BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 22nd December 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 212/2015
Complainant/s: Gangadhar s/o. Channappa Kittur, Age:56 years, Occ: Business, R/o. Kittur Building, Near Kittel College, P.B.Road, Dharwad.
(By Sri.R.G.Kotur, Adv.)
v/s
Respondent/s: 1) Guru Developers, 1st Floor, Kanoj Building, Opp: Laxmi Talkies, P.B.Road, Dharwad 580001.
(Exparte)
2) Aanand M.Jadhav, Age: Major, Occ: Business, R/o.M.R.Jadhav, Gangaram Nilay, Salpekar Oni, Mrityunjaynagar, 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 the registered sale deed of the flat by receiving the balance amount of Rs.6 lakhs, in alternative to direct to refund the amount of Rs.19 lakhs paid along with interest @15% from 01.05.2013 till realization, to pay Rs.1 lakh as penalty and to pay 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, the complainant on the advertisement published by the respondent approached the respondent and has entered into an agreement of sale and purchase of flat bearing No.24 measuring 2800 sq.ft. situated in R.S.52/B/1A/C1/1 measuring 2 acres 20 guntas at Doddanayakanakoppa village of Dharwad district with the boundaries mentioned in the complaint for a total consideration of Rs.25 lakhs. Out of Rs.25 lakhs, Rs.19 lakhs was paid to the respondent through cheque and was agreed to pay the balance of Rs.6 lakhs at the time of delivering possession and registering the same in the name of complainant. The said agreement was entered on 30.04.2013. Thereafter the complainant requested the respondent to execute the same and made repeated approaches along with his brother and other well wishers. Despite of it OP did not come forward and execute the sale deed as agreed instead went on protracting on false assurance. On 25.05.2015 the complainant got issued legal notice and the same was served on respondent.2. Inspite of service of legal notice the respondent did not complied nor returned the amount which amounts to deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondent-1 remained absent. While the respondent.2 appeared on taking notice by substitute service by way of paper publication only and respondent 2 contested the matter by filing the written version in detail denying and disputing the complaint averments. Further the respondent denied the complaint in toto on the grounds contending very complaint is false, frivolous, vexatious and the same is not tenable either on law or on facts and prays for dismissal of the complaint. Further the respondent denied all the complaint averments including advertisement, approach of complainant, execution of the agreement, proprietorship of respondent 1 by the respondent.2 & receipt of the consideration as contended in the complaint and also denied cause of action and prays for dismissal of the complaint and puts the complainant to strict proof of the all the complaint averments. Apart from denying the cause of action the respondent also disputes the complainant is a consumer, complaint as brought is a consumer complaint, jurisdiction of the Forum to adjudicate the same and in all prays for dismissal of the complaint with heavy cost.
4. On the said pleadings the following points have arisen for consideration:
- Whether this forum has got pecuniary jurisdiction to adjudicate the complaint ?
- 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. complainant relied on documents. Both have submits argument and relied on citations. The respondent also filed notes of argument. Heard. Perused the records.
Finding on points is as under.
- Negatively
- Not sustainable
- Not sustainable
- As per order
Reasons
Points 1 to 3
5. Since the facts have been revealed in detail which requires no repetition.
6. On traversed over the pleadings and evidence of the respondent, the respondent denied entire complaint in toto. Under those circumstances the Forum has to determine whether the complaint as brought is having pecuniary jurisdiction to adjudicate the present complaint, whether the complaint is a consumer complaint and this Forum has jurisdiction to adjudicate the same, whether the respondent had entered into agreement with the complainant, whether the respondent has received the consideration as contended by the complainant and non executing the sale deed as agreed by the respondent amounts to a deficiency in service and unfair trade practice, if so, for what relief the complainant is entitled.
7. As observation made among issues framed this Forum wish to adjudicate the issue whether the complaint as brought is having pecuniary jurisdiction of this forum to adjudicate the present complaint as preliminary and to proceed to determine the same.
8. The complainant in support of his contention relied on sale agreement executed by the respondent on 30.04.2013. The perusal of the said document the said agreement is executed on stamp paper of only Rs.100/-. As per the Stamp Act the document is suffering from deficit stamp fee & cannot be admissible in evidence except payment of proper stamp fee on the said document. Hence, the complainant ought to have pay proper stamp duty on the said document. Unless the payment of the deficit stamp the order will not comes to force till then, unless an endorsement to that effect is produced by the complainant.
9. On perusal of the said agreement Ex.C-8the respondent had executed the same in favour of the complainant. In the said agreement it is agreed to sell the property in question for Rs.25 lakhs & respondent had acknowledged Rs.19 lakhs out of it and agreed to receive the balance at the time of executing the registered sale deed in favour of complainant. The respondent except denying the said document and receipt of the consideration as per the said document in toto in rebuttal to this the respondent did not produced any supporting document to strengthen his contention. While the complainant in support of payments made in consideration of the said agreement produced and relied on receipts Ex.C-2(1-5) issued by Guru Developers signed by authorized signatory. The respondent even then disputes those receipts and contended that those receipts are not belongs to the respondent. Except denial not produced any document in rebuttal to the contention of the complainant. Further in support of his contention for payment of the consideration through cheque the complainant produced the bank account statement Ex-C9 of the respondent maintained at ICICI Bank. On perusal of the said statement bearing account no.017005002993 belongs to the respondent.1, on 3 occasions i.e. on 30.11.2011, 25.09.2012 & 26.09.2012 a sum of Rs.6.50 lakhs, Rs.3 lakhs and Rs.10,00,000/- has been debited to the account of the respondent by the complainant. By this there is no doubt to disbelieve the respondent not received the consideration as per the agreement and also as contended by the complainant.
10. On perusal of Ex.C9 the bank account extract pertaining to the respondent company in total the respondent had received Rs.19,50,000/- from the complainant. The complainant in his prayer has sought for issue direction to the respondent to execute the registered sale deed in favour of the complainant and to handover the actual and physical possession of plot no.24 or 14 or 15 by receiving the balance amount of Rs.6 lakhs. In alternative it is also sought in the event of unable to execute registered sale deed in favour of the complainant and to hand over the actual possession, direct the respondent to pay Rs.19 lakhs to the complainant together with interest @15% per month on the said amount from 01.05.2013 till realization. Further the complainant sought for Rs.1 lakh penalty amount for causing mental agony, inconvenience, harassment etc., & also for cost of the proceedings and to grant such other reliefs.
11. On going through the pleadings of the respondent it is the definite case of the respondent that apart from other denials of the complaint averments in toto as discussed supra the grievance of the respondent is that he is not the owner of the plot and the same has not been transferred to him for some other reasons and hence he is not in a position to execute the registered sale deed in favour of the complainant as prayed. When this is the case of the respondent certainly the complainant is entitled for alternative relief sought by him. If it is the case of the complainant and when he is entitled for alternative second relief along with other consequential relief - the complainant is entitled for refund of Rs.9,50,000/- paid by him including Rs.7,52,875/- towards interest as prayed by him @15% per month and additional consequential relief of Rs.1,00,000/- as compensation, cost of the proceedings and such other reliefs. (cost includes expenses spent in prosecuting the case including advocate fee). Complainant spent Rs.2,800/- towards paper publication & advocate fee & other compensation that will be and it depends upon this Forum’s final decision. So, taking into consideration of refund amount, interest, compensation as claimed it exceeds more than Rs.28,85,750/- at its present position excluding cost of the proceedings. If cost also includes it exceeds still more than Rs.28,85,750/-. The pecuniary jurisdiction of this Forum is restricted only to Rs.20,00,000/- exceeding to pecuniary jurisdiction limit this Forum has no jurisdiction to adjudicate such complaints. The complainant has not restricted his claim to an extent of pecuniary jurisdiction of this Forum. Under those circumstances this Forum cannot adjudicate the present complaint as the present complaint is out of pecuniary jurisdiction of this Forum. Hence, we inclined to answer this preliminary issue in negatively, as such the present complaint as brought is barred by the pecuniary jurisdiction and this Forum has no jurisdiction to adjudicate the same. Since the present complaint could not be adjudicated there is no need of proceeding further and to decide the other issues and the complaint on merits as not sustainable
12. In view of the above discussions we have arrived and proceed to held issue.1 negatively and 2 & 3 are not sustainable.
13. Point.4: In view of the finding on points 1 to 3 proceeded to pass the following
O R D E R
Complaint is dismissed. No order as to costs. However this order shall not come in the way of the complainant seeking reimbursement of the amount from the respondent under any other provisions of law or contract between the parties or before any other court/tribunal/forums. In such an event period taken for prosecution of this case does not counts.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 22nd day of December 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
