Date of filing : 13.01.2010<br /> Date of Order: 31.08.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 31ST DAY OF AUGUST 2010<br /> <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 /> COMPLAINT NO: 75 OF 2010<br /> <br /> 1) Sri Pardha Pothana,<br /> S/o Sri Pothana Seshagiri Rao,<br /> 2) Smt.Bhawani Pothana,<br /> W/o Sri Pardha Pothana,<br /> Both R/at No.172, Lakeshore Homes,<br /> Kasavanahalli, Sarjapur Road,<br /> Bangalore-35. Complainants<br /> <br /> <br /> COMPLAINT NO: 76 OF 2010<br /> <br /> 1) Sri Ravikiran Puvvala,<br /> S/o Sri P.Krishnanjaneyalu,<br /> 2) Smt. Radhika Mahankali,<br /> W/o Sri Ravikiran Puvvala,<br /> Both R/at No.112, Sharavanthi Comfort,<br /> J.P.Nagar II Phase, 20th Main,<br /> 2nd Cross, Bangalore-78.<br /> Rep. by their PA Holder,<br /> Sri P. Krishnanjaneyulu, Complainants<br /> <br /> COMPLAINT NO: 77 OF 2010<br /> <br /> Sri Srinivas Chinamilli,<br /> S/o Sri Chinnamilli Satyanarayana Rao,<br /> R/at Villa No.355,<br /> Adarsh Palm Meadows,<br /> Airport Whitefield Road, Ramagondanahalli,<br /> Bangalore- 66. Complainant<br /> V/S<br /> <br /> M/s. Skyline Construction & Housing Ltd.,<br /> No.11, Hayes Road,<br /> Bangalore-25.<br /> Rep. by its Director. Opposite party<br /> <br /> <br /> <br /> ORDER<br /> By the President Sri S.S. Nagarale<br /> <br /> These three complaints are clubbed together for passing common order since, the opposite parties in all the cases are one and the same and question of facts and law involved is also one and the same. Therefore, these six cases can be conveniently disposed off by passing common order. <br /> 1. The respective complainants have filed complaints under section 12 of the Consumer Protection Act. <br /> 2. The facts of the case are that the complainant in cc No.75/2010 have booked a flat with the opposite party and paid Rs.7,37,000/- through cheque, allotment letter dated 27-1-2007 is given to the complainants. A cheque for Rs.5,30,000/- and Rs.2,07,000/- dated 26-11-2006 was given to the opposite party. At the time of allotment it was promised by the opposite party the commencement of the project would take place during October/ November 2007. But, the project never took off. The opposite party went on promising that project would commence shortly. The opposite party went on postponing commencement of project. The promises turned out to be false. On account of this the hard earned money of the complainants has been blocked. The complainants have no other alternatives were constrained to request to the opposite party to cancel the booking. Legal notice was issued to the opposite party, to refund the amount along with interest. Therefore, the complainants have prayed that the opposite party be directed to refund Rs.7,37,000/- with interest at 21% p.a. along with compensation. The complainants in cc No.76/2010 have paid Rs.9,95,500/- towards booking of flat and this amount also paid by way of cheque dated 27-11-2006. The complainant in cc No.77/2010 also paid Rs.9,95,500/- to the opposite party towards booking of flat. This amount is also paid through cheque dated 29-11-2006. As regards other pleadings one and the same facts are pleaded as stated above. <br /> 3. The opposite party has filed identical defense version in all the cases. The opposite party in the defense version has admitted the payments made by the respective complainants. It is the case of the opposite party that complainants had only desired to invest their money with the opposite party owing to the fact that the opposite party is one of the top ranking builders in the city and is a profit making company. The opposite party issued an allotment letter only to acknowledge the investment money so paid by the complainants. The complainants are not consumer within the meaning of section 2(1)(d) of CP Act, 1986. There is no consumer dealer relationship between the parties. The complainants never intended to purchase and reside in the flats in the proposed apartments “Skyline Orange Country”. In fact they had invested in the project with sole intention to make profits. As regards cancellation it was open to the complainants to cancel the allotment as per the terms and conditions. The opposite party never provided in his service to the complainants and there is no deficiency of service on the part of the opposite party. Therefore, the opposite party has prayed to dismiss the complaints. <br /> 4. The respective parties have filed Affidavit evidence. The complainants have filed documents. The opposite party has not produced any documents. <br /> 5. Arguments are heard.<br /> 6. The points for consideration are:<br /> 1. Whether the complainants have proved deficiency of service on the part of opposite party?<br /> 2. Whether the complainants are entitled for refund of amount paid by them? <br /> 3. Whether the complainants are entitled for interest on the refund amount?<br /> 4. Whether the complainants are entitled for compensation?<br /> <br /> <br /> <br /> <br /> <br /> REASONS<br /> 7. The respective complainants have produced receipt passed by the opposite party. The complainants have also produced allotment letter of flat at Skyline Orange County, Bangalore. This allotment letter dated 27-1-2007. As regards payment made by the complainants for booking flat there is absolutely no dispute. The opposite party has fairly and rightly admitted in their defense version, the payments made by the respective complainants. The only objection taken by the opposite party is that the complainants have paid the amount by way of investment. Since, the opposite party is one of the top ranking builders in the city and profit making company. Therefore, the opposite party taken contention that the complainants are not consumers within the meaning of section 2(1)(d) of CP Act, 1986. On looking the documents, the receipts and allotment letter we are of the opinion that there is absolutely no merit and substance the defense taken by the opposite party. The opposite party has taken unsustainable defense. Such type of defense can not be accepted at all in the face of the documents produced by the complainants. The complainants have produced receipts passed by the opposite party. In all the receipts it has been stated “Advance payment received against flat at Skyline Orange country Project” located at Kanakapura Road, Bangalore”. Again the opposite party had issued allotment letter on 27-1-2007 signed by Mr.Dhiraj Prabhu Director of the opposite party company. In this allotment letter also they have mentioned the flat cost and amount for car park and they also stated “pleased to allot 2 BHK apartments etc.” This allotment letter is more than clear that the complainants have booked flat at Skyline Orange country project. Therefore, the opposite party can not be permitted to say that the complainants have invested the amount in their project. Therefore, they are not consumers. On the documents and facts of the case it is very much clear that the complainants are definitely consumers under the definition of consumer as defined in the CP Act, 1986. The complainants have stated that as per the promise and commitment of the opposite party the project never took off and the opposite party is postponing the matter for one pretext or other. The complainants were constrained to request the opposite party to cancel the booking of flat and requested to refund the amount with interest and compensation. As regards cancellation of booking the opposite party has no objection at all and it is stated in the version that it is open to the complainants to cancel the allotment and booking. When this is the case there is absolutely no any reason as to why the opposite party should not refund the amount received from the respective complainants. The complainants have got right and they are justified in asking refund of the amount with interest. The hard earned money of the complainant had been blocked without earning any profit. Had the amount being invested in the bank or in any financial institution the complainants could have earned interest or profit. Therefore, the complainants are justified in asking interest on the amount paid by them. The complainants have prayed for grant of compensation. These are not case to grant compensation. There is no reason to seek compensation. The complainants have not pleaded anything about mental agony or trauma suffered by them. Therefore, the complainants are not entitled for grant of compensation. The ends of justice will be met in ordering the opposite party to refund the amount to respective complainants with interest from the respective date of the receipt of the amount till the date of refund. The complainants have prayed grant of 21% interest p.a. I feel this rate is a higher side. On the facts of the case it would be just, fair and reasonable to grant 12% interest p.a. on the refund amount. In the result, I proceed to pass the following:<br /> ORDER<br /> 8. These three complaints are allowed. The opposite party is directed to refund Rs.7,37,000/- to complainants in cc No.75/2010. The opposite party is directed to refund Rs.9,95,500/- to the complainants in cc No.76/2010 and also Rs.9,95,500/- to the complainant in ccNo.77/2010. The respective complainants are entitled interest at 12% p.a. on the above amounts from the date of respective payments made by them till the date of refund / realization. <br /> 9. The respective complainants are entitled Rs.2,000/- as costs of the present proceeding from the opposite party. <br /> 10. Send the copy of this Order to both the parties free of costs immediately. <br /> 11. Keep the copy of the order in connected case files. <br /> 12. Pronounced in the Open Forum on this 31ST DAY OF AUGUST 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings <br /> <br /> <br /> MEMBER MEMBER<br /> <br />