commission below on 05.01.2016 directed OP/appellant to refund the excess amount paid to Pavan Builders to the extent of Rs.2,81,280/- within 30 days from the date of receipt of the order and directed OP/appellant to pay interest @ 12% p.a on Rs.2,81,280/- from the date of payment made to Pavan Builders till realization of the due amount. Further directed to pay Rs.5,000/- towards litigation expenses. Now impugned by such order, OP/appellant preferred this appeal on the grounds that Commission below has failed to appreciate the facts in right perception, resulting thereby recording of wrong finding, contending that, the amount was released in favour of the builder as requested by the complainant. Further, contending non completion of work on time by the developer cannot be attributed or termed as deficiency of service on the part of OP/bank. The Commission below has failed to note that the complainant ought to have impleaded Pavan Builders as party to the proceedings. It is therefore, impugned order dated 05.01.2016 is liable to be set aside.
3. The Commission heard learned counsel for the appellant and the respondent in-person to the appeal proceedings and we examined the impugned order dated 05.01.2016 along with appeal records. Now, we have to examine whether impugned order passed by Commission below in CC-No.1086/2013 could be maintained in this appeal for the reasons recorded?
4. At the very outset, Commission to make mention that OP/appellant is a Banker, complainant availed home loan of Rs.15,00,000/- from OP/bank towards purchase of flat from Project Pavan Tranquil Homes located in J.P.Nagar 5th Phase developed by Pavan Builders. The flat value was fixed for Rs.33,00,000/-. According to complainant as per brochure, the bank should have released only 75% of the amount and also insisted on sale deed registration before release of funds. It was the case of the complainant that he has already paid Rs.15,00,000/- towards purchase of flat worth Rs.33,00,000/-, as such bank could have released Rs.9,75,000/- to the said builder towards 75% of the loan amount. However, bank has released full loan amount availed by him, which according to him, misutilized by the builder. In this regard, he would contend that the OP/bank should have strict in financial matters, in particular, release of the fund proportionate to the construction of the project by his builder. He would submit that, the builder has misutilized the funds and halted the work for the past 16 months. The other partners of Pavan Builder Mr.Chakrapani Reddy mentions that, they did not receive funds to their financial account as Mr.Yogananda Reddy has created one more account and all the funds have gone into that account, that in fact this allegation being made in his original complaint itself. However, the Commission below, failed to appreciate the said fact to give a logical end to the complaint case raised by the complainant/respondent herein either directing complainant to implead such party as a party.
5. Learned counsel for appellant would submit that, Rs.15,00,000/- sanctioned to complainant and as per his request on 15.11.2011 Rs.8,00,000/- and on 22.12.2011 Rs.2,00,000/- was released. The OP-bank having come to know that sale deed was not executed by the Builders, it written a letter to the Builder, requesting to register the property in favour of respective owners and to complete the construction of the flat and to make arrangement to handover the said flats to the said owners. Further, OP-banker has also issued notice to Pavan Builders and to its Partners in this regard. However, Mr.Chakrapani Reddy replied stating that, Mr. Yogananda Reddy has cheated him and has not informed him about the development of the project and also has not given details of sale consideration amount received from prospective purchasers. Anyhow at that point of time, as submitted 95% of the building plan was completed and it is fit for occupation. Further, would submit there is no obligation on the part of banker to see that builder should complete the construction work of the said project, since those issues are between the complainant and the developer/builder has some force. It is found from the enquiry records that registration of the sale deed, so far has not been done. It is an undisputed fact that, Rs.15,00,000/- was sanctioned and the complainant did not dispute about release of Rs.9,75,000/-, however he disputes release of Rs.2,57,080/- in favour of his builders and this is the dispute. Admittedly Mr.Yogananda Reddy and G.C.Reddy are the partners of Pavan Builder and in view of release of Rs.2,57,080/- to the Builders’ S.B Account, which is in the name of Pavan Builders on 02.02.2012, in our view without impleading them as parties, attributing negligence on the part of appellant/OP/bank has to be held incorrect.
6. In the above such view of the matter, the findings as to attributing negligence on the part of banker, without including Pavan Builders to the complaint raised by the complainant has to be held contrary to facts and law, is liable to be set aside. In other words, could not be maintained in the appeal required to be remand to the Commission below for fresh enquiry. Accordingly appeal filed u/s 15 of the C.P Act, 1986 is hereby allowed. Consequently the impugned order dated 05.01.2016 passed in CC-No.1086/2013 by Bangalore Urban District Consumer Disputes Redressal Commission, Bangalore is hereby set aside and remanded back with a direction to issue direction to the complainant to implead Pavan Builders and its partners as parties to the complaint and dispose off the complaint affording opportunity to all the parties, as early as possible.
7. The parties are directed to bear their own costs.
8. Amount in deposit is directed to be transferred to the District Commission for needful.
9. Send a copy of this Order along with L.C.R to the District Commission.
10. Send copy of this order to both the parties.
Lady Member Judicial Member
*J*
