Date of Filing:13.06.2008<br /> Date of Order:01.08.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 1ST DAY OF AUGUST 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> COMPLAINT NO: 1166 OF 2007<br /> <br /> <br /> 1. Saldin Samuel,<br /> S/o S. Samuel.<br /> <br /> 2. Smt. Vanathi Devi,<br /> W/o Saldin Samuel,<br /> <br /> Both are residing at:<br /> No. 1/16, 3rd Cross,<br /> Sri. Mahaklakshmi Ranganatha Nilaya,<br /> I Main, Bharathi Layout,<br /> Christ School Road, S.G. Palya,<br /> Bangalore-560 02 Complainant<br /> <br /> <br /> V/S<br /> <br /> 1. M/s GE Money Housing Finance,<br /> Having its Registered Office at<br /> No.4, Link Road, Jaganath Pura Extention,<br /> New Delhi-110 014,<br /> Represented by its President & CEO.<br /> <br /> 2. M/w GE Money Housing Finance,<br /> Having its Branch Office at<br /> No.4, Prime Business Centre,<br /> Sri. Krishna Tempe Road,<br /> Indiranagar, I Stage, <br /> Bangalore-560 076,<br /> By its Branch Manager.<br /> 3. M/s Pyramid Embassy,<br /> having its office at No.7,<br /> II floor, 16th Main, BTM II Stage,<br /> Bangalore-76.<br /> <br /> Represented by its partner<br /> Sri. Muthu Kumar Swamy. Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> <br /> This is a complaint filed U/Sec. 12 of the Consumer Protection Act, 1986.<br /> The facts of the case are that the complainants entered into sale agreement on 9/8/2005 with opposite party No.3. They have paid Rs.10,000/- as token advance on 14/3/2005 towards purchase of flat. The complainants have paid additional amount of Rs.4,67,600/- by way of cheque on 13/8/2005 to the developers. The total amount paid by the complainants is Rs.4,77,600/-. The complainants had agreed to pay the balance sale consideration of Rs.27,06,400/- to the developers by way of Bank loan on the completion of the various stages of construction. The complainants approached the opposite party No.1 and 2 for sanction of home loan. The Executive of the GE Money taken salary slip, Bank statements along with loan application. The complainants submitted all necessary papers and opposite party No.1 and 2 sanctioned loan to the tune of Rs.30,00,000/- vide loan sanction letter dated 31/3/2005. The complainants asked to deposit 24 cheques of each amounting to Rs.24,628/- towards payment of monthly EMI. Complainants have paid Rs.5,100/- as loan processing fee. The opposite parties promised that they would hand over the DD for Rs.30,00,000/-. The Xerox copy of the DD was handed over to the complainants. It is the case of the complainants’ that thereafter opposite party No.1 did not release the loan as promised for the reasons best known to them. The complainants approached the opposite parties several time and there was no response. On account of the deficiency in service by the opposite party No.1 the developer did not execute sale deed since the opposite party No.1 failed to release the sanctioned loan of Rs.30,00,000/-. Complainant got issued legal notice. The developer terminated the agreement of sale and forfeited sum of Rs.3,00,000/-. The opposite party No.1 refunded Rs.24,628/- after much persuasion. The opposite parties are liable to pay an amount of Rs.3,00,000/- which was forfeited by the developers with interest. The complainants have prayed compensation of Rs.15,00,000/- from opposite party No.1 and 2 for suffering mental agony and deficiency in service and the complainants have prayed opposite party No.3 be directed to refund Rs.3,00,000/- with interest.<br /> <br /> 2. Notice was issued to opposite parties. Notice was served. Opposite party No.1 and 2 have not appeared in spite of service of notice. Opposite party No.3 has appeared through advocate. Defence version of opposite party No.3 filed. Wherein they have admitted that the complainants have paid token advance of Rs.10,000/- on 14/3/2005 and additional amount of Rs.4,67,600/- was also paid by way of cheque on 13/8/2005. Opposite party No.3 has terminated agreement of sale and forfeited the amount which was advanced to a sum of Rs.3,00,000/- by letter dated 24/4/2006. Complainants have not able to generate finance for purchase of land. Hence, opposite party No.3 terminated the agreement. Opposite party No.3 submitted that it has not committed any deficiency of service. <br /> <br /> 3. Arguments are heard. <br /> 4. The points for consideration are:- <br /> 1. Whether the opposite party No.3 shall be directed to <br /> refund of Rs.3,00,000/- with interest? <br /> <br /> 2. Whether the opposite party No.3 has any justification to forfeit advance amount of Rs.3,00,000/- paid by the complainant? <br /> <br /> 3. Whether the opposite party No.1 and 2 may be directed to pay the compensation? If so what is the quantum of compensation?<br /> <br /> <br /> REASONS<br /> <br /> 5. POINT NO.1 & 2:- This is a very simple case. All most all the facts are admitted. The fact that the complainants have paid Rs.10,000/- as token advance on 14/3/2005 to the opposite party No.3 is also admitted. It is also admitted case of the opposite party No.3 that it has received additional amount of Rs.4,67,600/- by way of cheque on 13/8/2005 drawn on HDFC Bank, Bangalore. In this way opposite party No.3 had received total amount of Rs.4,67,600/-. As regards the payment of Rs.4,77,600/- by the complainant to the opposite party No.3 there is absolutely no dispute. The opposite party No.3 cancelled the agreement and forfeited Rs.3,00,000/- and paid balance amount of Rs.1,77,600/- to the complainants. It is very unfortunate that opposite party No.3 being a developer without there being any clause in the agreement had illegally forfeited Rs.3,00,000/- out of the advance amount paid by the complainants. Opposite party No.3 has no authority or right in law to forfeit the amount paid by the complainants. The opposite party No.3 in the defence version has not stated or justified the forfeiture of the amount. Opposite party No.3 has not at all referred any clause in the agreement or any law or regulations to show that they have got authority to forfeit Rs.3,00,000/-. By going through the contents of entire agreement there is nothing to show that the opposite party No.3 is entitled to forfeit Rs.3,00,000/- out of the advance amount on cancellation of the agreement. When this is the case how can opposite party No.3 can forfeit Rs.3,00,000/- out of the advance amount. The forfeiture of Rs.3,00,000/- is illegal and without any authority of law. Therefore, the opposite party No.3 is entitled to refund Rs.3,00,000/- with interest to the complainants. The complainants sought interest at 18% p.a on the said amount. The interest claimed by the complainant is quite just, fair and reasonable. The opposite party No.3 having enjoyed the amount paid by the complainants are bound to refund Rs.3,00,000/- with interest. Therefore, point No.1 and 2 are answered in favour of the complainants.<br /> <br /> 6. POINT NO.3:- As regards the opposite party No.1 and 2 are concerned it is again unfortunate that they have not released the sanctioned loan amount to the complainants. The opposite party No.1 and 2 have collected all the documents and 24 cheques from the complainants. They have also recovered processing fee of Rs.5,100/- for sanction of loan and the complainants have also paid Rs.1,984/- towards payment of TATA AIG General Insurance for the flat. The opposite party No.1 has also collected one EMI amount of Rs.24,628/- from the complainants. The loan of Rs.30,00,000/- was sanctioned to the complainants by opposite party No.1. A D.D was also ready. A Xerox copy of the DD for Rs.30,00,000/- was also handed over to the complainants. In spite of all these things opposite party No.1 and 2 did not release the loan amount as promised. The complainants had approached the opposite party No.1 and 2 several times and sent several e-mails and requested for releasing the loan but in spite of request no proper response was forthcoming. The complainants got issued legal notice asking the opposite party No.1 and 2 to disclose the reasons for not disbursing the loan. The opposite party No.1 and 2 ignored the request of the complainants and ultimately did not release the loan amount though sanctioned after due process. On account of the loan not been released or paid to the developer the complainants have suffered mental agony, tension, inconvenience and financial loss. Since the opposite party No.1 and 2 failed to release the sanctioned loan amount the agreement entered into with the opposite party No.3 for purchase of flat came to be cancelled and thereby the complainants have also put to lot of inconvenience, financial loss, mental tension etc.,. Therefore, the opposite party No.1 and 2 shall be directed to pay a reasonable amount of compensation to the complainants. The complainants have prayed compensation of Rs.15,00,000/- against opposite party No.1 and 2. I feel this amount is on higher side. On the facts and circumstances of the case, it would be just, fair and reasonable to direct the opposite party No.1 and 2 to pay compensation of Rs.50,000/- to the complainants. The opposite party No.3 shall be directed to refund Rs.3,00,000/- with interest. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 7. The complaint is partly allowed. The opposite party No.1 and 2 are directed to pay Rs.50,000/- to the complainants. If opposite party No.1 and 2 fails to comply the order in payment of compensation within 30 days from the date of this order the compensation amount carries interest at 18% p.a from the date of this order till payment/realization. <br /> <br /> 8. The opposite party No.3 M/s Pyramid Embassy is directed to refund Rs. 3,00,000/- along with interest at 18% p.a from 13/8/2005(date of payment) till payment/realization. <br /> 9. The complainants are entitled to Rs.2,500/- from opposite party No.1 and 2 and Rs.2,500/- from opposite party No.3 towards costs of the present proceedings. <br /> 10. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 11. Pronounced in the Open Forum on this 1ST DAY OF AUGUST 2008. <br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> <br />