O R D E R

SRI.D. KRISHNAPPA, PRESIDENT:

        The grievance of the complainant against the Op in brief is, that Op No.1 is the private limited company engaged in the business of promotion and construction of residential sites.   That he approached Op No.1 who introduced Op No.3 and 4 to him who are the GPA holders of Op No.2 offered to sell flat No.102 consisting of 900 sq. ft built up area in the basement floor at Chiallasandra Village along with 240 sq. ft of undivided share referred to in the B-Schedule property.  That the Ops entered into an agreement of sale with him on 11/05/2008 to sell flat number 102 for a total sale consideration of Rs.24,75,000/-.  That he has on 3 different dates paid Rs.2,65,000/- as advance money agreeing to pay the balance amount at a later stage.   Because of unforeseen developments, he could not secure housing loan therefore on 25/06/2008 informed Ops to cancel the agreement and to refund his advance money.   Despite issue of notice on 10/02/2009 Ops have not refunded his money.  That Op No.3 and 4 have already sold flat No.102 agreed to sold to him in favour of others but have not repaid the money and therefore has prayed for a direction to Op No.1, 3 and 4 to refund his money with interest @ 18% p.a and to award damages.

          2.  Op No.1 has appeared through his advocate and filed his version.  Ops No.2 and 4 are duly served with the notice but remained absent are set ex-parte.   Op No.1 has filed his version by contending that he is only a marketing agent doing business of promotion of sales of immovable land properties of others based on advertisement.  The complainant had approached him agreeing to purchase property of Op No.3 and 4 and entered into an agreement to purchase flat No.102 and has admitted that the complainant in all paid Rs.2,65,000/- as advance sale consideration of the flat.  But stated it is only Op No.3 and 4 who have entered into an agreement with the complainant and it is they have received advance sale consideration of the complainant by issuing receipts in the name of the first Op and stated that the money is paid to Op No.3 and 4 and not in favour of the first Op.   This Op further contending that he has not received any money from the complainant and it is only Op No.3 and 4 are liable to refund the complainant’s money has prayed for dismissal of the complaint against him.

          3.   In the course of enquiry into the complaint, the complainant has filed his affidavit evidence reproducing what he has stated in his complaint.   Op No.1 has filed his affidavit evidence.   The complainant along with the complaint has produced a copy of the agreement of sale with the Ops entered into with him, copies of receipts for having paid advance sale consideration.   Copy of legal notice he got issued and copies of letter he had addressed to the Ops for refund of his money.   We have heard the counsel for the complainant and perused the records.

          4. On the above contentions, following points for determination arise.

1. Whether the complainant proves that the Ops have caused deficiency in their service in not refunding his advance money?
2. To what relief the complainant is entitled to?

5. Our findings are as under:

Point No.1 : In the affirmative

Point No.2 : See the final order

REASONS

6. Answer on point No.1: As noticed from the complaint allegations and version filed by the Op.   Op No.1 is none other than the marketing agent of Ops No. 2 to 4 and that Op No.3 and 4 are the GPA holders of Op No.2.  On perusal of the contents of the agreement of sale and admission of Ops No.1, there is no dispute regarding the fact that Ops had entered into an agreement of sale with the complainant for selling flat No.102 as described in the schedule to the agreement for a total sale consideration of Rs.24,75,000/- and that the complainant as on the date of agreement had in all paid part of sale consideration amounting to Rs.2,65,000/- agreeing to pay the balance amount at various stages.   We also see the copies of receipts issued by Op No.1 after receipt of advance sale consideration.  Ops despite receipt of request by the complainant and legal notice had not responded to the request of the complainant for refund of his advance money.   Ops No. 2 to 4 had at no stage denied the claim of the complainant and have also not cared to appear before this forum and to oppose the claim of the complainant.   Considering the admission of Op No.1 and materials placed by the complainant before this forum, we concur that the complainant had paid Rs.2,65,000/- to the Ops towards the part of sale consideration for purchase of flat.

7.  It is the claim of the complainant that because of his inability to obtain housing loan he could not arrange the balance sale consideration.   Therefore sent a communication to the Ops on 25/06/2008 expressing his intention to cancel the agreement and requested the Ops to refund Rs.2,65,000/-.   1^st Op has not denied the receipt of this communication.   On perusal of the contents of the agreement of sale, a provision is made in it for cancellation of the agreement at the option of the complainant due to his inability and to demand for refund of advance money after deducting 25% of the advance money by way of liquidated damages for breach of agreement.   Therefore, the complainant under the terms of the agreement is entitled for refund of advance money subject to the condition.

8.  Op No.1 has contended that as if he is only a marketing agent, money is paid to Op No.3 and 4, he has not received any money therefore it is only those Ops are liable to refund the advance money paid.   This Op has not denied that receipts were issued by them that is in the receipts of first Op to the complainant for having received advance sale consideration.   1^st Op has not come forward to deny the receipt of money by them under these receipts.   Therefore, considering these uncontroverted documents and materials on record, the Ops are therefore jointly and severally liable to repay the advance money minus 25% as agreed under the agreement of sale.   Ops therefore have caused deficiency in their service in not honouring the claim of the complainant.  As such, we answer point No.1 in the affirmative and pass the following order.

O R  D  E  R

          Complaint is allowed in part.   Ops 1 to 4 are jointly and severally are held as liable to refund Rs.2,65,000/- (Rupees Two Lakh Sixty Five Thousand only) minus 25% of it to the complainant within 50 days from the date of this order with interest @ 15% p.a from 25/06/2008 i.e., from the date of demand till the date of repayment.

          Ops shall also pay cost of Rs.3,000/- (Rupees Three Thousand only) to the complainant.