Date of Filing:14.12.2007<br /> Date of Order: 25.04.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 25TH DAY OF APRIL 2008<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 /> <br /> <br /> COMPLAINT NO: 2501 OF 2007 <br /> <br /> Rakesh Aanchali,<br /> S/o Sampathraj Anchalia,<br /> R/at No. 6/8, I Cross,<br /> Lakshmi Road, Bangiappa Garden,<br /> Shanthinagar,<br /> Bangalore-560 027. Complainant<br /> <br /> V/S<br /> M/s M.M. Constructions,<br /> No.54, M.S. Lane,<br /> J.M. Road Cross,<br /> Bangalore-560 002,<br /> Represented by its Partner<br /> M. Chethan Kumar. Opposite Party<br /> <br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> The facts of the case are that, the opposite party being a developer in respect of the property bearing No.7, New Akkithimmanahalli Layout, Presently known as Nanjappa Road, Shanthinagar, Ward No.70, Bangalore, agreed to construct a residential apartment and accordingly they have issued a publication to the general public and in view of the same, complainant was interested to purchase the residential apartment to be constructed in the name and style as M.M. Kiran Apartments. The opposite party has agreed to sell the 3 bed room flat on the I floor of the M.M. Kiran Apartments to be constructed on the aforesaid property for a sale consideration of Rs.41,25,000/- in favour of the complainant and accordingly, the complainant has paid a sum of Rs.51,000/- as advance and opposite party has also issued a receipt dated 22/9/2005 for having received the said advance from the complainant and it is agreed that the remaining balance amount will be paid by installments. The complainant is and was all along ready and willing to make installment payments, however, in view of the opposite party request, the same being postponed for one or the other pretext and further as per the term of receipt of the opposite party, the complainant is entitled to the aforesaid apartment and however the opposite party started quoting fancy price every now and then in order to prevent the complainant from making any further payment on the pretext that the opposite party would receive one time settlement as and when the apartment is ready for occupation and the opposite party being a family friend of the complainant reposed great confidence and promised that the apartment would be delivered as and when it completes. The complainant further submits that the complainant even though ready and willing to pay the balance sale consideration at one shot payment and accordingly he has made personal approach and despite the same, the opposite party postponed the completion of sale in favour of the complainant without there being any valid cause or reasons. The complainant left with no option, inspected the apartments and came to know that in all respect, the building is ready for occupation and in spite of the same, the opposite party bent upon to appraise the complainant a false story in order to sell the said apartment in favour of the third parties. Even though the many reminders and personal approach made by the complainant resulted as futile exercise and the opposite party without there being any reason cause defaulted to perform their part of contract and the opposite party being a partnership concern, have failed to fulfill the obligation as agreed and thereby failed to give proper service and as such there is a deficiency of service by the opposite party and having regard to the same, the complainant left with no option, constrained to file the complaint.<br /> 2. Notice was issued to opposite parties by RPAD. Opposite party put in appearance through advocate and filed defense version stating that, the opposite party has agreed to sell the 3 bed room flat on the I floor of the M.M. Kiran apartments to be constructed in respect of the property bearing No.7, New Akkithimmanahalli Layout, presently known as Nanjappa Road, Shanthinagar, Ward No.70, Bangalore for a total sale consideration of Rs.41,25,000/- in favour of the complainant and accordingly, the complainant has paid a sum of Rs.51,000/- as the advance booking amount and the opposite party have also issued a receipt dated 22/9/2005 for having received the said advance amount from the complainant and it is agreed that the remaining balance amount will be paid by installments as and when the opposite party makes a demand for the balance amount subject progress of construction work are herby specifically denied as false. The opposite party has not agreed to sell a 3 bed room flat in the first floor to the complainant for a sale consideration of RS.41,25,000/-. The complainant had paid only a non refundable booking advance. It may be that the complainant had paid Rs.51,000/- on 22/9/2005 towards booking advance. He was required to pay an advance of Rs.6,18,750/- which is required for the commencement of construction. As the complainant did not pay the initial amount within the stipulated period the booking was cancelled. Although the booking amount was not liable to be refunded, the opposite party refunded the booking amount in a sum of Rs. 51,000/-. The complainant has suppressed this material fact. There was no agreement regarding sale of the flat in favour of the complainant. As such the question of agreement to receive the balance amount in installment is hereby denied as false. The allegations that the complainant was ready and willing to make the payment and the opposite party was delaying to receive the payment are all hereby expressly and specifically denied as false. The complainant at no point of time was ready and willing to make the balance payment towards the advance itself. The refusal of the opposite party in selling the aforesaid apartment in favour of the complainant, had resulted in issuing the legal notice are all uncalled for and made with ulterior motives. There is no agreement between the opposite party and the complainant to sell the said flat in favour of the complainant. As such the complaint is devoid of any merit. In view of all these reasons stated above, the opposite party prayed to dismiss the complaint.<br /> 3. Affidavit evidence of both the parties filed. Arguments heard. <br /> <br /> 4. The points for consideration are:-<br /> 1. Whether there was a deficiency in service on the <br /> part of the opposite party? <br /> <br /> 2. Whether the complainant is entitled to the deed of sale in respect of a flat at I floor of M.M. Kiran Apartment?<br /> <br /> <br /> <br /> REASONS<br /> <br /> 5. I have perused the complaint, documents and the defence version. It is the case of the complainant that, he has booked a flat. The total consideration amount of the flat was Rs.41,25,000/-. The complainant has paid Rs.51,000/- as advance booking amount. The opposite party has issued receipt on 22/9/2005 and it was agreed that the remaining balance amount shall have to be paid by installments. As per the document produced by the complainant himself i.e., a letter of opposite party dated 22/9/2005 a sum of Rs.5,57,750/- was to be paid by the complainant by 15/10/2005, but the complainant has not paid the amount as per the letter dated 22/9/2005. In another letter of the opposite party in the note, it has been stated as under:-<br /> “All payments to be made for, one week prior notice will be given. In vent of delay of payment, one week grace period will be given for delay beyond that, penalty of Rs.5,000/-(+) interest rate of 3% per month will be charged on the due amount. In event of non-payment for three months, booking will be assumed cancelled”. <br /> <br /> So, as per this letter of the opposite party it is clear that in the event of non-payment of the installment amount booking stand cancelled. Admittedly, the complainant has not paid any further amount except booking amount of Rs.51,000/- to the opposite party. From 22/9/2005 the date of payment of booking amount till filing of complaint before the Forum the complainant has not paid any amount to the opposite party to show that he was all along ready and willing to make the payments as per the agreement. In view of non-payment of the installment amount the booking stand cancelled. Therefore, the only remedy available now to the complainant is to get back his booking amount. As per letter of the opposite party it is stated that in the event of cancellation of the booking for whatsoever reason builder is liable to pay only booking amount. So, under this letter the complainant is entitled for the refund of the booking amount. The question of directing the opposite party to execute the sale deed in respect of three bed room flat does not arise at all. The complainant filed in the present nature cannot be entertained. The prayer of the complainant cannot be granted. It has been argued by the learned Advocate for the opposite party that amount of Rs.51,000/- was paid to the complainant through cheque dated 24/12/2005 drawn on the Canara Bank, drawn in favour of M/s Daya Jain wife of the complainant. Therefore, the learned Advocate for the opposite party argued that the question of refund of the booking amount also does not arise in this case. On the other hand, the learned Advocate for the complainant argued that the complainant has not received the booking amount. He submits that cheque had been issued in favour of wife of the complainant Smt. Daya Jain that may be in respect of her own transaction with the opposite party. All these things cannot be gone into in this complaint. The complainant has not sought any prayer in respect of refund of the booking amount of Rs.51,000/-. If at all there was any dispute in respect of refund of the booking amount, the matter requires to be settled or gone into by the Civil Court and not before this Forum. Therefore, it is not proper on our part to discuss about the refund or non-refund of the booking amount. That matter is kept open. As regards the prayer sought by the complainant the same is not maintainable since booking had been cancelled. The complaint therefore not maintainable. The complainant has not proved any deficiency in service on the part of the opposite party. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 6. The complaint is dismissed. No order as costs.<br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 8. Pronounced in the Open Forum on this 25TH DAY OF APRIL 2008.<br /> <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> <br /> <br /> <br />