<br /> COMPLAINT FILED: 30.08.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 25th OCTOBER 2008<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.1930/2008<br /> <br /> <br /> <br /> COMPLAINANT Sri.Vijay Kumar Bidasaria,S/o Satyanarayan Bidasaria,Aged 54 years,Occ:Business, R/o “Gowri Sangam” 1st Floor,Vivekananda Hospital Road,Deshpande Nagar,Hubli – 580020.Advocate – Sri.C.V.Sheelvant V/s.<br /> OPPOSITE PARTY General Manager,PLATINUM CITY,C/o India Builders Corporation,Shariff Centre, 73/1,ST. Marks Road,Bangalore – 560001.Advocate – Sri.A.Sampath<br /> <br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to complete the construction of flat No.C/00/09 and hand over the possession of the same to the complainant on the payment already agreed upon and pay a compensation of Rs.25,000/- on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant booked two bed room flat in the project floated by the OP in the name and style “Platinum City” on 15.09.1996. The total cost of the said flat being Rs.12,19,904/-. After booking the flat complainant made the part payment to the tune of Rs.1,54,745/- on 17.10.1996. Thereafter though complainant was ready and willing to pay the remaining cost of the flat but there was no progress in the construction of the said block. That is why complainant stopped making payment of the amount in due. The repeated requests and demands made to the OP to complete the said construction and hand over the possession after receiving the balance in due went in futile. On the other hand OP arbitrarily intended to forfeit the amount paid by the complainant. Which is unjust and improper. As per the request made by the complainant, OP re-scheduled the payment of the amount in due. Thereafter also failed to complete the construction of the said block. On insistence OP came forward to allot flat No.G-005 in G block later on OP offered flat No.G/00/07 which is a single bed room flat. It is not acceptable to the complainant. OP instead of performing his part of contract made a claim of Rs.14,03,166/- with respect to the flat No.C/00/09. Though complainant is ready and willing to perform his part of contract OP failed to keep up his promise. Under the circumstances he was forced to cause demand notice and legal notice. There was no proper response. Though he invested his hard earned money he is unable to reap the fruits of investment. It is all because of the hostile attitude of the OP. Thus he felt unfair trade practice and deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the complaint is barred by time. The reliefs now claimed by the complainant come under the purview of specific relief, which this Forum can’t grant. Complainant violated the terms and conditions of the agreement. He was a chronic defaulter in making payment of the cost of the flat as per the schedule. OP sent several reminders and request to the complainant to pay the balance in due but he failed to do the same. The allegations of the complainant that C-009 was not at all constructed, there was no progress in the construction are false and frivolous because the said flat is situated in ground floor. OP invoked the terms and conditions of the contract and intended to forfeit what ever the amount that is paid. Out of humanitarian consideration it re-scheduled the payment at the request of the complainant by waving the interest. But still complainant failed to make payment. Under such circumstances OP is constrained to cancel the booking and sold the said flat No.C-00-09 to the prospective buyer. Then again at the request of the complainant, OP was ready to sell him G-005 but complainant again failed to make payment in due. Then OP offered flat No.G-007 towards the amount paid by the complainant plus the remaining balance, for that also complainant was not agreeable. So there is no deficiency in service on the part of the OP. The other allegations made by the complainant are all false and baseless. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant has booked a flat No.C-00-09 in the project floated by the OP in the name and style “PLATINUM CITY” on 15.09.1996 and paid a booking amount of Rs.1,00,000/- on 15.09.1996 and subsequent there to paid Rs.54,745/- to the OP. Of course OP has not disputed the said fact. It is also not at dispute that the total value of the said apartment being Rs.12,19,904/- that is at the rate of Rs.999/- per square feet. <br /> <br /> 7. Now it is the grievance of the complainant that though he made the initial payment as per the schedule there were no progress in the construction of the said block. That is why he stopped making payment of the balance installments. For this allegations actually there is no proof. Complainant has not corroborated this allegation. It appears it is an allegation for allegation sake may be to save his own fault in non payment of the other amount as per the payment schedule.<br /> <br /> <br /> 8. It is contended by the complainant that OP went to the extent of forfeiting amount paid by addressing letter dated 15.09.1981. Complainant approached the OP explained the reasons for the non payment of the installments and OP was pleased to cancel the forfeiture. Then asked the complainant to make the payment of the remaining amount as per the reschedule dated 21.09.1998. Thereafter also it appears complainant failed to make payment of the same.<br /> <br /> 9. OP made several requests and demands to the complainant to make payment as per the re-schedule. There was no response again. Hence OP is constrained to write letter to the complainant on 19.06.2001. Again re agitating that they are going to forfeit the amount paid as per the terms and conditions. It appears complainant again visited the OP had discussions and OP offered him flat No.G-005 later on G-007. As they have already sold out flat No.C-009 to the prospective buyer. It appears there aroused the difference between the complainant and the OP. When once the OP has received certain amount with regard to the allotment of the flat, it is not fair on the part of the OP to sell the said C-009 to the third party. In addition to that no document is produced by the OP to substantiate the said contention that it has already sold the said flat to the intending buyer. Here we find the deficiency in service.<br /> <br /> 10. We have gone through both the pleadings, evidence and the documents produced by litigating parties. Having taken note of the existing facts and circumstances as on today flat C-009 is not available at the disposal of the OP. There appears to be a novation earlier contract with respect to the flat No.C-009. Of course complainant has not opted to purchase flat No.G-005 or G/00/07. When that is so, it would have been more fair on the part of the OP to refund what ever the amount that is received by them from the complainant. <br /> <br /> 11. The steps taken by the OP in forfeiting the said amount again appears to be improper and not fair. Complainant invested his hard money to purchase flat, but unfortunately for one or the other reasons he is unable to reap the fruits of his investment. It is all because of the non co-operation and hostile attitude of OP. OP having retained the said huge amount for all these years without allotting a flat accrued wrongful gain to self thereby caused wrongful loss to the complainant. Here also we find the deficiency in service on the part of the OP.<br /> <br /> 12. Under such circumstances we find it is a fit case, wherein complainant is entitled for refund of whatever the amount he has paid to the OP. In our considered view complainant is not entitled for the relief of allotment of C/00/09 flat for the earlier price as prayed. Justice will be met by directing the OP to refund what ever the amount that is received from the complainant with some litigation cost. With these reasons we answer point Nos.1 & 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to refund Rs.1,54,745/- together with interest at the rate of 9% p.a from November 1996 till realization and pay a litigation cost of Rs.1,000/- to the complainant. <br /> This order is to be complied within four weeks from the date of its communication.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 25th day of October 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> Vln* <br />