BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE:23rd July 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 121/2015
Complainant/s:
Uday S/o.Chidambar Rao Vijapur, Age: 46 years, Occ:Pvt. Service, R/o.Near Venkateshwar Temple, Saraswatpur, Dharwad – 2.
(By Sri.Rajendra.G.Adv.)
v/s
Respondent/s:
M/s. Swarna Bhoomi Properties, R/by its Managing Partner, Raju Nayyar, Age: Major, Occ:Managing Partner, At Sai Furniture Building, III Floor, Opp.K.C.Park, Near Sindhoor Hall, Haliyal Road, Dharwad – 8.
(By Sri.P.P.Joshi, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to refund earnest money of Rs.3,91,625/- with interest @20% P.A. from 15.11.2011 along with compensation of Rs.2.50 lakhs & to pay cost of the proceedings Rs.10,000/- and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant is a tax consultant. For his use he intend to purchase site. Hence, approached the respondent in the year 2011 & entered into sale agreement on 17.11.2011 to purchase plot no.52 in Sy.No.199 measuring 1205 sq.ft., for a total consideration of Rs.7,83,250/- and paid Rs.3,91,625/- under 2 cheques on 10.11.2011 for Rs.2,74,137/- and on 15.11.2011 for Rs.1,17,488/- under cheque no.612460 & 612461 respectively. Thereafter the respondent did not formed plots and delivered the plot to the complainant inspite of repeated requests and demands saying that, he could not execute sale deed showing towards Hubli Dharwad Urban Development Authority. Hence, again on 08.02.2014 fresh agreement was executed by the respondent in favour of complainant renewing the agreement dt.17.11.2011 undertaking to handover the plot, but not executed the sale deed. Hence, legal notice was issued on 05.11.2014 calling upon the respondent to refund the amount. Despite service of said notice on 07.11.2014 never care to comply or reply for it. In the month of November 2014 respondent called the complainant and undertakes to return the amount but not keep up the promise and went on postponing the same. Once again complainant got issued notice on 03.03.2015 calling upon to comply the notice. Despite service of notice on 04.03.2015 respondent never care nor replied or complied. Hence, complainant approached this Forum claiming for the relief as sought.
3. In response to the notice issued from this Forum the respondent appeared and filed the written version in detail denying and disputing the complaint averments. While the respondent admits entering into the agreement and payments made by complainant and report of the amount. While the respondent taken contention that at the instance of HDUDA he could not convert the lands and execute the sale deed as undertaken by him and he undertakes to refund the amount provided installments were given with interest @6% P.A. and ultimately prays for dismissal of the complaint stating that no deficiency in service on the part of respondent.
4. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondent ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit. Heard. Perused the records.
Finding on points is as under.
- Affiramtively
- Accordingly
- As per order
Reasons
Points 1 and 2
5. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, the parties have entered into agreement to sale & purchase N.A. site. Further there is no dispute with regard to payment of ernest money by complainant to the respondent.
6. Now the question to be determined is, whether the respondent has committed deficiency in service, if so, for what relief the complainant is entitled.
7. As per the own admission of the respondent it is evident that the respondent had received the amount from the complainant and not executed the sale deed as undertaken by him as per Ex.C3. Ex.C4 is the receipt for payment of the advance money & reported by the respondent. The contention of the respondent that at the instance of the HDUDA he could not develop the plot and delivered cannot be acceptable for the reason that it is the bounden duty of the respondent who undertakes to execute the sale deed after receiving the advance amount. Failure to execute the sale deed and hand over the possession as undertaken amounts to deficiency in service. However the respondent admits to refund the amount as such the complainant has established case of deficiency in service against respondent. On going through the documents relied by the complainant i.e. agreement and payment receipt and non execution of the sale deed as undertaken by respondent certainly the complainant had subjected to mental agony and also financial loss as he deprived of making use of the money. Under those circumstances respondent held responsible to return the amount with prevailing bank interest and also for payment of compensation and cost of the proceedings.
8. In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmatively and accordingly.
9. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
Order
Complaint is partly allowed. Respondent is directed to refund Rs.3,91,624/- with interest @ 9% P.A. from 15.11.2011 along with Rs.5,000/- towards compensation towards financial loss and mental agony and Rs.1,000/- towards cost of the proceedings within 60 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 23rd day of July 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
