Date of Filing: 19.11.2010
Date of Order: 11.02.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20
Dated: 11TH DAY OF FEBRUARY 2011
PRESENT
Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.
Smt. D. LEELAVATHI, M.A.LL.B, Member.
Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.
COMPLAINT NO: 2606 OF 2010
Giridhar L.
S/o. H.V. Lakshmi Narayana
No. 1267, 17th Main Road
5th ‘D’ Cross, Banashankari 1st Stage
Bangalore 560 050 Complainant
V/S
1. M/s. Yogakshema Builders and Developers
Represented by its Managing Partner
H. Parthasarathi
Off: “Sri Ranga Arcade”
No. 597, 1st Floor, Dr. Raj Kumar Road
Prakash Nagar, Bangalore 560 021
2. H. Parthasarathi
Managing Partner
M/s. Yogakshema Builders and Developers
Off: “Sri Ranga Arcade”
No. 597, 1st Floor, Dr. Raj Kumar Road
Prakash Nagar, Bangalore 560 021 Opposite Parties
ORDER
By the President Sri S.S. Nagarale
This is a complaint filed under section 12 of the Consumer Protection Act.
The facts of the case are that complainant has paid Rs.2,00,000/- through cheque to opposite party for allotment of site. Agreement of sale has been executed wherein the opposite parties are agreed that for any reason they fail to perform part of agreement they shall pay to the purchaser sum of Rs. 10,000/- in addition to the return of advance amount of Rs. 2,00,000/-. The complainant visited opposite party office several times and he was ready to pay balance amount of Rs. 2,00,000/- for getting registered site in his name. But, opposite party failed to perform his part of obligation. The opposite parties having failed to perform their obligation given two cheques one for Rs. 90,000/- and another for Rs. 1,10,000/- drawn on Corporation Bank in favour of complainant and had promised that he will pay Rs. 50,000/- as compensation to the complainant. Complainant presented cheques to the bank. But to his surprise two cheques were dishonoured for insufficient funds. The opposite parties have committed deficiency of service. Therefore, the complainant has prayed to direct the opposite parties to refund Rs.2,00,000/- + Rs. 10,000/- with interest.
2. The opposite party filed defence version. Almost all the facts of the case have been admitted in the defence version. The opposite party has clearly admitted receipt of Rs. 2,00,000/- from the complainant. Advance payment was taken to meet various expenses. Due to unforeseen circumstances layout was not formed and therefore, sale of sites was delayed. It is true that if there was failure on the part of opposite party he shall pay Rs. 10,000/- in addition to advance amount of Rs. 2,00,000/-. The complainant has filed criminal complaint under section 138 of NI Act against opposite party.
3. In view of admission of payment of advance amount by the opposite party filing of affidavit evidence by both parties have dispensed with.
4. Arguments are heard.
5. The points for consideration are:
1. Whether the opposite party has committed deficiency of service?
2. Whether the complainant is entitled for refund of Rs. 2,00,000/- + Rs. 10,000/- as per the agreement?
6. As per the pleadings of parties it is admitted fact that the complainant has paid Rs. 2,00,000/- as advance amount to opposite party by way of two cheques. This fact has been admitted by the opposite party in the defence version. The opposite party has executed agreement to sale in favour of the complainant. The said document has been produced. In the said document also it has been clearly admitted by the opposite party that sum of Rs. 2,00,000/- was received by him. In the agreement it has been stated that if the vendor for any reason fail to perform his part he will pay the purchaser sum of Rs. 10,000/- in addition shall return advance amount of Rs. 2,00,000/-. Admittedly, the opposite party has failed to perform his part of contract. Layout was not formed and site was not registered in the name of complainant inspite of requests and demands of the complainant. On the demand of the complainant to refund the amount opposite party had given cheques to the complainant. The cheques were presented to the bank for encashment. But the cheques were bounced for insufficient funds. This is very shocking and unfortunate. The opposite party has committed grave deficiency of service. Not only deficiency in service but in a way it had cheated the complainant. The complainant has rightly filed complaint before the Magistrate Court for the offence punishable under section 138 of NI Act. This fact itself goes to show that opposite party is not bonafide in its intention. The opposite party having received amount from the complainant failed to refund the amount. Therefore, the complainant was forced to file complaint before this forum for getting justice. The complainant is definitely entitled for an order in his favour. As per the document the complainant is entitled for refund of Rs. 2,00,000/- with Rs. 10,000/- and is also entitled for a reasonable, fair and just rate of interest on Rs. 2,00,000/- from the date of payment till payment / realisation. The opposite party having utilised the amount of the complainant for his benefit is bound to pay interest on the refund amount. In the result I proceed to pass the following:
ORDER
7. The complaint is allowed. The opposite parties No. 1 & 2 are directed to pay Rs. 2,10,000/- to the complainant. The complainant is also entitled for interest at 9% p.a. on Rs. 2,00,000/- from the date of payment till the date of refund / realisation.
8. The opposite parties are directed to comply the order within 45 days from the date of this order.
9. The complainant is also entitled for Rs. 3,000/- as cost of the present proceedings from the opposite parties.
10. Send the copy of this Order to both the parties free of costs immediately.
11. Pronounced in the Open Forum on this 11TH DAY OF FEBRUARY 2011.
Order accordingly,
PRESIDENT
We concur the above findings.
MEMBER MEMBER
