Date of Filing:17.11.2008<br /> Date of Order: 09.12.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 09TH DAY OF DECEMBER 2009<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: 2729 OF 2008<br /> <br /> Mary Verghese<br /> D/o. P.V. Verghese<br /> House No. P-103, 7th Main<br /> Sector 10, LIC Colony, HAL III Stage<br /> Bangalore 560 075<br /> Rep. by her GPA Holder<br /> P.V. Verghese<br /> S/o. Late P.I. Verghese Complainant<br /> V/S<br /> M/s. D K G Co.<br /> A Partnership Firm, having its Office<br /> at No. 1020/B, Githanjali Layout<br /> HAL III Stage, Bangalore 560 075<br /> Rep. by its Authorised Signatory<br /> And Managing Partner, Amit Goel Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act seeking direction against the opposite party to pay Rs. 4,74,771/- with 16% interest p.a.<br /> The facts of the case are that opposite party had agreed to sell the property for a sum of Rs. 34,76,250/- for which complainant agreed. Both the parties have entered into agreement of sale and also construction agreement. Complainant has made payment of Rs. 34,50,000/- to opposite party. The complainant stated that opposite party had received excess amount of Rs. 2,49,666/- which he is liable to refund. The complainant demanded for refund of the amount but opposite party refused to refund. Complainant also noted construction work carried out by the opposite party having deficiency. The complainant noted so many defects in the construction of the flat. Legal notices have been got issued to opposite party. Opposite party has sent reply. The complainant submitted that opposite party has no business to refuse payment. He is duty bound to pay the amount. Hence, the complaint.<br /> 2. The opposite party submitted defence version stating that there has been no deficiency in service. There was no obligation on the part of opposite party to refund cost of stamp paper and registration charges. The complainant took possession of the flat on 02.11.2007 and executed possession letter wherein the complainant has clearly stated that she has checked all the fittings and found same to be were in order. It nearly a year later the complainant first issued legal notice. The opposite party submitted that in view of payment being delayed by the complainant the opposite party demanded Rs. 1,20,000/- towards interest by 2 letters. Peeved by this complainant caused legal notice and has filed this present complaint. There is no deficiency of service. Therefore, the opposite party prayed to dismiss the complaint.<br /> 3. Affidavit evidence of respective parties are filed. Respective parties have also filed documents and written arguments.<br /> 4. The points for consideration are:<br /> 1. Whether the complaint is maintainable?<br /> 2. Whether the complainant is entitled for refund of Rs. 2,49,666/-?<br /> 3. Whether the complainant is entitled for orders for the amount spent by her towards rectification of defects?<br /> 4. Whether complainant is entitled for compensation?<br /> 5. The complainant in this case has admittedly taken sale deed of the flat from the opposite party. The complainant has paid Rs. 34,50,000/- to the opposite party on different dates. It is the case of the complainant that opposite party had received excess amount of Rs. 2,49,666/- which he is liable to refund to the complainant. The complainant has stated some defects in the construction of the flat and she has also sought certain amount by way of damages towards the defective construction. So under these circumstances we have to see whether the present complaint is maintainable before this fora. The Hon’ble Karnataka State Commission in a complaint No. 34/2009 has held that after execution of sale deed in favour of the complainant the question of issuing any direction to the opposite party does not arise. Remedy for the complainant is to approach the civil court for damages or for compensation on the ground of unfinished works etc. The Hon’ble State Commission in another case in complaint No. 3/2009, P.S. Sridhar Vs. M/s. Ittina Properties Pvt. Ltd. decided on 18.06.2009 has also held that since the opposite parties have already executed sale deed in favour of complainant in respect of apartment the question of issuing any direction to the opposite party to refund money does not arise and accordingly, complaint was dismissed reserving liberty to complainant to approach civil court. It is better to refer these two decisions:<br /> “ Complaint No. 34/2009<br /> Jagadish N.<br /> S/o. Narasimhachar N.<br /> R/at C/o. Tejesh N<br /> premier Gruhalakshmi Apartments<br /> S.M. Road, Jalahalli Cross<br /> Bangalore<br /> Rep. by his GPA Holder Mr. Tejesh N. Complainant<br /> <br /> 1. The Managing Director<br /> M/s. Ittina Properties Pvt. Ltd.<br /> No. 1054, 7th Main, III Block<br /> Koramangala, Bangalore 560034<br /> <br /> 2. I. Mahabaleshwarappa<br /> Kaikondrahalli<br /> Carlmelaram Post<br /> Bangalore 560 035 Respondent/s<br /> <br /> ORDER<br /> JUSTICE CHANDRASHEKARAIAH, PRESIDENT<br /> The complainant has filed this complaint seeking for a direction to the OP to refund the money paid by way of consideration and also for other reliefs.<br /> <br /> Admittedly, the OP has already executed a sale deed in favour of the complainant in respect of the Flat bearing No. S-210 in the 2nd floor of the Apartment known as ‘Ittina Padma’.<br /> <br /> When the OP has already executed the sale deed in favour of the complainant question of issuing any direction to the OP to refund the money does not arise. If at all if the OP has not completed the construction pursuant to the agreement if any between the parties the appropriate remedy for the complainant is to approach the civil court for damages or compensation on the ground of unfinished works because in a summary jurisdiction it may not be possible to record any finding on the said issue. Hence, we pass the following:<br /> <br /> ORDER<br /> <br /> Complaint is dismissed reserving liberty to the complainant to the complainant to approach the civil court if he is so advised.<br /> <br /> Member President ”<br /> <br /> <br /> “ Complaint No. 3/2009<br /> <br /> 1. P.S. Sridhar<br /> S/o. P.V. Swaminathan<br /> R/at D-4, Samhita Gardens<br /> 1st Cross, Kagadasapura<br /> C.V. Raman Nagar Post<br /> Bangalore 560 093<br /> V/s<br /> <br /> 1. M/s. Ittina Properties Pvt. Ltd.<br /> A company registered under Indian Companies Act, 1956<br /> having its Regd. Office at No. 1054<br /> 7th Main, 3rd Block, Koramangala<br /> Bangalore 560 034<br /> Rep. by its Director<br /> Mahabaleshwarappa<br /> and 5 others<br /> Order<br /> Smt. Rama Ananth : Member<br /> ---------------<br /> When the Ops have already executed the sale deed in favour of the complainant the question of issuing any direction to the Ops to refund the money does not arise.<br /> <br /> The facts and circumstances involved in this complaint is similar and identical to the facts and circumstances involved in Complaint No. 34/2009 which was disposed on 16.04.09 by this Commission. Following the said decision and for the reasons stated there-in this complaint is liable to be dismissed.<br /> <br /> Accordingly this complaint is dismissed reserving liberty to the complainant to approach the Civil Court if he is so advised.<br /> <br /> MEMBER MEMBER ”<br /> <br /> 6. The above two decisions of Hon’ble State Commission are directly applicable to the case of the present case. Therefore, it is wholly unnecessary and unwarranted to discuss the merits of the case since the complaint itself is not maintainable before this fora. Any discussion on the issue may prejudice the case of the complainant. Therefore, it is not proper and necessary to discuss the merits of the case in detail. The opposite party has also taken defence that complainant had given possession letter stating that possession of the flat was received and checked all the fittings, fixtures etc. and found same in order which dated 02.11.2007. The opposite party has also produced two letters dated 11.01.2008 and 08.05.2008. Under two letters the opposite party demanded the complainant for payment of Rs. 1,20,000/- towards interest for delay in payment. The complainant has filed this complaint before this fora in the month of November 2008 that means after receipt of letter from the opposite party demanding the interest. It is argued that present complaint has been filed as counter blast to the letters sent by the opposite party demanding payment. Any how all these matters will be sorted out and decided by the civil court in a properly instituted suit. Taking into consideration of all the facts and circumstances of the case and pleadings of parties the complaint is not maintainable. Therefore, the same deserves to be dismissed. In the result I proceed to pass the following:<br /> ORDER<br /> 7. The complaint is dismissed. No order as to costs.<br /> 8. Send the copy of this Order to both the parties free of costs immediately. <br /> 9. Pronounced in the Open Forum on this 09TH DAY OF DECEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />