Complaint filed on 26.02.2009<br /> Complaint Disposed on 06.06.2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> Dated: 06th of JUNE 2009<br /> <br /> PRESENT:-SRI. S.S.NAGARALE<br /> SMT. M.YASHODHAMMA<br /> SRI. A.MUN IYAPPA. <br /> <br /> COMPLAINT NO.485/2009<br /> <br /> <br /> COMPLAINANT Sri. Ganesan Mathan,<br /> S/o M. Mathan,<br /> Aged about 40 years,<br /> Residing at No.42,<br /> Shree Nanda Dulex Row House,<br /> Near Sindhvai Mata Temple,<br /> Ramol Road C.T.M.<br /> <br /> Rep. by his P.A. Holder<br /> <br /> Sri. M. Selvaraj,<br /> S/o M. Mathan,<br /> Aged about 36 years,<br /> C/o Afeezulla Khan,<br /> No.12, 2nd Main,<br /> 4th Cross, L.B.S. Nagar,<br /> H.A.L. Post, <br /> Bangalore – 17.<br /> <br /> V/s<br /> <br /> OPPOSITE PARTIES 1. K.T.Rajendran,<br /> S/o Tirupathi Gounder,<br /> Aged about 44 years.<br /> <br /> 2. G. Elumalai,<br /> S/o M. Gopal,<br /> Major.<br /> <br /> Both are residing at No.5,<br /> Rama Temple Road,<br /> Doopanahalli, Indiranagar,<br /> H.A.L., 2nd Stage,<br /> Bangalore – 560 008.<br /> -2-<br /> 3. H. Kannan,<br /> S/o Doraiswamy,<br /> Major,<br /> <br /> Residing at No.6/2,<br /> Brindavan Layout, 5th Cross,<br /> Ramaswamy Palya,<br /> Marathahalli Post,<br /> Bangalore – 560 037.<br /> <br /> ORDER<br /> <br /> This is a complaint filed U/s.12 of C.P. Act of 1986 by the complainant seeking direction against the opposite parties (hereinafter called as OP) to refund Rs.3,75,000/- & to pay compensation of Rs.1,00,000/- along with interest & cost.<br /> <br /> 1. The brief averments made in the complaint are as follows:<br /> <br /> The complainant who is working in a private company after traveling to foreign countries hence he authorized his brother Mr. M.Selvaraj to file this complaint. The complainant on 08.09.2008 entered into an agreement of sale with the OP to purchase the residential flat situated at No.11 and 12 khatha No.143, property No.33 of Kaggadasapura, K.R.Puram Hobli, Bangalore East Taluk, measuring 50 X 60 feet’s for a total sale consideration of Rs.23,25,000/-. In this regard on 26.08.08 complainant paid Rs.3,75,000/- cash to OPs as an advance payment. The copy of the agreement dated 08.09.08 signed by OPs has been produced balance payment was agreed to pay as per the terms mentioned in the agreement within 30 days. OP has to arrange the necessary documents for registration when complainant approached OP to furnish occupation certificate so as to enable him raise loan OP did not bother to furnish the same Bank authorities refused to sanction the loan for want of necessary documents on enquiry complainant came to know that OP has violated sanctioned plan. When complainant <br /> <br /> <br /> -3-<br /> insisted for refund of money OP did not receive the notice. For no fault of his he is made to suffer both mental agony & financial loss under the circumstance he is advised to file this complaint & sought for the relief accordingly.<br /> <br /> On service of notice OPs appeared & filed their version mainly contending that the question involved in the instant case is of a matter of specific performance of contract which is purely civil in nature to be resolved by competent Civil Court. This Form has no Jurisdiction to entertain the above complaint as it does not come under the purview of the Consumer Protection Act. Further contended that at no point of time OP has executed or signed or entered into an agreement or contract. Neither complainant has paid any amount to the OP nor OP has received Rs.3,75,000/-. Agreement states cash was paid on 08.09.08 & also states it was paid on 26.08.08. If at all paid, why such huge amount was paid by cash which shown complainant has not approached this Forum with clean hands relief sought is purely of civil nature. Among other grievance prayed for dismissal of the complaint. <br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. OP served interrogatories and complainant answered them. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved the <br /> deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- To what Order?<br /> <br /> <br /> -4-<br /> 5. We have gone through the pleadings of the parties, both oral and documentary and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative.<br /> Point No.2:- As per final order.<br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not in dispute that complainant has entered into an agreement with OP to purchase the schedule property on 08.09.2008. Situated at No.11 and 12 Khatha No.143, property No.33 of Kaggadasapura, K.R.Puram Hobli, Bangalore East Taluk measuring 50 X 60 feets for a total sale consideration paid Rs.3,75,000/- to the OPs as an advance payment copy the agreement is produced. The said agreement is signed by the OPs when OP failed to execute the sale deed within the stipulated time. Complainant sought for refund of amount. OP did not receive the notice.<br /> <br /> As against this the defence of the OPs that why the amount is not paid by way of cheque or DD is not sustainable at all. There is no law or rule that in nature of present transaction, the consideration amount shall be paid by the cheque or DD. In the sale agreement it is clearly mentioned that OPs have received Rs.3,75,000/- from the complainant. That is the good admission & acknowledgement of receipt of amount. Because OPs are not in a position to execute the sale deed. OPs shall refund the amount along with interest. Retaining the amount without executing the sale deed or refunding amounts to deficiency in service on the part of the OPs we are satisfied that complainant is able to prove the deficiency in service against the OPs. Justice will be met by directing OPs 1 to 3 to refund Rs.3,75,000/- <br /> <br /> <br /> -5-<br /> along with interest and costs of Rs.3,000/- to the complainant. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is allowed. OPs 1 to 3 directed to refund Rs.3,75,000/- along with interest at the rate of 9% p.a. from 26.08.2008 & litigation costs of Rs.3,000/- to the complainant. This order is to be complied within four weeks from the date of communication of this order.<br /> <br /> <br /> <br /> MEMBER MEMBER I/c PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />