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

DATED 29^TH DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  complaint has been  filed  against the  03 OPs to direct them to  pay Rs.80,35,136/- with interest at 10.5% P.A. and such other reliefs.

2.The case of the complainant in brief is as under:

The complainant approached OP-1 & 2 to purchase flat bearing no.B-206 for consideration amount of Rs.1,70,74,800/- and paid Rs.25,00,000/- advance money in the March-2016.

It is further case of the complainant that OP-1 & 2 have assured to deliver the flat within 06 months and accordingly, he approached OP-3 for loan. The OP-3 released Rs.35,00,000/- on 21.07.2016 to OP-1&2 without verifying the progress of the construction work. The OP-1 &2 fail to complete the work of the flat bearing no.B-206 and they have sold the flat to the 3^rd party for higher rate of in order to amass huge amount. The OP-3 has initiated crime no.359/2019  against the complainant as cheque issued by him was dishonored. There is  deficiency of service on the party of OP-1 & 2. The amount paid by him to the tune of Rs.60,00,000/- to OP-1 & 2 has been blocked. He is paying EMI and compoundable interest at 10.5% P.A. to OP-3. Hence, this complaint is filed.

3. In response to the  notice, OPs appear   and filed  separate  version. OP-1 & 2 admitted that complainant wanted to purchase flat bearing no.B-206 for consideration of Rs.1,70,74,800/- and paid Rs.25,00,000/- earnest money. They also admitted the release of Rs.35,00,000/- by OP-3 in favour of OP-1&2. The complainant fails to pay the balance amount. The complainant was defaulter and there is no deficiency of service on the part of OP 1 & 2.

4. OP-1 & 2 completed the flat no.B-206, but OP-3 failed to release balance amount. Despite repeated reminders, complainant failed to pay the balance amount. The OPs are nothing to do with  criminal action initiated by OP-3 against the complainant. They request to dismiss the complaint as complaint is barred by limitation.

5. OP-3 files version. OP-3 contends that there is no cause of action to file this complaint against OP-3. They have already initiated criminal proceedings against the complainant under SARFAESI Act and in view of the decision of Hon’ble National Commission this Commission has no jurisdiction.

6. OP-3 admits releasing of loan of Rs.35,00,000/-, but there is no deficiency of service on the part of the OP-3. OP-3 requests to dismiss the complaint .

7. The complainant filed her affidavit evidence and relies  on 07 documents. Even though affidavit evidence of partner of OP-1 is filed, but deponent was not further examined. The affidavit evidence of Sr.Manager of OP-3 has been filed and OP-3  relies on 05 documents.

8.          Heard the arguments. We  perused records.

9.  The following points arise for our consideration are as under:-

1. Whether the complainant proves deficiency in service on the part of the OPs?
2. Whether the complainant is entitled for the reliefs as mentioned in the complaint?
3. What order?

10. Our answer to the above points are as under:

       Point No.1 & 2:-Affirmative in part.

      Point no.3:-As per the final order.

REASONS

11. Point No.1&2:. The payment of Rs.25,00,000/- by the complainant to the OP-1 is not in dispute. The letter of OP-1 dt.19.04.2016 indicates that the OP-1 received Rs.25,00,000/- from the complainant through 07 cheques. It is also admitted  fact that OP-3 issued possession notice dt. 07.06.2019 to the complainant for non-payment of balance of Rs.41,19,976/-. Document A-3 is statement of account of the complainant  issued by OP-3. The document A-4 indicates that OP-3 issued notice to the complainant and co-obligant for payment of loan amount. It is admitted fact that out of sanctioned loan of Rs.80,00,000/-, OP-3 has released Rs.35,00,000/- on behalf of the complainant in favour of OP-1. The complainant got issued legal notice as per annexure A6 to OP-1 & 2, but no notice as issued against OP-3 before filing of this case. In response to the notice OP-1 & 2 issued reply as per annexure A7.

12. The complainant admits filing of cheque bounce case by OP-3 at CC No.359/2019, but she has not produced either copy of the complaint or order of the court. It means the complainant was aware that OP-3 has initiated criminal proceedings against her in the year 2019. OP-3 relied on certain documents, D-1 is loan agreement between the complainant, co-obligant and OP-3. OP-3 issued legal notice as per document R2 calling the complainant  and co-obligant to pay dues. Ultimately, OP-3 got published demand notice in Kannada and English Daily news paper. Ultimately, OP issued possession notice against the complainant. It is relevant to note that OP-3 initiated proceeding under SARFECI Act the provisions of C.Misc.No.2968/2019 on 1^st Add. ACMM, Bengaluru Criminal Mis.2968/2019 against the complainant in 1^st Add. ACMM  court was pleased to allow the petition to take possession. The complainant has suppressed this fact. The complainant has not approached this commission with clean hands.
     

13. Even though OP relys on judgment of Hon’ble National Commission reported in (II)2013 CPU 56, but detailed judgment is not furnished. But as per section 100 of C.P.Act, 2019 this commission is empowered to entertain the complaint. But there is no allegations of deficiency  of service against OP-3 either in the complaint nor in his affidavit. The deficiency of service against OP-3 not proved. The complainant proves deficiency of service on the part of OP-1&2. More ever, the OP-3 released large amount of Rs.35,00,000/- on behalf of complainant. The complainant seeks reliefs to direct the OPs to pay Rs.80,35,136/- inclusive of released bank loan of Rs.35,000/- interest there on. The complainant is entitled to interest on her money of Rs.25,00,000/- with interest at 9% p.a. as per decision of Hon’ble Supreme court of India reported in (II)(2022)CPR(1) in the matter between Experian Developers Pvt.Ltd., V/s Sushma Ashok Shiroor. Accordingly,  the complaint requires to be allowed in part against OP-1&2. The  OP-1& 2 are liable to refund Rs.25,00,000/- with interest at 9% P.A from 19.04.2016 till realization. The complaint requires to be dismissed against OP-3. OP-1 & 2 requires to comply this order within 60 days, failing which OP-1 & 2 are liable to  pay interest at 11% p.a. on Rs.25,00,000/- after expiry of 60 days.

14. Point no.3: In view of the discussions referred above, the complaint requires to be allowed in part against OP-1 & 2 only  The OP-1&2  are liable to refund Rs.25,00,000/- (Rs.Twenty five Lakhs Only) with interest at 9% P.A. from 19.04.2016 till realization and Rs.15,000/-(Rs.Fifteen Thousand only) towards cost of litigation. The complaint against OP-3 requires to be dismissed. Accordingly, we proceed to pass the following

O R D E R

1. Complaint is dismissed against OP-3.
2. The complaint is allowed in part against OP-1 &2.
3. The OP-1&2 s shall refund Rs.25,00,000/-(Rs.Twenty Five lakhs only) to the complainant with interest at 9% P.A. from 19.04.2016 till realization and pay  Rs.15,000/-(Rs.Fifteen Thousand only) towards cost of litigation.
4. The OP-1&2 shall comply this order within 60 days from this date, failing which OPs shall pay interest at 11% P.A. on Rs.25,00,000/- after expiry of 60 days till realization.
5. Furnish the copy of this order to both the parties and return extra pleadings with documents to the parties.  

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^th  day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite parties-1&2:

Documents produced by the representative of opposite parties-3: