COMPLAINT FILED ON: 25.06.2009

DISPOSED ON: 31.01.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

31^ST JANUARY 2011

       PRESENT :-SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to refund advance amount of Rs.5 lakhs along with interest at the rate of the 18% p.a. from 26.11.2007 till the date of realization and to pass such other orders; on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

On 26.11.2007 complainant booked a flat bearing No.R-001, ground floor in the project HM Tambourine situated at Kanakapura Road, J P Nagar, 6^th phase, Bangalore floated by OP and paid a sum of Rs.5 lakhs as advance amount by way of cheque dated 26.11.2007 drawn on HDFC Bank and same was encashed by the OP. OP has promised the complainant to furnish the documents to obtain legal clearance to avail loan from the bank or in other financial institutions. However OP failed to furnish the same. Hence complainant could not get the clearance from valuer in view of the deviations from the sanction plan in construction of the building. Complainant brought the said fact to the notice of the OP. OP was not in a position give satisfactory reply. Hence complainant was forced to request OP to refund the advance amount paid by cancelling the booking.  OP also agreed for the same and promised to refund the advance amount paid within one month. Inspite of repeated requests made by the complainant OP failed to refund the same. Hence on 24.12.2008 complainant caused legal notice to OP calling upon OP to refund advance amount along with interest.  On 31.12.2008 OP instead of complying with the demand of refund amount with interest sent untenable reply.  OP is not in a position to confirm with regard to the deviation of the plan in construction of the said flat. Inspite of repeated request when OP failed to refund the advance amount Complainant felt deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint for necessary relief’s.

3.      On appearance OP filed its version mainly contending that there is no cause of action for the complaint. Complainant has filed this complaint by suppressing true and material facts.  OP admits that it has taken of the project by name HM Tambourine at Kanakapura Road, J P Nagar, 6^th Phase, Bangalore and also admits that complainant booked a flat bearing No. R-001 situated at ground flour in the said project and same was reserved in the name of the complainant. OP submits that complainant requested OP to carryout some alteration in the kitchen as per his email dated 07.12.2007. Accordingly OP at the cost of the complainant carried out the changes as desired by the complainant. On the same day complainant sent another email to OP requesting to execute the sale agreement and to register the said flat in his mothers name after carrying out the necessary changes as desired by the complainant in kitchen and wiring.  OP through an email dated 12.01.2008 informed the complainant that OP is ready to execute the register sale deed in respect of the said flat. Such being the facts to its shock and surprise on 24.11.2008 OP received legal notice from the counsel of the complainant to the effect that OP has failed to furnish the same and hence he could not get the clearance from the valuer in view of the deviations in sanctioned plan which is factually incorrect. The entire case made out by the complainant is of deficiency in service for failing to make available documents for legal clearance. This stand of complainant is a pure after thought. Complainant himself has produced the exchange of correspondences between parties by email commencing from November 2007 to December 2008. The title to the property/flat was never an issue. On the contrary email demonstrates that complainant was persistently inquiring about registration and modification of the flat. For the first time non furnishing of the documents for legal scrutiny is contended in the legal notice mischievous and vexaciously. The actually fact of the matter is the complainant is not able to arrange the balance sale consideration for purchase of the flat; to hide his inability complainant has chosen to make reckless allegations against OP. At the same time OP is put to heavy loss. The flat was booked in the name of the complainant at the time when the project was being completed and therefore he got the best price from OP. In view of the commitment i.e., booking of the flat OP has refused several other lucrative offers. That apart the flat was also being modified structurally to meet the needs of the complainant, on account of the same, OP has suffered financially in view of the modifications, flat would not be purchased by any other person. Any order passed by this Hon’ble Forum directing refund of Rs.5 lakhs will cause miscarriage of justice in addition OP is put to severe hardship. There are more than 180 flats constructed by OP. The other flats have got legal clearance from their respective valuers, Banks and financial institutions. The case made out is only for this complainant. The legal clearance was not given clearly establishes that the reasons assigned are only with an intention to hide his inability to complete the transaction and for making wrongful gain.  OP has furnished all the documents as sought by the complainant. There is no deficiency in service on the part of the OP.  As it has performed all its obligation in constructing the building, in hand over the required documents as sought by the complainant. Moreover OP has carried out all changes/alterations as desired by the complainant.  The legal notice issued by the complainant after lapse of one year from the date of email sent by OP on 10.01.2008 which clearly shows that complainant is not ready and willing to perform his part of the contract to complete the transaction. In present market condition there is no prospective purchaser to buy flat reserved in the name of the complainant.  In view of the delay caused by the complainant in cancellation of the flat OP is not liable to refund the amount to the complainant under any circumstances.  The complainant has made untenable allegations to cover up his latches and inability in getting the registered sale deed.  The complainant has approached this forum by twisting the facts with an intention of misleading the court. Conduct of the complainant has to be considered in serious manner. Among other grounds OP prayed for dismissal of the complaint.

4.      In order to substantiate the complaint averments complainant filed his affidavit evidence and produced email correspondences, copy of the cheque dated 26.11.2007 proposal form, sketch copy, copy of the legal notice, booking allotment letter, postal acknowledgements and receipts along with terms and conditions, reply notice dated 31.12.2008.  On behalf of OP H.J.Siwani, partner of the OP Company filed his affidavit evidence and produced document from SBI for sanction of loan other allottee. Complainant filed further affidavit evidences and again filed additional affidavit evidence. OP has filed memo stating it has requested BDA to issue revised/modified sanction plan. Hence OP has surrendered the old plan to BDA and prayed time to produce the same after issued by BDA.  OP submitted their written arguments.  Heard arguments from the both the sides. 

5.      From the above pleadings, the points now that arise for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved

                     the deficiency in service on the part of

                       the OP?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

6.      We have gone through the pleadings of the parties, both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs our findings on the above points are:

Point No.1:- In Affirmative

Point No.2:- Affirmative in part

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not in dispute that the complainant has booked a flat bearing No.R-001, Ground floor at the project floated by OP namely “HM Tambourine” situated at Kanakapura Road, J P Nagar, 6^th phase, Bangalore.  It is also not in dispute that complainant has paid Rs.5 lakhs to OP as advance sale consideration by way of cheque dated 26.11.2007 drawn on HDFC Bank Ltd. It is contended by the complainant that OP has promised to furnish the documents of the property to obtain legal clearance to avail bank loan.  Since OP has failed to furnish the same complainant was unable to get the clearance from the valuer in view of the deviations from the sanction plan in construction of the building.  The said fact was brought to the notice of the OP.  When OP failed to give satisfactory reply complainant requested OP to refund the advance amount paid by cancelling the same. Though OP has agreed to refund the advance amount inspite of repeated requests Op failed to refund the same and gave untenable reply to the legal notice.  Hence complainant approached this forum.

8.      As against the case of the complainant the defence of the OP is that at the instance of the complainant, OP has carried out some alterations in the kitchen and wiring at the cost of the complainant.  OP has informed the complainant on 10.01.2008 that OP is ready to execute the registered sale deed. But complainant after one year sent a legal notice demanding refund of advance amount along with interest which is an after thought. Complainant is not in a position to arrange the balance sale consideration for purchase of the flat; to hide his inability has chosen to make these allegations against OP.

9.      OP admits receipt of advance sale consideration of Rs.5 lakhs. OP has not denied the fact that it has promised to furnish the documents of the property to obtain legal clearance to avail bank loan.  Since OP has failed to furnish the same complainant was unable to get the loan.  OP has not denied that there is a deviation from sanction plan in construction of the building.  In spite of direction OP failed to produce the sanction plan before this forum.  OP filed memo stating old sanction plan was surrendered to BDA in order to enable BDA to issue revised/modified sanction plan and same will be produced after the same is issued by BDA.  Hence it is clear that OP has violated the sanction plan in construction, as such sought for modified/revised plan and hence unable to produce the sanction plan.  In additional affidavit filed, the complainant has sworn to the fact that OP has converted the conference hall into the subject apartment.  The electric cables are passed through under ground.  The flat agreed to be sold in favour of the complainant was not shown in the sanction plan.  Hence bank refused to give valuation to the complainant.  These facts are not denied by the OP.  When OP failed to furnish the documents and sanction plan for legal scrutiny; Complainant was unable to arrange the funds. This act of OP amounts to deficiency in service on its part and inspite of receipt of legal notice OP has failed to refund the advance amount.  The contention of the OP that it is not liable to refund the amount has no basis and hence same is not acceptable.

10.    Further it is contended that there is no deficiency in service u/s. 2(i) (g) of the act.

          Sec. 2 (i) (g) of C.P. Act reads as follows:-

“deficiency” means any fault imperfection short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

11.    Since OP has failed to provide the documents and sanctioned plan, complainant was unable to arrange funds to complete the transaction hence sought for refund. Refusal to refund advance amount by OP amounts to deficiency in service.   We are satisfied that complainant is able to prove the deficiency in service on the part of the OP.  Under these circumstances we are of the considered view that complaint is entitled for refund of advance amount of Rs.5 lakhs along with interest at the rate of 12% p.a. and cost of Rs.1,000/-. Accordingly we proceed to pass the following:

ORDER

          The complaint is allowed in part.  OP is directed to refund advance amount of Rs.5 lakhs along with interest at the rate of 12% p.a. from 26.11.2007 till the date of payment to the complainant along with litigation cost of Rs.1000/-. This order is to be complied within four weeks from the date of its communication.

          (Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 31st day of January 2011.)

                                                  PRESIDENT

MEMBER                                          MEMBER             

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