O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The grievance of the complainant against the Ops in brief is that herself and her husband jointly purchased an apartment from Ops for total cost of Rs.26,70,000/-. That they had paid an advance amount of Rs.1.00 lakh in two installments to the Ops. They had applied for sanction of loan of Rs.27,74,000/- and that entire loan amount is paid to Ops, thereby an excess of Rs.1,04,000/- is paid to the Ops. The flat is registered in their name jointly and occupancy certificate was issued on 03/11/2008 and they took possession of the flat. Ops who had assured to return the advance amount of Rs.1.00 lakh along with the difference amount of Rs.1,04,000/- amounting to Rs.2,04,000/- have not paid it despite legal notice and thereby has prayed for an order directing Ops to pay her Rs.2,04,000/- with damages of Rs.1.00 lakh with interest and cost.<br /> <br /> Ops who are duly served with the notice of this complaint by substituted service have remained absent as such are set ex-parte.<br /> <br /> In the course of enquiry into the complaint, the complainant has filed her affidavit evidence reiterating what she has stated in her complaint. She has produced a copy of booking form in which total cost of the flat is mentioned as Rs.26,70,000/-, copy of receipt issued by the Op for receipt of certain amounts, copies of two cheques, copy of sale deed and legal notice. We have heard the counsel for complainant and perused the records.<br /> <br /> On hearing the counsel for complainant and perusal of the records with affidavit evidence of the complainant it is stated by her that they have purchased a flat from Ops for total cost of Rs.26,70,000/-. Of course, it is evident from the copy of the booking form and the Ops have not chosen to deny. It is further contended by the complainant that they applied for sanction of house construction loan of Rs.27,74,000/- to the ICICI Bank which after sanctioning the loan stated to have paid to the Ops. The complainant has produced the document to this effect. Therefore, we find that the complainant found to have paid the entire loan amount to the Ops. But the contention of the complainant that the Op has received an excess of Rs.1,04,000/- over and above the cost of the flat from the bank loan and the Ops who had promised to repay the advance amount have not repaid and her claim that the Ops are liable to refund her Rs.2,04,000/- is not understandable and that the complainant has not come up with real facts with this complaint. Complainant has not placed enough material before us to prove that the Ops had agreed to refund advance amount. In all cases advance amount paid to the seller or developer will be adjusted towards the consideration payable and the transaction will be finalized by so doing. Therefore, in the absence of any undertaking given by the Ops or demands the contention of the complainant that the Ops had agreed to refund the advance amount of Rs.1.00 lakh cannot be believed. Coming to the excess payment of Rs.1,04,000/- over and above the cost of the flat by the bank is concerned. It is found that the bank had sanctioned loan of Rs.27,74,000/- which was released in favour of the Ops some where in the year 2008 and necessarily prior to the execution of the sale deed by the Ops in favour of the complainant and delivering the possession. If the complainant were to be sure that cost of the flat Rs.26,76,000/- was the final say and they were not liable to pay any excess amount than the amount we did not understand how they allowed and authorized the bank to release the entire loan amount of Rs.27,74,000/-. If they were to be assured that the sale consideration was less than Rs.27,74,000/- they ought to have instructed the bank to release only the amount whatever that was due to opponents, but they kept quite and allowed the bank to release the entire loan amount in favour of the Ops. The complainant has also not given details or dates during which her banker released the loan amount to the Ops. That loan amount in our view must have been paid to the Ops prior to the execution of the sale deed dated 04/10/2008 by that time if the complainant had realized or aware that the Ops have received excess amount why did they not deliberate upon it at the time of taking the sale deed, possession of the property and occupancy certificate is a question that would arise which is to be answered by the complainant.<br /> <br /> The complainant it is noticed to have received occupancy certificate from the Ops on 03/11/2008 satisfying themselves that there was no work pending and all the works have been done satisfactorily. Even at that stage it appears that the complainant did not raise her voice about the excess payment or refund of that amount required to be made by the Ops. The complainant after getting sale deed executed on 04/10/2008 and taking occupancy certificate on 03/11/2008 for the first time through legal notice dated 16/01/2009 claimed for refund of Rs.2,04,000/- from the Ops for which we find no basis. Therefore, we find no hesitation to hold that the complainant has not proved the liability of the Ops to refund advance amount of Rs.1.00 lakh and that amount of Rs.1,04,000/- is paid in excess. The claim of the complainant in our view regarding excess payment of Rs.1,04,000/- is doubtful and cannot be acceded. As such we find no merits in the complaint and is liable to be dismissed. With the result, we pass the following order.<br /> <br /> <br /> O R D E R<br /> <br /> Complaint is dismissed.<br /> <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 10th May 2010.<br /> <br /> <br /> <br /> <br /> MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br />