| Final Order / Judgement | Complaint Filed on:05.09.2020 | Disposed on:25.02.2022 |
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN) DATED 25th DAY OF FEBRUARY 2022 PRESENT:- SRI.K.S.BILAGI | : | PRESIDENT | SMT.RENUKADEVI DESHPANDE | : | MEMBER |
Complainant/s | V/s | Opposite party/s | Shri Mahaboob Basha Manikindi, aged about 47 years, S/o Mahaboob Ali.M.C., R/at F-0502, Nitesh Columbus Square, Bagalur Main Road, Kattigenahalli, Bangalore-560063. Sri A.Ravishankar, Adv. | | 1. M/s Sammys Dreamland Co. Pvt. Ltd., No.9, 2nd Floor, BEL Air Drive, Mekhri Circle, Bellary Road, Bangalore-560032. Represented by its Director. Sri Joseph Anthony, Adv. 2. Shri Avinash Rajanna, aged about 34 years, S/o Shri Rajanna, C/o M/s Sammys Dreamland Co.Pvt. Ltd., No.9, 2nd Floor, BEL Air Drive, Mekhri Circle, Bellary Road, Bangalore-560032. And also residing at No.31/A, 31st A Cross, Jayanagar 6th Block, Bangalore-560063. EXPARTE |
ORDER SRI.K.S.BILAGI, PRESIDENT
1. The complainant seeks an order against the OPs for payment of Rs. 18,52,250/- with interest at 18% p.a. from the date of complaint and other reliefs. 2. The case set up by the complainant in brief is as under:- The complainant wanted to purchase plot No.25 from the OP No.1. OP No.2 was working with OP No.1 as Head of sale. The complainant paid advance amount of Rs.5,00,000/- by means of a cheque to the OP No.1 in respect of plot and he has also paid Rs.11,00,000/- by means of a cheque to OP No.1. The OP No.1 issued a receipt for having received Rs.16,00,000/-. It is further case of the complainant that the plot No.25 was reimbursed as plot No.28 and plot No.70 was allotted to him on 14.08.2019. the complainant made payment of Rs.15,00,000/- in cash towards sale consideration to OP No.2 who received the same on behalf of OP no.1. 3. The OP No.2 failed to refund Rs.15,00,000/-. However, after discussion, the OP No.2 issued cheque for Rs.15,00,000/- on 08.12.2019 towards refund. The OP No.1 has refunded Rs.16,00,000/- by transferring the amount to the complainant’s account on 16.12.2019. 4. The OP No.2 deliberately changed his mobile number and to failed to comply the request of the complainant. Accordingly, complainant lodged a complied against OP No.2 with jurisdictional police for payment of Rs.15,00,000/-. Both OPs failed to refund Rs.15,00,000/- and also liable to pay interest at 18% p.a. from 17.08.2019, Rs.1,00,000/- towards compensation and Rs.10,000/- towards other expenses. The act of the OPs amounts to deficiency of service. Hence, this complaint. 5. In response to the notice, OP No.1 alone appeared and filed version and version came to be received on payment of Rs.10,000/-. The OP No.2 failed to appear before this Commission and OP No.2 has been placed exparte. 6. The OP No.1 is not liable to pay any amount to the complainant that OP No.1 is not responsible for alleged payment of Rs.15,00,000/- to the OP No.2. This Commission has no jurisdiction to entertain the complaint. The alleged cash payment of Rs.15,00,000/- to the OP No.2 is outside the scope of employment. The OP No.1 refunded Rs.16,00,000/- to the complainant. There is no deficiency of service on the part of OP No.1. The OP No.1 requests to dismiss the complaint. 7. The complainant files his affidavit evidence and relies on certain documents. The OP No.1 has filed affidavit evidence and rely on one document. 8. The following points arise for our consideration as are:- - Whether the complainant proves deficiency of service on the part of OPs?
- Whether the complainant is entitled to relief mentioned in the complaint?
- What order?
- Our answers to the above points are as under:
Point No.1: Affirmative in part Point No.2: Affirmative in part Point No.3: As per final orders REASONS - Point Nos.1 and 2: Most of the facts are not in dispute except payment of Rs.15,00,000/- by way of cash to OP No.2 as an employee of OP No.1. So far payment of Rs.5,00,000/- and Rs.11,00,000/- under two cheques to OP No.1 is not only admitted by the OP No.1, but OP No.1 refunded this amount of Rs.16,00,000/- on 16.12.2019.
- According to the complainant, OP No.2 has received cash of Rs.15,00,000/- as an employee of OP No.1. Whereas, OP No.1 disputes payment of this amount and OP No.2 never received this amount as an employee and on behalf of OP No.1. We carefully perused the documents produced by the complainant. Document Nos. 1 to 10 are not in dispute. Document No.11 is cost sheet and E-mail communication between complainant and OP. The complainant relies on document No.12 stating that OP No.1 issued credit note for Rs.15,00,000/-. Similarly, document No.13 is also receipt issued by OP No.1 dated 22.08.2019. Document Nos.12 and 13 bear the seal and signature of same person. Under such circumstances, it is ought to believe that OP No.2 has not received Rs.15,00,000/- as an employee of OP No.1. Document Nos.14 to 16 are E-mail and whatsapp chats between the parties. It is relevant to note that according to the complainant and document No.17, OP No.2 issued his own cheque dated 08.12.2019 towards refund of Rs.15,00,000/-. Document Nos.12 and 13 bear the signature of OP No.2. Document No.17 cheque is not issued by OP No.2 on behalf of OP No.1. Under such circumstances, it can be easily held that complainant paid Rs.15,00,000/- in cash to the OP No.2 and OP No.1 is nothing to do with this payment. This cheque returned dishonored. After dishonor of this cheque, the complainant has not initiated any action against the OP No.2. It is admitted and proved from document No.18 that OP no.1 refunded Rs.16,00,000/- amount by means of a transfer to the complainant. Immediately, after transfer of this amount, complainant never approached OP No.1 stating that OP No.2 received Rs.15,00,000/- cash from him on behalf of OP No.1 and failed to refund the same. If really, OP No.2 received Rs.15,00,000/- on behalf of OP No.1, I failed to understand why the complainant not issued cheque for Rs.15,00,000/- in favour of OP No.1 and why he has not taken receipt from OP No.2. This conduct of the complainant also indicates that he has paid Rs.15,00,000/- to OP No.2 in his individual capacity. The complaint came to be filed against OP No.2. OP No.2 under his statement agreed to refund Rs.15,00,000/- to the complainant. When OP No.2 has issued such statement and issued his own cheque towards refund of Rs.15,00,000/-, the complainant is not right in saying that OP No.2 received cash of Rs.15,00,000/- on behalf of OP No.1. It is true that despite receipt of legal notice dated 08.07.2020, OP No.2 has not issued any reply, whereas OP No.1 has issued reply dated 03.08.2020 denying its liability to pay Rs.15,00,000/- and OP No.2 neither refunded this amount nor deposited in the account of OP No.1. It is true that OP No.2 failed to appear before this Commission, does not mean that the complainant paid Rs.15,00,000/- to OP No.1. In view of refund of Rs.16,00,000/- by OP No.1, there is no deficiency of service on behalf of OP No.1. Whereas, complainant proves non-refund of Rs.15,00,000/- by OP No.2 and this act of OP No.2 amounts to deficiency of service. Therefore, OP No.2 alone is liable to refund Rs.15,00,000/- to the complainant.
- The complainant claims 18% interest p.a. from the date of complaint and also Rs.2,42,250/- towards interest from 17.08.2019, Rs.1,00,000/- as a compensation and Rs.10,000/- towards misc. expenses. There is no privity of contract between the complainant and OP No.2 with regard to payment of interest on Rs.15,00,000/-. When the complainant proves that OP No.2 failed to refund Rs.15,00,000/-. Under such circumstances, the complainant is entitled to compensation of Rs.1,50,000/- from OP No.2 not an interest. The complainant is not entitled to additional sum of Rs.1,00,000/- as a compensation. The complainant has engaged the service of an advocate, therefore it is proper to award cost of litigation at Rs.15,000/-. The complainant has not produced any documents for having spent Rs.10,000/- towards taxy charges and telephone.
- Point No.3:- In view of the discussion referred above, complaint requires to be dismissed against OP No.1 and complaint requires to be allowed in part against OP No.2. OP No.2 is liable to refund Rs.15,00,000/- with compensation of Rs.1,50,000/- and Rs.10,000/- towards cost of litigation to the complainant. We proceed to pass the following
O R D E R - The complaint is dismissed against OP No.1.
- The complaint is allowed in part against OP No.2.
- The OP No.2 shall refund Rs.15,00,000/- with compensation of Rs.1,50,000/- and Rs.10,000/- towards cost of litigation to the complainant.
- The OP No.2 shall comply this order within 60 days from this date, failing which OP No.2 shall pay interest at 10% p.a. on Rs.15,00,000/- after the expiry of 60 days till final payment.
- Furnish the copy of this order and return the documents with extra pleadings to the parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 25th day of February, 2022) (Renukadevi Deshpande) MEMBER | (K.S.BILAGI) PRESIDENT |
Documents produced by the Complainant which are as follows:- 1. | Document No.1 to 9 - photographs | 2. | Document No.10 – Map of the property published by OP No.1 | 3. | Document No.11 – Cost sheet and email communication from 08.08.2019 to 16.10.2019 | 4. | Document No.12 – Credit note issued by OP No.1 | 5. | Document No.13 – copy of receipt issued by OP No.1 | 6. | Document No.14 – E-mail communication during August 2019 | 7. | Document No.15 – E-mail communication during September 2019 | 8. | Document No.16 – Whatsapp chat messages between complainant and OP No.2 | 9. | Document No.17 – Cheque issued by OP No.2 for Rs.15,00,000/- | 10. | Document No.18 – Endorsement issued by complainant’s banker intimating dishonor of cheque | 11. | Document No.19 – Letter issued by OP No.1 for return of sum of Rs.16,00,000/- | 12. | Document No.20 – Copy of police complaint lodged by complainant | 13. | Document No.21 – Statement made by OP No.2 before police | 14. | Document No.22 – Copy of whatsapp communication by OP No.2 to complainant | 15. | Document No.23 – Copy of legal notice | 16. | Document No.24(a) and 24(b) – Postal acknowledgements | 17. | Document No.25 – Copy of reply legal notice issued by OP No.1. | 18. | Certificate under Section 65-B of Indian Evidence Act | 19. | Copy of E-mail correspondence and whatsapp message |
Documents produced by the OP which are as follows:- 1. | Ex.R.1- Certified copy of resolution dated 29.11.2021 |
(Renukadevi Deshpande) MEMBER | (K.S.BILAGI) PRESIDENT |
| |
