IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> CC 294/09 DATED 03.11.2009<br /> ORDER<br /> <br /> Complainant Dr.H.V.Mandirkumar<br /> S/o Late H.Vasanthrajaiah, <br /> R/at Niranthara, No.109, 2nd Main, 4th Stage, T.K.Layout, Mysore City.<br /> (By Sri.A.S.Nataraj, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Jayaram Pathak, Managing Director, Pathak Constructions, Builders and Promoters, Reg. Office at 2997, 2nd Floor, Rukma Complex, Kalidasa Road, V.V.Mohalla, Mysore City.<br /> 2. Hari Pathak, S/o Jayaram Pathak, Director, Pathak Constructions, Builders and Promoters, Reg. Office at 2997, 2nd Floor, Rukma Complex, Kalidasa Road, V.V.Mohalla, Mysore City.<br /> (By Sri.K.M.S. Bhat, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 13.08.2009<br /> Date of appearance of O.P. : 01.09.2009<br /> Date of order : 03.11.2009<br /> Duration of Proceeding : 2 MONTHS 2 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint, seeking a direction to the opposite parties to refund Rs.1,00,000/- the booking cost of the flat with interest at the rate of 18% p.a. and damages of Rs.75,000/-.<br /> <br /> 2. Amongst other facts in the complaint, it is alleged that, the complainant believed the representation of the opposite parties and submitted an application for allotment of a ready to occupy vacant residential flat at Pratham Temple Bells, Flat S-1, 2nd Floor, on 01.12.2008. Complainant paid a sum of Rs.1,00,000/- to opposite parties the booking cost. Complainant collected copies of the documents from the opposite parties. On legal scrutiny, defect in the title of the flat was noticed. Complainant requested the opposite parties to obtain signature of the owner of the land to the sale deed. The opposite parties agreed. Thereafter, there was no response from the opposite parties. Later, complainant found that, the flat promised for allotment to the complainant had been already allotted to one Mr.Unnikirshnan, who in turn let out it. Coming to know of the fraud committed by the opposite parties, the complainant persuaded them to refund the amount. Complainant even wrote a letter to the opposite parties. There is breach of contract on the part of opposite parties. It is stated, opposite parties are liable to refund the said amount with damages amounting to Rs.75,000/- for Unfair Trade Practice and also mental agony etc.,<br /> <br /> 3. Opposite parties in the version, have contended that, there was an invitation to the offer and thereafter, agreement was to be entered into. The booking cost was non-refundable. The complainant was required to enter into an agreement by making down payment of Rs.20% of the total cost of the flat. But, the complainant did not turn up to have an agreement. Hence, complainant does not have any right to demand refund of the amount. It is contend that, efforts made by the opposite parties in contacting the complainant did not bring any desired result. As such, opposite parties had not alternative, but to let out the flat. On humanitarian grounds, and as a matter of goodwill, still opposite parties are ready to give complainant an option for any other flat and opposite parties are even ready to give same flat after getting the tenant vacated and to give the said flat after one quote of painting afresh. It is contend that, the complainant was supplied with copy of all documents before the amount was paid, and at the time, he did not raise any objection. It is contended that, there is no concluded contract. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. In support of their respective contentions, both the parties have filed their affidavits and produced certain documents. We have heard arguments of both the learned advocates for the complainant and opposite parties and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of opposite parties and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> <br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The fact that the complainant booked the flat with opposite parties and paid Rs.1,00,000/-, is admitted.<br /> <br /> 8. The complainant is seeking refund of the said amount, mainly on the ground that, after scrutiny of the documents in respect of the property, he noticed certain defects in the title. The complainant particularly alleges that, the opposite parties builders shall have execute sale deed, for which signature of the owner of the land is also necessary. Considering the facts, prima-facie case is made out, that the opposite parties are builders have built bulding or flats on the land owned by some other person. That fact is not disputed by the opposite parties. Hence, under the circumstances, claim of the complainant that, for transfer of valid title, signature of the land owner is also necessary, shall have to be accepted.<br /> <br /> 9. Though, the opposite parties have contended that, they are ready to execute sale deed or allot the site, it is not their contention that, they are ready to get the signature of the owner of the land to the sale deed to be executed. <br /> <br /> 10. In addition to it, the complainant further contend that after he booked the particular flat, the opposite parties sold it to one Mr.Unnikrishnan. The opposite parties have not specifically denied or disputed it. When the complainant has booked particular flat, the opposite parties without consent of the complainant ought not to have transferred the said flat to Mr.Unnikrishnan.<br /> <br /> 11. Advocate for the complainant submitted that, now, the complainant do not want second hand flat. Of course, the opposite parties have contended that, even they are ready to give the same flat to the complainant after one quote of painting afresh. Admittedly, a tenant is residing in the said flat. Under the circumstances, a person intended to purchase new house or flat, may not desire to have the same, which is already occupied by some other person.<br /> <br /> 12. It is contended by opposite parties that, there was only an invitation for offer and there was no concluded contract. So contending, according to the opposite parties, there was no concluded contract and as such, no breach has been committed by the opposite parties. Further, the opposite parties contend that, after paying the booking cost, the complainant did not turn up and the efforts from opposite parties did not bring any result. To show that, in fact, the opposite parties called upon the complainant either to pay the remaining amount or to execute an agreement, no cogent evidence for the opposite parties is placed on record. On the other hand, the complainant has all along contended that, he tried to contact the opposite parties, but, the office staff behaved in an irresponsible and negligent manner putting frivolous reasons and he got mobile phone number of the Managing Director and in spite of repeated callings, he did not get any reply. Under the circumstances, the contention of the opposite parties on the point, cannot be believed.<br /> <br /> 13. Advocate for the complainant has relied on the rulings reported in II (1998) CPJ page 8 and II (1995) CPJ page 43, so also, a news regarding the order of the Bangalore District Forum in Hindu dated 23.08.2009. Considering this legal position, we are of the considered opinion that, the complainant is entitled for refund of the booking cost. The contention of the opposite parties that, it is non-refundable, cannot be accepted, under the circumstances.<br /> <br /> 14. Accordingly we answer the point partly in affirmative.<br /> <br /> 15. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite parties jointly and severally are hereby directed to refund Rs.1,00,000/- to the complainant the booking cost along with interest at the rate of 18% p.a. from the date of payment, that is 01.12.2008 till realization of the entire amount within a month from the date of this order.<br /> 3. The opposite parties jointly and severally are hereby directed to pay a sum of Rs.10,000/- towards Unfair Trade Practice and also compensation regarding mental agony and inconvenience caused to the complainant, within a month from the date of this order.<br /> 4. The opposite parties to pay a sum of Rs.2,000/- to the complainant towards cost of the proceedings.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 3rd November 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />