Date of Filing: 14/03/2011

        Date of Order:21/05/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  21^st DAY OF MAY 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 506 OF 2011

Mrs. Vimala Chandrashekhar,

W/o. Mr. Chandrashekhar,

Aged About 48 years,

R/at: “Sri Soupamika”,

C-7, Owners Court,

Kasavanahalli Main Road,

Near Amrutha Engineering College,

BANGALORE-560 035.                                   …….Complainant No.1.

COMPLAINT NO. 507 OF 2011

Mr. Ravi Errat,

S/o. Sri. M.K. Venugopal,

Aged About 42 years,

R/at: Royale Habitat Apartments,

Begonia 2-E, 2^nd Sector, HSR Layout,

BANGALORE-560 034.                                   …….Complainant No.2.

COMPLAINT NO. 512 OF 2011

Miss. Vidya Chandra Shekhar,

D/o. Mr. Chandrashekhar,

Aged About 22 years,

R/at: “Sri Soupamika”,

C-7, Owners Court, Kasavanahalli

Main Road, Near Amrutha

Engineering College,

BANGALORE-560 035.                                 …….Complainant No.3.

-V/s-

1. M/s. Mohtisham Complexes (P) Ltd.,

6^th & 7^th Floor, Empire,

M.G. Road, Mangalore-575 003,

Rep. by its Authorised Signatory,

Sri. Arshad.

2. M/s. Mohtisham Complexes (P) Ltd,

Branch Office at:-

No.434, “Sri Devi”, 16^th Cross,

5^th Main, HSR Layout, 6^th Sector,

BANGALORE – 560 034.                                     …. Opposite Parties.

BY SRI.H.V.RAMACHANDRARAO, PRESIDENT

-: COMMON ORDER:-

In all these cases the complainants are different, the opposite parties are the same and the allegations are similar.  Hence all these complaints are taken up together for this order and common order is passed and in each of the cases one set of the order is ordered to be kept.  Hereafter the complainant in complaint No.506/2011 will be referred to as complainant No.1, the complainant in complaint No.507/2011 will be referred to as complainant No.2, the complainant in complaint No.512/2011 will be referred to as complainant No.3 and the opposite parties as the opposite party.

(a).   The brief antecedents that lead to the filing of the complaints U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to pay a sum of Rs.4,00,000/- each to complainant Nos. 1 & 3 and Rs.2,50,000/- to Complainant No.2 from the opposite parties, are necessary:-

As per the advertisement of the opposite parties the complainant No.1 on 15.03.2006 had booked two flats bearing Nos. 1104 and 1204 at the 11^th and 12^th floors of the building to be constructed by the opposite parties in “Mothisham LBT Grandeur” situated at Hebbagodi Village, Attibele Hobli, Hosur Road, Bangalore by paying Rs.1,50,000/- each.  The complainant No.2 had paid Rs.3,00,000/- on 25.05.2006 and booked the flat No.109 in the first floor.  The complainant No.3 has booked flat No. 315 in the 3^rd floor on 14.07.2006 by paying Rs.1,50,000/-.  After collecting the booking amount the opposite parties failed to communicate anything with the complainants.  The complainants wrote several letters to the opposite parties.  In this regard complainants visited the place and found nothing was done there.  Hence the complainants wrote to the opposite parties seeking refund of the amount, even then nothing has happened.  Hence the complainants are seeking refund of the amounts paid by them and also compensation of Rs.1,00,000/- each.

2.       In brief the versions of the opposite parties are:-

          There is no privity of contract between the parties.  There is no consideration paid by the complainants to the opposite parties.  Booking in the case of the complainant No.1 is not made for personal use, it is for investment purpose.  Hence he is not a consumer.  The complaints are bad for non-joinder of necessary party.  The opposite parties had entered in to a Joint development agreement with M/s. Lakshmi Bricks and Tiles Private Limited; wherein Mr. Chandrashekar was the coordinator/advisor.  In addition thereto the opposite parties have entered in to an agreement dated: 30.08.2006 with Abode Prop-Solutions.  The complainants have booked apartment with Mr. Chandrashekar and Mr. A.M.M. shafi and the amount which the aforesaid persons paid to pay the opposite parties; instead of routing it through Mr. Chandrashekar or Mr. A.M.M. Shafi.  As such there is no contractual relationship between the parties.  The booking was made in the year 2006.  The alleged letter was issued in the year 2007.  Hence the complaints are barred by time.  The amount paid by the complainants were the payments and is not consideration paid by the complainants.  Mr. A.M.M. Shafi by communications dated: 23.01.2006 and 28.01.2006 has specifically stated that the amount so paid is towards the booking and be adjusted towards their investment accounts.  In a similar case in a complaint No.222/2008 the Forum has held that it is Mr. Chandrashekar and Mr. A.M.M. Shafi who are responsible and not these opposite parties.  Hence the complaints be dismissed.

3.       To substantiate their respective cases, the parties have filed their respective affidavits and documents.  The arguments were heard.   

4.       The points that arise for our consideration are:-      

1. Whether complainant No.1 is not a consumer?
2. Whether there is privity of contract between the parties?
3. Whether there is deficiency in service?
4. Whether the complaints are barred by time?
5. What Order?

5.       Our findings are:-

Point (A) to (E):  As per detailed order

                                      for the following:- 

-:REASONS:-

Point A to E:-

6.      Reading the pleadings in conjunction with the affidavits and documents, it is needless to say that the first complainant paid Rs.1,50,000/- on 15.03.2006 and the opposite parties had accepted it by receipt Nos. 007 and 008 and issued receipt to the complainant No.1.  The complainant No.2 had paid Rs.3,00,000/- to the opposite parties which has been accepted by them by receipt No.15625 dated: 25.05.2006 and the opposite parties have received Rs.1,50,000/- on 14.07.2006 and the opposite party has received the cheque and encashed it from complainant No.3.  Thess amounts were paid by the complainants in respect of the booking of flat Nos. 1104, 1204, 109 and 315 in their proposed apartments in “Mohtisham LBT Grandeur” situated at Hebbagodi Village, Attibele Hobli, Hosur Road, Bangalore.  These cheques were issued by the complainant in favour of the opposite parties and the opposite parties has received the amount as booking towards the flats.

7.       Further the opposite parties have contended that there is no privity of contract between the complainants and the opposite parties; the amounts were paid to the accounts of somebody else; hence there is privity of contract between the parties.  The opposite parties at Para-4 has stated:-

The complainant has booked the apartment with Mr. Chandrashekar and Mr. A.M.M. Shafi and the amount which the aforesaid persons were supposed to pay the OP as their share towards the project was paid directly to the OP instead of routing it through Mr. Chandrashekar or Mr. A.M.M. Shafi.  As such there is no contractual relationship between the complainant and the OP whatsoever.  Mr. Chandrashekar and Mr. A.M.M. Shafi have not been parties to the complaint and hence the complaint is bad for non-joinder of necessary parties.

That means the complainants have paid the amount directly to the opposite party and it has not gone through anybody else.  When the complainants have paid the amounts towards booking and the opposite parties had received the cheques and encashed it, how can they turn round and say that the amounts were paid by Mr. Chandrashekar and Mr. A.M.M. Shafi.  This is nothing but an untenable contention as rightly contended.

8.       The opposite parties had at the fag end at the time of conclusion of the arguments, with a Memo on 17.05.2011 has filed the copy of the letter of Abode Prop-Solutions (P) Ltd said to have been given by Mr. A.M.M. Shafi on 07.02.2006 to the opposite parties.  The complainants are not parties to this letter.  This letter speaks thus:-

The opposite parties had admitted that the cheques were given directly by the complainants to them and they had acknowledged the receipt of it.  When that is the case getting this letter from Mr. A.M.M. Shafi on 07.02.2006 is of no consequences to this case as rightly contended.  This letter is a concocted one and got up for the purpose of this case as rightly contended.

9.       The complainant Nos. 1 and 2 had given the cheques to the opposite parties on 15.03.2006 to which the opposite parties had issued the receipt.  The opposite party has received the cheque on 25.05.2006 from complainant No.2 and issued the receipt and from complainant No.3 has received the cheque on 14.07.2006 and it has been encashed by the opposite parties.  Hence issuing a receipt on 07.02.2006 by Mr. A.M.M. Shafi is of no consequences.  How can Mr. A.M.M. Shafi issue the letter with respect to the cheuqe of 02.02.006 or of cheque dates of 07.02.2006 of the complainants.  In any event Mr. A.M.M. Shafi has not filed any affidavit before this Forum stating that he had received the cheques from the complainant and handed it over to the opposite party as his investment.  There is no such thing.  This letter, therefore, cannot be believed.  When the opposite party has received the cheques issued by the complainants and issued receipts for it and acknowledged it, it means the complainants have paid the money for booking of the flats and opposite parties had received the money as consideration.

10.     The opposite parties had contended that as per the Joint Development Agreement entered between the M/s. Lakshmi Bricks and Tiles Private Limited and Mr. Chandrashekhar husband of the complainant No.1, is the adviser and hence this amount is deemed to be the investment of Mr. Chandrashekhar and Abode Prop-Solutions, hence the amount has to be paid by Abode Prop-Solutions and not by the opposite parties.  The Joint Development Agreement is dated: 30.08.2006; but the amount paid by the complainants is long prior to the Joint Development Agreement.  Hence it has no bearing on the complainants as rightly contended.  Even according to this Joint Development Agreement.  Mr. Chandrashekar is only an adviser to the said company of the opposite parties and he has nothing to do with the dealings of the opposite parties nor is entitled to any investment nor entitled to get any share.  These payments were made long prior to the Joint Development Agreement.  Hence the opposite parties cannot take that amount paid by the complainants as the investment made by Mr. Chandrashekar and Mr. A.M.M. Shafi.

11.     In this case the opposite parties had received the amount for the purpose of constructing the flats and delivering it to the complainants.  But it has not developed the flats.  The opposite party has not stated that it has constructed the flats and was to be delivered at any point of time.  There is no such thing.  Till the flats are constructed, the cause of action will be there to the complainants to file the complaint for refund of the amount or for any other thing as the case may be.  Merely the complainants have paid the money in 2006 it does not mean the cause of action started in 2006 alone.  As the opposite party have not completed or constructed the flats the complainants are entitled to refund of the amount paid by them.

12.     In this case the complainant No.1 had booked two flats, it does not mean that it is a commercial transaction.  Opposite parties never stated that the complainant had booked two flats for the purpose of re-sale or for any other thing.  A flat has been booked for the purpose of getting a flat and not for sale.  There is no such material that has been placed hence the complainant No.1 cannot be termed to be as not a consumer.

13.  In this case the complainants have paid the money to the opposite parties directly as admitted by the opposite parties for booking the flats.  Hence either Mr. Chandrashekar or Mr. A.M.M. need not be a part to the proceedings.  The complainants have not paid the money to any other persons.  Hence no other person be a party to this proceedings.  It is for the opposite parties to have approached Mr. Chandrashekar or Mr. A.M.M. Shafi and file their affidavits, but that has not been done.  Hence an adverse inference has to be drawn against the opposite parties as rightly contended.

14.     Mr. Chandrashekar is the husband of the first complainant and father of third complainant admittedly, it does not mean he should be party to these proceedings or Mr. A.M.M. Shafi to be a party to these proceedings.  There is no contractual relationship between the complainants on one side, Mr. A.M.M. Shafi and Mr. Chandrashekar on the other side.  The opposite parties cited the decision in complaint No.222/2008 dated: 21.04.2008 before the District Consumer Forum (Urban), Bangalore.  The said order is in no way applicable to the facts and circumstances of this case.  The said order is almost a consent order between Mr. Chandrashekar on one side the opposite parties in this case on the other side and the complainant of that case.  That principal is no way applicable to the facts and circumstances of this case.

15.     Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-

ORDER

1. The complaints are ALLOWED-IN-PART.
2. The opposite parties are directed to pay to the complainant No.1 a sum of Rs.3,00,000/- with interest at the rate of 12% per annum from 15.03.2006 until payment, pay Rs.3,00,000/- to the complainant No.2 with interest at the rate of 12% per annum from 25.05.2006 until payment and pay Rs.1,50,000/- to the complainant No.3 with interest at the rate of 12% per annum from 14.07.2006 until payment within 30 days from the date of this order.
3. The opposite parties are directed to pay Rs.2,000/- each in each of the cases as costs of this litigation to the complainants in these cases.
4. The opposite parties are also directed to send the amount mentioned above, to the respective complainants through DD by registered post acknowledgment due within the time stated above and submit the compliance report in each of the cases with necessary documents within 45 days from the date of this order.
5. Keep the original order of this in Complaint No.506/2011 and copy thereof shall be kept in complaint Nos. 507/2011 & 512/2011.
6. Send a copy of this order to both the parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 21^st Day of May 2011).

MEMBER                                  MEMBER                        PRESIDENT