COMPLAINT FILED ON:29.09.2009

   DISPOSED ON:26.11.2011.

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

^{26th DAY OF NOVEMBER- 2011}

  PRESENT :-  SRI. B.S. REDDY                        PRESIDENT

                     SMT. M. YASHODHAMMA                 MEMBER                   

                     SRI.M.MUNIYAPPA                           MEMBER

       COMPLAINT NO. 2296/2009

O R D E R

SMT. M. YASHODHAMMA, MEMBER

          This is a Complaint filed by the Complainant U/S. 12 of Consumer Protection Act of 1986 by the complainants seeking direction against Opposite party (herein after called as O.P) to refund Rs.5,00,000/- paid towards advancae sale consideration together with interest at the rate of 18% p.a. from 15.11.2007 till the date of realization and to pay Rs.14,000/- towards travelling and telephone expenses and compensation of Rs.50,000/- on the allegations of deficiency in service.

    2.     The brief averments made in the complaint are as follows:

Complainant booked a flat apartment bearing No.102 with OP what is a registered partnership firm engaged in the business of promoting a residential cum commercial apartments in and around Bangalore. Complainant paid two cheque for a sum of Rs.2,50,000/- each dated 15.11.2007 and 13.12.07.  Totally complainant paid Rs.5,00,000/- advance to OP towards purchase of the said apartment in the project floated by the Op namely ‘Bharat Residency’ at Yeshwanthpur, Bangalore. After receipt of Rs.5,00,000/-.  OP informed the complainant that he will prepare an agreement of sale and construction agreement for flat No.102.  Later on OP got good offer for flat No.102 changed his version and offered flat No.103 instead of flat No.102, which was not suitable in any respect to the complainant. Hence complainant requested OP to refund the amount.  Complainant called OP several times and personally visited the office of OP at Malleshwaram.  Though OP initially agreed to refund failed to do so.  On 01.08.2009 OP with malafide intention sent a letter to the complainant stating he had enclosed a cheque No.405402 for sum of Rs.5,00,000/- drawn on UCO Bank, Malleshwaram Branch, Bangalore towards full and final settlement of the advance amount. OP has not enclosed any cheque along with the said letter. Further OP also mentioned that to present the said cheque only after obtaining written consent from the OP. when the cheque itself not enclosed question to obtaining consent does not arose. In spite of repeated requests and demands made by the complainants  when OP failed to refund the amount with interest and damages complainant got issued legal notice  dated  07.08.2009. In spite of receipt of notice there is no response from OP. Hence complainants felt deficiency in service against OP.  Under the circumstances they are advised to approach this Forum for the necessary relief’s.

3.     On appearance OP filed the version admitting the receipt of   advance amount of Rs.5,00,000/- towards booking of flat in the apartment put up by the OP under the name and style ‘Bharat Presidency’ at Yeshwanthpur.  The agreed rate at which flat to be sold to the complainant was at Rs.2575/- per Sq.ft. As the flat measurement  bring 1129 Sq.ft in area, sale consideration payable at Rs.33 lakh approximately which was inclusive of Car parking, statutory deposits and taxes; It is complainant who are responsible for their in consistent choices of flats.  Original inclination to buy flat No.102 was withdrawn when complainant expressed their wish to buy flat No.103.  In the mean while.  Again complainant shifted their choice to buy flat No.105.   OP denied allegation that it did not entered into an agreement of sale and agreement of construction and had agreed to refund the amount advanced to the complainant. The sum advanced cannot be considered as a refundable deposit under any circumstances same was to be adjusted towards the final sale consideration agreed upon by the complainant; The said agreement in fact handed over to the complainants in the month of December 2007 itself for their signatures. Complainants yet to return the agreement in question; OP is ready and willing to enter into agreement of sale coupled with a agreement for construction with the complainants; complainants never turned up to sign the said agreements in spite of repeated request; OP denied that complainants approached OP for refund of the said amount; If at all there was a breach of promise as alleged the proper course is to approach a Civil Court and this complaint is not maintainable; OP was ready with all the documents to complete the formalities including the execution of agreements when the complainants themselves are at fault and abstained without assigning any reason from signing the said documents for that OP cannot be held liable; OP had addressed a letter on 01.08.2009 enclosed a cheque for Rs.5,00,000/- UCO Bank, Malleshwaram Branch, Bangalore towards full and final settlement of the amount is a concocted one and it was not accompanied by the cheque in question and Op denied that it informed the complainant to present the cheque after obtaining written consent from them; Complainant in July 2009 did put forth before OP that they were not interested in the flat  they had booked; Complainant assigned some flimsy reason that the second of the complainant could not get through the deal in respect of the property alleged to be in her possession in her home town as such they were unable to pay for the flat; OP declined to do so as such withdraw was not possible in law at that particular point of time, nearly after a lapse of  1½ years as the project stood completed in all respects as back in the month of December 2007 and any disturbances in the financial status of the Op would definitely affect the construction, costs, financial implications and to replace the existing booking with another one would be impossible, Op banker i.e.,  Bank of Baroda, Yeshwanthpur Branch was pressurizing OP to repay the loan availed by them; In spite of several reminders complainant failed to sign the said agreement; In July 2008 complainant had approached OP regarding cancellation and refund of the advance amount and in this regard complainants informed OP that they will find suitable and alternate buyers in respect of the flat they had booked; OP would consider the refund after the payment received from alternate buyers; Complainant agreed to find a buyer only in this context. Op prepared a letter mentioning details of cheque for Rs.5,00,000/-, name of the buyer had not been made known to the OP at the time of preparation of the drafts, leading to the final agreement followed by payments to be made by said buyer, would prompt the OP to handover the cheque in question mentioned in the said letter, when OP enquired about the buyer the complainants replied that he would come over within half an hour; complainant on the pretext of having look at the text of the letter kept the letter with them and did not return the said letter to  OP; Complainant refused to return the letter to OP. OP never wrote and dispatched any letter. Hence handing over the cheque never arose; OP has exposed to huge financial losses; OP admits issuance of legal notice dt.07.08.2009 and contents of the notice were totally opposed to law and facts; Hence OP is not liable to comply with the demands contained therein, OP is not guilty of any form of deficiency in services as alleged; complaint is liable to be rejected on the ground of maintainability; Among other grounds OP prayed for the dismissal of the complaint.

4.     In order to substantiate the complaint averments complainant filed his affidavit evidence on behalf of himself and also on behalf of complainant No.2, who is his wife and produced the receipt dt.13.12.2007, copy of the cheque dt.15.11.2007, extract of the statement of account of the first complaint, letter issued by OP dt.01.08.2009, copy of the legal notice dt.07.08.2009. On behalf of OP R.Nagarjuna Rao, Partner of OP filed his affidavit evidence in support of the defence version and produced copies of the emails, draft copies of the construction agreement dated 17.11.2007 and copy of the agreement for sale dt.06.09.2006, fair copy of the agreement for sale and construction agreement dt.08.12.2007, emails and Electricity bills OP served interrogatories to the complainants same was answered by the complainant. Then complainants served interrogatories to OP same was answer by the OP. Complainant filed application under 0.6, R-17 C.P.C said application allowed on 09.02.2011. Complainants filed amended complaint.  Both complainants and OP filed additional affidavit evidence. Written arguments are submitted by OP. Then heard the oral arguments from both the sides.

5.     In view of the above said facts the points now that arise for our consideration in this complaint are as under;

               Point No.1:-  Whether the complainants

                                    proved the deficiency in service

    on the part of the OP?

Point No.2:-   If so, whether the complainants are

                     entitled for the reliefs now claimed?

      Point No.3:-  To what Order?

6. We have gone through the pleadings of the parties, both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:

Point No.1:- In Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

7. At the out set, it is not in dispute that the complainant booked a flata/apartment bearing No.102 with the OP who is a promoters and developers.  Complainants paid a sum of Rs.5,00,000/- to OP on 15.11.2007 and 13.12.2007 by way of two cheques for a sum of Rs.2,50,000/- each towards advance sale consideration for purchasing the said apartment in the project floated by the OP namely Bharath presidency at Yeshwanthpur, Bangalore.  The total cost of the flat being Rs.33,00,000/-.  To substantiate the said fact complainants have produced the receipts issued by OP dated 13/12/2007 and bank statement of account of the Ist complainant. Now the grievance of the complainants is that after booking is made OP did not entered into an agreement of sale and construction agreement.  OP agreed to refund the amount paid by the complainants in February 2008, itself but failed to refund the same.  Hence complainant are before this Forum.

8. As against the case of the complainants the defence of the OP that it does entered into an agreement of sale and construction agreement with the complainants.  We cannot accept this defence of the OP because the copies of the agreements  produced by the OP does not bear the signature of the complainants.  Further it is contended by OP that complainants never turned to sign the said agreements.  That the sum advanced cannot be considered as a refundable deposit and same was to be adjusted towards the final sale consideration as agreed upon by the complainant.  When complainants not signed the agreements the question of agreeing to the terms does not arise at all.  Further it is contended by the OP that the complainants were unable to arrange the funds to pay for the flats. There is no merit in this contention in para 23 of the answers to interrogatories,  Complainant have replied that both of them one working in the nationalized banks. 

9. During the course of answers to interrogatories it is stated by the complainants that they first visited apartment building on 4/11/2007.  They expressed their choice to purchase flat No.102, before handingover the Ist cheque for an amount of Rs.2,50,000/- to O.P.  The receipt issued by OP does not bear the flat number it is only a oral contract.  At no point of time complainants requested for to replace the flat.  Email was received on 20/11/2007 but there was no attachment, same was informed to the OP by reply mail on 20/11/2007 itself.  No email was received by the complainant afterwards complainant denied that they have chosen flat No.105 at Bharath presidency.  Since complainants never received or looked into the agreement, the question of forfeiture  does not arise.  At no point of time it was agreed that the balance sale consideration will be paid on 31/12/2007 but agreed to be payable on the day of Registration.  One Mr.K.M.Basavarajappa offered higher rate.  Hence OP entered into agreement with K.M.Basavarajappa and insisted the complainants to purchase any other flat other than flat No.102.  Complainants answered in negative to the question that they were not able to secure the home loan as both of the complainant are working in nationalized banks.  Complainants  never informed OP that they will find alternative buyers in respect of flat No.105.  OP issued a cheque with the condition, if he get money from his financier, Complainants can deposit the cheque after confirmation from P. Since cheque did not bear the date complainant insisted for a D.D.  Hence OP taken back the cheque with a promise to issue a D.D. OP handed over the letter dated 1/8/2009 to the complainant on 28/7/2009.  The said letter is a proof of readiness to refund the amount. Inspite of the letter OP failed to refund the advance amount.  Complainants requested OP to have agreements, as the interior of the flat No.102 was not ready, OP informed that they will finish the flat when once it is ready for occupation they will execute the sale deed.  OP sold flat No.102 for higher price there by agreed to return the advance amount to the complainants.  

10.Further defence of the OP that withdrawal was not possible after 1½  years because the project was completed in all respects.  To substantiate the said contention.  OP has failed to produce relevant documents.  The electric bills produced by OP is not sufficient to establish the fact that the project was complete in all respects.  In answer No.47 to interrogatories.  Complainant denied the fact that interior of the flat No.102 was ready OP promised to execute the sale deed when once the work is finished and ready for occupation.  OP admits preparation of the letter dated. 1/8/2009 at the instance of the Complainant, the complainant refused to return the same, but same is denied by the complainant.  In answer No.27 of the complainant it is stated by the complainant that OP issued a cheque with a condition if OP gets money from his financiers complainants can deposit the cheque after confirmation from OP.  The cheque did not bear the date hence complainants insisted for a D.D.  OP taken back the cheque with a promise to issue a D.D.  Hence letter remained with the complainants.

11. In the addional affidavit OP admits that he went to complainant residence on 01.08.2009 and made out a letter mentioning the details of the cheque.   OP admits Rs.5,00,000/- paid by the complainant towards advance sale consideration.

    12.   OP Having received Rs.5,00,000/- towards advance sale consideration amount without refunding the same even after repeated requests and demands accrued wrongful gain to itself there by caused wrongful loss to the complainant that too for no fault of them.  The letter dated 1/8/2009 discloses that cheque drawn towards full and final settlement of advance amount received against the flat and same shall be presented  to the bank only after,   Written consent from the OPs., So for so good OP has not taken any steps to refund the advance amount to show its bonafides.  So the defence set out by the OP appears to be defence for defence sake.  Complainant though invested their hard-earned money they are unable to reap the fruits of their investment.  On the other hand OP having retained the said huge amount for almost four years illegally enriched by itself.  When that is so, arbitrarily contending that advance amount is not refundable amounts to unjust and improper and it is  a  classic  example of deficiency in service. Hence, we are of the considered view that complainant is entitled for refund of only Rs.5,00,000/- along with interest at the rate of 12% p.a. as compensation and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is allowed in part.

OP is directed to refund Rs.5,00,000/- together with interest at the rate of 12% p.a. from the date of respective payments till the date of realization and pay  litigation costs of Rs.2,000/- to the complainant.

This order is to be complied within four weeks from the date of its communication.

Send the copy of this order to both the parties free of cost.

(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 26^th day of November-2011.)

MEMBER                        MEMBER                  PRESIDENT

RK.