BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 29^th January 2016          

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 284/2015    

Complainant/s:                       Nagaraj s/o. Sukhamani Bhurat, Age:58 years, Occ: Govt. Servant, R/o.Shukravar Peth, Joshi Galli, Dharwad.

(By Sri.C.C.Bhavikatti, Adv.)

v/s

Respondent/s:                         Naganagouda s/o. Shivanagouda Neeralagi, Age: Major, Occ: Managing Director, Shree Veerabhadreshwar Infrastracture & Housing Society, Saraswatpur, Dharwad.

                        (By Smt.S.M.Patil, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to refund Rs.1,87,700/- with 18% interest, to pay Rs.30,000/- towards compensation, to direct for payment of cost of the proceedings and to grant such other reliefs.   

Brief facts of the case are as under:

2.     The case of the complainant is that, the respondent has advertised in the year 2009 with regard to development of the plots and sale. Hence the complainant approached the respondent and agreed to purchase plot J/3 /4 /51 No.761 measuring 1200 sq. ft., for a total consideration of Rs.9,58,860/- payable on installments. Accordingly on 28.09.2009 complainant registered his membership by paying a sum of Rs.27,550/- by way of cheque no.409774. At the time of registration the respondent has assured to accord loan facilities to the complainant. Thereafter the respondent in the month of December 2009 sent house plan & the complainant accepted the same. Accordingly through letter dt.03.03.2010 & 31.03.2010 the respondent requested the complainant to pay installments in order to start construction work. At the request of the respondent the complainant on 07.07.2010 executed a construction agreement & on the same day the complainant paid Rs.1.44 lakhs through cheque 515436. Again the respondent by letter dt.04.10.2011 requested the complainant to do balance payment. The respondent by letter dt.04.11.2011 requested the complainant to pay consideration Rs.10,57,492/- instead of originally agreed total consideration of Rs.9,58,560/- stating that there is difference in the measurement hence to pay the additional charges. Again by letter 09.10.2012 the respondent requested the complainant to pay another installment. As per the said letter complainant paid another sum of Rs.14,640/- by cheque 515441. While paying the said amount the complainant submitted all the required papers and requested the respondent to make arrangement for loan. When the complainant visited the spot the respondent has not done any developmental works in the spot. So also when the complainant asked for make arrangement for loan the respondent reluctant to do make arrangement saying that it is not possible and to pay the balance amount by making self arrangement and told to take back all the papers. When the complainant finally approached the respondent the respondent told it is not possible to construct the house and the agreement has been cancelled and told the complainant to take back all the amounts paid. After cancellation of the agreement when the complainant approached respondent and requested to refund the amount the respondent postponed the same on one or other false assurances. Hence the complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments and puts the complainant to strict proof of the same. While the respondent admits the contract entered through agreement and receipt of the amount only to an extent of Rs.1,68,250/-by telling, out of it Rs.250/- will be towards application, Rs.2750/- will be towards registration expenses and contended  in all Rs.3,000/- is non refundable amount. Further the respondent contended an amount of Rs.14,620/- paid through cheque 515441 by the complainant was not accepted and not encashed as the complainant failed to pay the further payment of 35% towards cost of the construction as per the agreement. Since the complainant has changed the plan due to vastu the complainant executed additional modified agreement undertaking to pay additional fee in proportionate to additional payment for the modification made in the plan. The complainant at the time of agreement also agreed orally to make payments as per agreement either by bank loan or by his own arrangements, so only time is extended for the same. Since the complainant committed default in making payment liable to compensate the company as per Clause. 7 and 8 of the agreement. Since the contract has been breached at the instance of complainant, complainant is not entitled for any compensation or interest as claimed as there is no deficiency in service on the part of the respondent. Since the agreement has been cancelled at the 11^th hours without paying 2^nd installment the respondent required to sell the said plot to other party & realized the amount subject to deduction of Rs.50,000/- & 25% of total upto date cost of the construction as per the terms and conditions of the agreement. Since the respondent has spent amount on construction works and CC bedding & development of site the respondent himself suffered loss due to cancellation. Under those circumstances the respondent is not liable to refund the amount with interest and compensation as prayed as the respondent has not committed any deficiency in service as alleged and prays for dismissal of the complaint with exemplary cost.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit, relied on documents.  Heard. Perused the records.

Finding on points is as under.

1.  Affirmatively
2.  Accordingly  
3.  As per order

R E A S O N S

P O I N T S 1 & 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  that the complainant and respondent have entered into agreement of sale and purchase of plot to be developed by the respondent and in turn the respondent has received the part amount.

6.     Now the question to be determined is, whether the respondent has committed deficiency in service, if so, for what relief the complainant is entitled.

7.     Since the facts have been revealed in detail which requires no repetition.

8.     As discussed supra there is no dispute with regard to the sale and purchase agreement entered between the parties. Further also there is no dispute with regard to the fact that the agreement has been cancelled. Both in the pleadings and evidence the respondent had agreed to refund the amount but the contention of the respondent is that since the respondent has not committed any deficiency in service or unfair trade practice  he is not liable to pay penal interest and entire amount received by him contending that he had invested the amount and developed the plot by laying CC Bed and as he processed the developmental works he is entitled for application fee and registration fee which are not refundable. Further it is also the case of the respondent is that since the complainant failed to pay the installment towards 35% cost of the construction the cheque payment made Rs.14,620/- bearing no.515441 dt.12.01.2012 was not encashed and is laying and admits the receipt of the rest of the payments made. The respondent except making oral say that the cheque drawn for Rs.14,620/- under cheque no.515441 was not presented for encashment and laying the respondent did not produced that cheque in the present complaint except producing Xerox copy Ex.R5 of the same. But respondent has passed receipt for all the 3 payments as per Ex.C18 to C20 in total amounting to Rs.1,85,870/-. By the pleadings of the respondent coupled with evidence and agreement terms and conditions an amount of Rs.3,000/- out of the registration amount is not refundable as it was incurred towards processing charges.

9.     It is the case of the complainant that the complainant has paid the amount as agreed, even then as the respondent has not undertake development works the complainant did not paid the balance amount as agreed and it was not possible to him to do payment of remaining installment as the respondent did not arrange for avail loan facilities to the complainant as agreed by him. So, at the instance of respondent only the agreement has been cancelled. Hence he is entitled for entire amount along with compensation and cost of the proceedings.

10.   Even look into the correspondence Ex.C4 to C17 there is continuous correspondence in between complainant and respondent, but no record to show the respondent refunded the amount. Under those circumstances cause of action accrued and continuous to be accrued till entire amount to be refunded. Hence complainant is entitled for refund of the amount paid subject to deduction of Rs.3,000/- spent towards processing charges. Since the respondent did not produced original non encashed cheque Ex.R-5bearing no.515441 as contended by him and as the respondent has passed receipt for the said cheque amount as per Ex.C20 the respondent is liable to refund the said amount including the amount received under Ex.C18 & 19 with interest less: Rs.3000/-. Hence the complainant made out case against the respondent towards the deficiency in service. Accordingly complainant is entitled for the reliefs. Since refund is ordered with interest not entitled for compensation except cost.

11.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmatively and accordingly.

12.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        Complaint is partly allowed. The respondent is directed to refund Rs.1,82,870/- with interest @9% P.A. from the respective date of receipt of the amount under Ex.C18 to C20 along with Rs.1,000/- towards cost of the proceedings within 60 days from the date of receipt of copy of this order.   

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 29^th day of January 2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR