Complaint filed on: 20-04-2010 <br /> Disposed on: 13-09-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT <br /> CONSUMER DISPUTES REDRESSAL FORUM,<br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.877/2010<br /> DATED THIS THE 13th SEPTEMBER 2010<br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> SRI.GANGANARASAIAH., MEMBER<br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> Complainant: - <br /> <br /> Sri.K.M.Jayakumar Raikar<br /> S/o. Sri.K.M.Annushet Raikar, <br /> Aged about 42 years, <br /> R/at No.14027, Castle Blvd., <br /> Apartment No.201, Silver Springs<br /> MD-20904, U.S.A.<br /> <br /> <br /> V/s<br /> <br /> Opposite party: - <br /> <br /> M/s. APNA SAPNA<br /> No.65-67, 1st floor, <br /> Sri Sadguru complex, <br /> Bannerghatta Road, <br /> Bangalore-560 076<br /> Rep. by its CEO, <br /> Sri.Sunil Baberwal <br /> <br /> <br /> O R D E R<br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> The Grievance of the complainant against the opposite party [hereinafter called as OP for short) in brief is that, on the publication issued by the OP promising to provide sites, he applied for allotment of a site measuring 50 X 80 feet in its project called as “APNA SAPNA PHASE-1” and paid Rs.18,00,000/- towards cost of the site on 16-10-2006. The OP acknowledged the receipt of the amount and promised to provide a site stating that after approval by the BMRDA, the site will be registered. When the OP did not show much progress, he approached the OP to collect certain information about the progress of the formation of layout. But the OP went on postponing by contending that approval of the BMRDA will be obtained soon. Despite this promise, even till December 2009 the OP did not show any progress, therefore chosen to seek refund of his money. Then he decided to take back the cost of 1500 Sq. Ft. with interest but till date the OP has refunded Rs.4,50,000/- and failed to refund the balance amount, therefore stated when the OP did not show any progress even after four years, he choose to take back money and again demanded for repayment and stated that if the OP had provided the site, its value could have gone up, as the value of the sites in surrounding area has gone up 50%. Therefore attributing deficiency to the OP has prayed for a direction to the OP to refund balance Rs.13,50,000/-, to award cost of Rs.5,00,000/- and also costs.<br /> <br /> 2. Op has appeared through his advocate and filed his version, contending that the complaint is not maintainable and to be dismissed. The OP admitted to have received Rs.18,00,000/- from the complainant towards cost of the site measuring 4000 Sq. Ft. It is further contended that he has purchased 24 acres of land in a village at Anekal taluk for formation of layout. But because of, the policy of the government that area was declared as industrial zone and he could not get the approval for formation of layout. That he has applied to BMRDA seeking permission for the change of land use and stated as soon as the permission is given he will form the layout and provide sites. He has further contended that, he has in addition to repayment Rs.4,50,000/- to the complainant agreed to refund the balance amount to the complainant by way of monthly installment of Rs.2,00,000/- each and further stated accordingly he has paid Rs.2,00,000/- each on 11-5-2010 and 16-6-2010 to the complainant and in all he has paid Rs.8,50,000/- and stated that is ready to repay the balance amount Rs.9,50,000/- in monthly installment of Rs.2,00,000/- and prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the power of attorney holder of the complainant and the OP have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced a brochure of the OP, copies of certain E-mails he had sent to the OP and a copy of legal notice he got issued. The Op has produced two bank counter foils dated 11-5-2010 and 16-6-2010. We have heard the counsel for both parties and perused the records.<br /> <br /> 4. On the above contentions following points for determination arise.<br /> <br /> 1. Whether the OP has proved that he has in all repaid <br /> Rs.8,50,000/- to the complainant?<br /> 2. Whether the complainant proves that the OP has caused deficiency in not refunding the balance amount?<br /> 3. To what reliefs, the complainant is entitled to?<br /> <br /> 5. Our findings are as under:<br /> Point no.1: In the Negative <br /> Point no.2: In the affirmative <br /> Point no.2: See the final Order<br /> <br /> REASONS<br /> 6. Answer on Point No.1 and 2: As evident from the contentions of the parties, there is no dispute between them, in this complainant having had applied for allotment of a site measuring 4000 Sq. Ft. and payment of Rs.18,00,000/- to the OP. The OP has also not disputed, that evenafter lapse of four years after receipt of money from the complainant no progress in formation of layout is done convincing the complainant. The OP by further contending that, he has already repaid Rs.8,50,000/- has agreed to repay the balance amount Rs.9,50,000/- in installments. But the complainant has disputed receipt of Rs.4,00,000/-, however has admitted receipt of Rs.4,50,000/- from the OP. With this, we shall go to the dispute which is lingering between the parties regarding balance amount. <br /> <br /> 7. The OP by producing two counter foils of State Bank of India, St. Marks Road branch dated 11-5-2010 and 16-6-2010 contended to have deposited Rs.2,00,00/- each to the account of the complainant and thereby stated that in addition to admitted payment of Rs.4,50,000/- he has deposited Rs.4,00,000/- to the account of the complainant and is only due Rs.9,50,000/-. The complainant has denied receipt of this Rs.4,00,000/- and by admitting receipt of Rs.4,50,000/- claimed the balance amount of Rs.13,50,000/-. <br /> <br /> 8. The learned counsel appearing for the complainant disputing deposit of Rs.4,00,000/- by the OP to the complainant account has produced account extract of the complainant’s account right from September 2006 till 30-6-2010. In this statement we do not seen crediting of any money by the OP to the account of the complainant’s. Added to this, the counsel for the complainant has also produced an E-mail of the manager, State bank of India, St. Marks Road, wherein the manager of the complainant’s bank in reply to the enquiry of the complainant has stated that they have verified the account of the complainant maintained in their branch and confirmed that no cheques of Rs.2,00,000/- each has been deposited into the complainant’s account on 11-5-2010 and 16-6-2010. On verifying the account extract of the complainant and the letter of the manger of the complainant’s bank, it is manifest that the alleged payment of Rs.2,00,000/- each to the account of the complainant’s on 11-5-2010 and 16-6-2010 are not credited and the counter foils of the challan are not then authenticated proof of crediting any amount to the account of the complainant. The learned counsel for the complainant submitted that the OP in the complainant’s bank taking advantage of drop box facilities has got affixed bank seal on the counter foils and produced them to show as if he has deposited those amounts to the account of the complainant and misled the forum by producing fabricated challans. These counter foils produced by the OP looks like to have been concocted as submitted by the counsel for the complainant with an intention not only to wood wink this forum but also the complainant. In view of the account extract of the complainant’s account and letter of the manager of his banker these counter foils produced by the OP are to be unerringly are to be held has concocted documents and the OP has mis-presented fact. In the absence of proof of crediting two amounts to the account of the complainant, this production of concocted documents and mis-presentation shall have to be viewed very seriously beside condemning the courage and attitude of the OP in producing such documents making false representation and filing affidavit to that effect. As the OP has not proved payment of Rs.4,00,000/- through deposit to the account of the complainant’s, the OP shall have to be taken to have only repaid Rs.4,50,000/- to the complainant and still due Rs.13,50,000/-. <br /> <br /> 9. The OP admittedly has not been able to prove his capability to provide sites. It is further noticed without being not certain of forming layout collected huge amount not only from the complainant but also from others and had great advantage of utilizing that money for his benefits for all these years and now he can not be given further benefit of repayment of balance amount in installments. The OP having had advantage of using the complainant’s money for more then four years has benefited largely as such is liable to pay interest on the amount due. Besides this, because of the dubious method the OP has adopted with false representation and to curb such tendency and in order to compensate the complainant reasonably. We propose to impose punitive damages besides ordering refund of money with interest. With the result, we answer point no.1 in the negative and point no.2 in the affirmative and pass the following order.<br /> <br /> ORDER<br /> <br /> Complaint is allowed. OP is directed to refund Rs.13,50,000/- to the complainant within 60 days from the date of this order with interest at 16% per annum from the date of deposit till that is repaid. <br /> <br /> OP shall pay punitive damages of Rs.1,00,000/- out of which Rs.75,000/- be paid to the complainant and balance amount shall be remitted to the legal aid account maintained by this forum. OP shall pay this amount within 60 days from the date of this order. Failing which, he shall pay interest at 12% per annum from the date of this order till the date of payment. <br /> <br /> Op shall also pay cost of Rs.5000/- to the complainant. <br /> <br /> Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 13th September 2010.<br /> <br /> <br /> <br /> Member Member President<br />