COMPLAINT FILED ON: 26.11.2010

DISPOED ON:28.07.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

28^th Day of July- 2011

  PRESENT:-  SRI. B. S. REDDY                            PRESIDENT

                     SMT. M. YASHODHAMMA               MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER

COMPLAINT No.2665/2010

O R D E R S

SRI. B.S. REDDY, PRESIDENT

The complainant filed this complaint u/s 12 of the C.P. Act, 1986 through her husband as GPA Holder seeking direction against the Opposite Party (herein after called as O.P.) to pay sum of Rs.2,96,000/- as compensation for mental agony, loss of personal works and valuable time, etc and to award Rs.25,000/- towards cost of the proceedings with interest at 24% p.a. on the allegations of deficiency in service on the part of the OP.

2.      The case of the complainant to be stated in brief is that:

OP formed a layout in the name of Sri.Kalpatharu Housing Developers Private Limited in Survey No.114 and other lands of Gokare Village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District. Under the pre-selection list of sites, the complainant was one of the applicant, under pre-selection paid an amount of Rs.7,000/- to OP as initial payment and OP issued the receipts. The complainant demanded to allot a site No.267 i.e., corner site, the OP executed sale agreement on 03.01.2000. The initial agreement was executed on 27.12.1997 allotting site No.301 which was not a corner site. The complainant had paid an amount of Rs.54,000/- as monthly instalments. OP agreed to complete the Project within a period of 55 months from the date of opening the Scheme i.e.,14.06.1997, but has not formed the layout as per the brochure and not done the civic amenities. OP failed to provide necessary particulars of the said project including the title documents and other necessary requirements regarding approval of the layout from the Competent Authority. The complainant requested OP to provide particulars of the site and execute the sale deed. OP failed to provide the necessary documents, hence the complainant asked OP to refund the amount with interest. In spite of repeated requests OP did not make the payment and therefore the complainant filed complaint before Uppar Pet Police Station against the OP and the case was registered on 15.07.2009 under Crime No.0385/2009. Before the Police OP agreed for settlement with interest and damages and also paid the Principal amount of Rs.54,000/- by way of Demand Drafts and made payment of Rs.2,000/- in cash. OP has agreed to make payment of damages of Rs.54,000/- with interest on the rate of 24% pa. from the first payment dt.06.09.1996 to till the date of realization with costs and expenditure as listed by the complainant i.e., Rs.3,50,000/-. Out of that amount Rs.54,000/- was paid to the complainant on 14.11.2009 and assured to make the balance payment of Rs.2,96,000/-within one month orally. The complainant requested for payment of the said amount but OP deferred for payment with an intention to deny the rights of the complainant. Op has not paid the damages and agreed interest and other expenditure, hence committed deficiency of service. Hence, the complaint.

3. On appearance, OP filed version contending that OP has already refunded the sital value along with additional amount of Rs.2,000/- to the complainant as full and final settlement of her claim and hence, the complainant has no right to file the complaint, since she is not a consumer as per the provisions of CPA. The total cost of the 30 X 40 feet site is an amount of Rs.1,23,000/-, the complainant has paid only a part payment. It is admitted that the complainant has paid an amount of Rs.52,000/- in respect of the allotment of the site. It is denied that Op has not formed the layout. It is contended that upon completion of the layout OP has executed the sale deeds in favour of other several allottees who have paid the full sital value. The complainant is a defaulter in payment of the sital value. In spite of repeated demands made by the OP, the complainant has not paid the full sale consideration as per the terms and conditions of the agreement of sale. It is denied that the complainant demanded to provide necessary particulars of the said project including the title documents and other necessary requirements regarding approval of the layout and OP has not furnished the same. As per the terms and conditions of the application of the site, it is clearly mentioned that “the company reserve the right to cancel the membership in the event of member failing to remit the instalment amounts continuously for three months and the amount paid so for shall stand forfeited with out any notice” and being well aware of the said fact, the complainant is making all false allegations against OP. It is denied that OP failed to provide necessary documents, hence, the complainant asked for refund of the amount with interest. It is admitted that the complainant lodged complaint against OP before Uppar Pet Police Station and at the intervention of the Police and well-wishers OP was compelled to refund the amount of Rs.56,000/- to the complainant as a full and final settlement of her claims before the Police, subject to withdrawal the complaint and accordingly after receipt of the refund of the sital value from the OP, the complainant has withdrawn the complaint for having received refund of Rs.56,000/-. The complainant returned the pass book and receipts to the OP and undertaken to return original agreement of sale. It is denied that OP has agreed to make the payment of damages of Rs.54,000/- with interest at 24% p.a. from the first payment dt.06.09.1996, till date of realization with costs and expenditure as listed by the complainant i.e., Rs.3,50,000/- out of which Rs.54,000/- has been paid to the complainant on 14.11.2009 and assured to make balance payment of Rs.2,96,000/- to the complainant within one month orally. At no point of time, OP has given any oral assurance to the complainant. The complainant having received the sale consideration has no right to seek any relief under the provisions of CPA much less the damages against the OP. The complainant has not approached this Forum with clean hands. She has received Rs.56,000/- from the OP towards full and final settlement, she has no right to file the complaint. Hence, it is prayed to dismiss the complaint.

4.  In order to substantiate the complaint averments the complainant got filed affidavit her G.P.A., Holder. The Managing Director of OP filed affidavit evidence in support of defence version and produced documents.

5. Arguments on both sides heard. Points for consideration are:

                   Point No.1:- Whether the complainant proved the

                                      deficiency in service on the part of the

                                      OP?

Point No.2:- Whether the complainant is entitled for

                   the relief’s now claimed?

Point No.3:- To what Order?

6.We record over findings on the above points:

Point No.1:- negative.

Point No.2:- Negative. 

Point No.3:- As per final Order.

R E A S O N S

7.  The undisputed facts are the complainant was one of the applicant for purchase of the sites formed by OP in the layout called Sri.Kalpatharu Housing Developers (P) Limited in Sy.No.114 and other lands of Gokare Village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District. The complainant paid Rs.7,000/- as initial payment and OP executed agreement deed dt.27.12.1997 in respect of site No.301 which was not a corner site. The complainant after tendering payment demanded to allot a corner site bearing No.267 and OP agreed to allot the same and executed the sale agreement on 03.01.2000. The complainant claims that she paid in all the amount of Rs.54,000/- as monthly instalments. Further she claims that since the OP failed to complete the project within the stipulated period of 55 months from the date of opening the scheme i.e., 14.06.1997 and has not formed the layout with all civic amenities. The complainant demanded to refund the amount, but OP failed to refund the same. Further OP failed to execute the sale deed and furnish the required documents hence Police complaint was filed against OP in Uppar Pet Police Station; Bangalore, the case was registered against OP in Crime No.0835/2009. At that time, it is stated that OP agreed to make payment of damages of Rs.54,000/- with interest at the rate of 24% from the first payment dt.06.09.1996 to till date of realization with costs and expenditure in all Rs.3,50,000/-, out of which Rs.54,000/- was paid to the complainant on 14.11.2009 and OP assured to make the balance payment of Rs.2,96,000/- within one month orally. Thus, the complainant has received an amount of Rs.54,000/- from the OP and now she claims that the balance amount of Rs.2,96,000/- as orally agreed to be paid has not been paid by OP. Hence, there is deficiency of service on the part of the OP in not paying that amount of Rs.2,96,000/-.

7. It may be noted that the total cost of the site for which the complainant had entered into an agreement to purchase was Rs.1,23,000/- as per the agreement deed dt.03.01.2000. Out of the said total consideration, the complainant has paid only part of the amount of Rs.52,000/-. That amount of Rs.52,000/- was already refunded on 14.11.2009 through two demand drafts by OP along with additional amount of Rs.2,000/- in cash while the Police complaint was pending. OP has produced the copies of authority issued by the complainant in favour of her husband and also the receipt executed by her husband marked as document No.6, wherein her husband has received two DDs for a total amount of Rs.52,000/- and has also received additional amount of Rs.2,000/- from this OP. In document No.6 the husband of the complainant has clearly stated that there is no any amount due from the OP and after receiving the amounts the original pass book and receipts are returned to the OP, the same are produced before this Forum. When once the complainant has received the amount paid along with additional amount of Rs.2,000/- in full and final settlement of the claim, it is not open for her to claim any further sum relating to the same transaction. If at all, there was any agreement between the parties to pay further sum of Rs.2,96,000/- claimed in this complaint, there could have been some document evidencing in such terms of the agreement. The case of the complainant that orally, OP agreed to pay that much of amount cannot be accepted. After the parties settled the matter before the Police, the Police filed ‘B’ summary report and the complainant has not challenged the ‘B’ final report. Therefore, we are unable to accept the case of the complainant that OP has orally agreed to pay balance of amount of Rs.2,96,000/- and he has failed to pay the same. Only an amount of Rs.52,000/- paid in the monthly instalments by the complainant towards the cost of the site and the balance amount was also not paid. Because of the intervention of the Police and other well-wishers, OP has agreed to refund the amount of Rs.52,000/- along with additional amount of Rs.2,000/- and the complainant has already received that amount. Under these circumstances, we are of the view that there is no deficiency in service on the part of the OP. The complaint is devoid of merits, the same is liable to be dismissed. The complainant is not entitled for any relief’s claimed. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is dismissed.  Considering the nature of dispute no order as to costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 28^th day of July– 2011.)

MEMBER                        MEMBER                    PRESIDENT

Cs.