Date of Filing: 27/07/2011

        Date of Order: 30/08/2011

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

Dated:  30^st DAY OF AUGUST 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. 1382 OF 2011

Mrs. Uma Kulkarni,

R/at: A1, Owners Court,

Kasavanhalli Main Road,

Off Sarjapur Road,

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

COMPLAINT NO. 1383 OF 2011

Mr. Krishna Murthy P.R,

S/o. Sri Rama Rao. K.P,

Aged 38 years, R/at: No.43,

4^th Cross, 10^th Main, Gururaja Layout,

B.S.K. 3^rd Stage,

BANGALORE-560 085.                                  …….Complainant No.2.

-V/s-

1. M/s. Mohtisham Properties,

6^th & 7^th Floor, Empire,

M.G. Road, Mangalore-575 003,

Rep. by its Authorised Signatory,

Sri. Arshad.

2. M/s. Mohtisham Properties,

Branch Office at:-

No.434, “Sri Devi”, 16^th Cross,

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

BANGALORE – 560 034.

Rep. by its Authorised

Signatory Sri. Arshad                                         …. Opposite Parties.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: COMMON ORDER:-

In all these cases as the complainants are different, the opposite parties are the same and the allegations are similar, 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.1382/2011 will be referred to as complainant No.1, the complainant in complaint No.1383/2011 will be referred to as complainant No.2 and the opposite parties as the opposite parties.

(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.2,60,000/- to complainant No.1 in Complaint No.1382/2011 and Rs.4,10,000/- to Complainant No.2 in Complaint No.1383/2011, are necessary:-

As per the advertisement of the opposite parties the complainant No.1 on 15.03.2006 had booked one flat bearing No. 307 in 3^rd floor of the building to be constructed by the opposite partides in “Mothisham LBT Grandeur” situated at Hebbagodi Village, Attibele Hobli, Hosur Road, Bangalore by paying Rs.1,50,000/-.  The complainant No.2 had paid Rs.3,00,000/- on 21.03.2006 and booked the flat No.817 in 8^th floor.  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 with interest at the rate of 18% per annum 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.  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 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 there is privity of contract between the parties?
2. Whether there is deficiency in service?
3. Whether the complaints are barred by time?
4. What Order?

5.       Our findings are:-

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

                                      for the following:- 

-:REASONS:-

Point A to D:-

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 No. 010 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.017 dated: 21.03.2006 and the opposite party has received the cheque and encashed it from complainant No.2.  These amounts were paid by the complainants in respect of the booking of flat Nos. 307 and 817 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-7 has stated:-

The OP’s submit that the amount paid by the complainant was payment/investment to be made by Mr. Chandrashekar and Mr.A.M.M. Shafi and it is not consideration paid by the complainant to the OP.  In this regard the Mr. A.MM Shafi by communications dated: 23.01.2006 and 07.02.2006 has specifically stated that the amounts paid towards booking be adjusted towards their investment account.  The complainant has suppressed the fact that she is an allottee through Mr. Chandrashekar and A.MM Shafi and if any amount has to be refunded, the same has to be refunded by Mr. Chandrashekar and Mr.A.M.M. Shafi and not the OP.  In similar circumstances, one Mr. M.R. Naik had filed complaint No.222/2008 seeking for refund as against Mr. AMM Shafi and the OP herein.  In the said complaint Mr. Shafi has clearly admitted that the booking was done in respect of their share of the project and the consumer forum rejected the complaint as against the OP.  At this juncture it would be important to note that by email dated: 01.06.2005 Mr. Chandrashekar wrote to the OP regarding obtaining the NOC from various authorities and related issues.  This makes it clear that Mr. Chandrashekar was the person behind the bookings and was concerned about the finishing of the project.  The email dated: 17.11.2007 is the mail written by Mr.Chandrashekar which explains reasons for the delay in the project.  Further the Email dated: 01.10.2009 clearly shows that Mr. Chandrashekar was actively participating in the project and was aware of the entire gamut of the matter.

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 No. 1 had given the cheque 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 21.03.2006 from complainant No.2 and issued the receipt 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.     The parties have citied (2007) 3 Supreme Court Cases 142, II (2003) CPJ 255, I (2003) CPJ 352, IV (2003) CPJ 740, I (2009) CPJ 217, II (2003) CPJ 320, I (2003) CPJ 231 (NC), IV (2003) CPJ 32 (NC), II (2009) CPJ 29 (SC), II (2009) CPJ 174 (NC), I (2010) CPJ 254 (NC), I (2010) CPJ 99 (NC), I (2010) CPJ 104 (NC), there is no dispute above the proposition of law stated therein.  The facts and circumstances of those cases are not applicable to the facts and circumstances of these cases.

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.     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.1,50,000/- 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 21.03.2006 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. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Keep the original order of this in Complaint No.1382/2011 and a true copy thereof shall be kept in complaint No.1383/2011.
7. 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 30^th Day of AUGUST 2011).

MEMBER                                    MEMBER                           PRESIDENT