Date of Filing:18.07.2007<br /> Date of Order: 22.01.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> Dated: 22ND DAY OF JANUARY 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 /> <br /> <br /> <br /> COMPLAINT NO: 1506 OF 2007 <br /> <br /> S. K. Bhagat,<br /> S/o Late Sri. D.G. Bhagat,<br /> R/at No.D/9, NDES Part-2,<br /> I Floor, NEW DELHI-560 049,<br /> GPA Holder of Mr. Dhiraj S. Bhagat,<br /> S/o S.K. Bhagat. Complainant<br /> <br /> V/S<br /> 1) The Managing Partner,<br /> M/s Shcriff Constructions,<br /> No.73/1, “Sheriff Centre”,<br /> 5th Floor, St. Mark’s Road,<br /> Bangalore-560 001.<br /> <br /> 3) The Managing Partner,<br /> M/s Platinum City,<br /> No.73/1, “Sheriff Centre”,<br /> 5th Floor, St. Mark’s Road,<br /> Bangalore-560 001. Opposite Parties<br /> <br /> ORDER<br /> <br /> This is a complaint filed U/Sec.12 of the Consumer Protection Act, 1986 claiming refund of Rs.10,26,224/- as compensation with interest and costs.<br /> The facts of the case are that, as the complainant was minor the father of the complainant entered into an agreement of sale dated 15.9.1996 for the purchase of Apartment/Flat No.E-09-11 totally measuring 1479 sq.ft., for a total sale consideration of Rs.14,77,521/-. Accordingly, an amount of Rs. 4,62,774/- was paid as initial advance by way of two cheques and the remaining balance amount of Rs.10,14,747/- payable in 8 installments. The agreement of sale dated 15.9.1996 is produced. As per the agreement of sale the opposite party had undertaken to complete the construction of the Flat by December-1999 and the registration of the above flat and possession shall be given after completion of the construction. The complainant further submits that, he has paid another sum of Rs.17,892/- during the month of December-1997 and the receipt of the above amount is acknowledged by the opposite party by the letter dated 01.02.1999. As there was no progress in the construction of the Flat in Block ‘E’, the complainant stopped payment towards balance amount to the opposite party. The complainant in the month of February-1999 visited the Schedule Property to know about the construction and surprised that the opposite party had not even started the construction of ‘E’ Block and the work of Block ‘G’ had just started. There was no chance of even Block ‘G’ to be made ready by December-1999 and the quality of the work being done was not as per the standards specified by the opposite party in the agreement of sale. As the construction was not completed, he intended to cancel the agreement and sought for refund of the advance amount with interest. The complainant further submits that, his shock and surprise he received a letter dated 28/12/2006 from the opposite party seeking for revised quotation with higher rate or an alternative flat in Block ‘G’. Accordingly, the complainant replied to the said letter and sought for refund of the advance amount with interest. The complainant issued legal notice dated 03/04/2007 to the opposite parties and upon receipt of the said notice they issued an untenable reply without complying the demands made in the notice. The complainant submits that there is no pendency of any legal proceedings and litigation in any court and there is no other alternative than to launch this complaint seeking for relief before this Forum. Hence, the complaint.<br /> <br /> 2. Notice was issued to opposite party. They have put in appearance through counsel and filed version. In the defense version, it is submitted that as the complainant was minor his father entered into an agreement of sale for purchasing Flat in Block ‘E’ is admitted. In December-1998 the opposite parties informed the complainant that there will be delay in construction of Block ‘E’ and the complainant was advised to opt for an alternative flat. On 05/12/1998 the complainant confirmed that he had opted for a flat in Block ‘G’ and he wanted the earlier agreement to be amended and he would also like to have a car parking space in the said Block. On 20/12/1998 the complainant again confirmed that he will have a flat in G/04/12 with a car parking area in ‘G’ Block and requested the opposite party to send the agreement of sale reflecting the re-allotment of flat. On 12/02/1999 the complainant visited the site and satisfied with the progress of the work. At that time the opposite party gave a letter dated 01/02/1999 mentioning about the progress of work and demanding payment of Rs.5,31,733/- being the outstanding installment. The complainant acknowledged the receipt of the said letter by signing on copy of the same. On 10/07/2001, since the opposite party unable to offer a Flat No.2 in the 3rd or 4th floor, they offered him another bigger flat facing swimming pool measuring 1513 sq.ft., and on the same day the opposite parties informed that the flat in ‘G’ Block are ready for occupation with good rental prospects, children’s park, tennis and basket ball court etc., and requested the complainant to come and take over the possession of the flat by paying balance sale consideration amount. The opposite parties also forwarded the agreement to sell requesting the complainant to sign and execute the same and take the transaction forward to its logical conclusion. The complainant did not pay the outstanding installment. The opposite parties further submitted that, the complainant insisted that he will have only the flat booked in Block ‘E’ and will never take the flat in ‘G’ Block. The opposite parties after waiting for several years and after failing to convince the complainant to conclude the transaction, had no other option to allot the flat in ‘G’ Block to some other persons. The complainant himself has not come forward to complete the transaction in respect of the flat in Block ‘G’. In view of all these reasons, the complainant is not entitled to enforce the terms and conditions agreed to in respect of the flat in Block ‘E’, costs and consequences and prayed to dismiss the complaint.<br /> <br /> <br /> <br /> <br /> 3. Affidavit evidence of GPA Holder of complainant has been filed and on behalf of opposite party affidavit evidence of Lakshmi Narayan, employee of the opposite parties has been filed. Arguments are heard. <br /> <br /> <br /> 4. The points for consideration are:-<br /> 1. Whether there was a deficiency in service on the <br /> part of the opposite parties? <br /> <br /> 2. Whether the complainant is entitled for refund of Rs.10,26,224/- with interest from the opposite parties? <br /> <br /> <br /> <br /> <br /> <br /> <br /> REASONS<br /> <br /> 5. It is an admitted case of the parties that, the complainant has paid Rs.4,62,774/- for purchase of apartment under the agreement of sale dated 15/9/1996 and the complainant has deposited another sum of Rs.17,892/- on 15/12/1997. The amount paid by the complainant to the opposite party is not disputed. It is the case of the complainant that, he had agreed to purchase flat in Block ‘E’, but the construction of the apartment in Block ‘G’ for higher price. As per the case of the complainant there was no chance of construction of flat even in Block ‘G’ by December-1999. Therefore, the complainant intended to cancel the agreement and sought for refund of the advance amount with interest. The opposite party almost accepted the case of the complainant and the opposite party is fair enough to come forward to refund the amount with interest. During the course of argument also the learned counsel for the opposite party has very rightly and fairly submitted that the opposite party will be having no objection in refunding the amount as prayed by the complainant. In the defense version also the opposite party has not taken any dispute or objections in respect of the refund of the amount claimed by the complainant. Since the complainant was not ready to take the flat in Block ‘G’ and he has cancelled the agreement of sale and sought for refund of the advance amount with interest is quite fair, just and reasonable. The request of the complainant shall have to be accepted and the opposite party shall be directed to pay the amount paid by the complainant with interest. The complainant has sought refund of the principle amount paid by him with 12% interest from 15/12/1997 to 31/5/2007. The interest claimed by the complainant is Rs.5,45,558/-. The rate of interest claimed by the complainant at 12% p.a is also quite just and fair. Therefore, the interest claimed by the complainant shall have to be accepted. The total amount claimed by the complainant towards his claim including principle and interest comes to Rs.10,26,224/-. The complainant has claimed interest at 12% from 1/6/2007 till realization. This has to be allowed. In the result, without much discussion the matter has to be disposed of since there is absolutely no dispute between the parties in respect of the amount claimed in the complaint. In the result, we proceed to pass the following:- <br /> <br /> ORDER<br /> <br /> 6. The complaint is allowed. The opposite party is directed to pay a sum of Rs.10,26,224/- to the complainant. The opposite party is directed to pay interest at 12% p.a on principle amount of Rs.4,80,666/- from 1/6/2007 till realization. The complainant is also entitled for cost of Rs.5,000/- towards costs of the present proceedings.<br /> <br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 8. Pronounced in the Open Forum on this 22ND DAY OF JANUARY 2008.<br /> Order accordingly,<br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br />