Karnataka

Bidar

CC/68/2016

Smt. Knchanbai W/o Ratankumar Nandgowli Bidar - Complainant(s)

Versus

Smt. Badar sultana W/o Md. Afsar Khan Gadgi Bidar - Opp.Party(s)

P.M.Deshpande

25 Mar 2017

ORDER

 

 

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                         C.C.No. 68/2016

 

                                                                                          Date of filing : 14/09/2016

 

                                                                                       Date of disposal : 25/03/2017

 

 

 P R E S E N T:        (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                   (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

                                   

 

                                               

COMPLAINANT/S:   1.   Smt. Kanchanbai, W/o Ratan kumar

       Nandgowli, Age: 46 Years.

 

 2.  Sri. Ratankumar Nandgowli,

      S/o Late Ramchandra  Nandgowli,

      Age: 54 Years,  

      Both R/o Guru Nanak Colony,

      Bidar.

               

                                        

              

 

 

                                    ( By Shri. P.M.Deshpande, Advocate )

 

 

                                                    VERSUS

 

OPPONENT/S   :-    1. Smt. Badar Sultana,W/o Md.Afsar Khan Gadgi
                                    Age: Major,  

 

                                 2. Sri. Md. Afsar Khan Gadgi,S/o Md.Basheer Sab,

                                    Age: Major, Both R/o Maqdoomji Colony,

                                    Chidri Road, Bidar.

                                                                                                                                                                                                 

 

 

 

 

                                        

                                  (  By Shri. P.Upadhyaya, Advocate )

 

 

                                               

::   J U D G M E N T  ::

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

 

                    The complainants are before us invoking the jurisdiction u/s. 12 of Consumer Protection Act, 1986, alleging deficiency of service and unethical trade practice against the opponents.  The complaint averments in nutshell are as follows:-

2.            That, both the complainants are spouse, so also both the opponents.  The opponent No.1 was claiming herself to be the rightful owner of landed property bearing Municipal No.9-5-467/1 in an approved layout, forming part of Sy.No.110/B, situated at H.M.S. colony, Chidri, Bidar.  During the year 2012, the O.P.No.1, through her husband the O.P.No.2 was constructing a shopping complex therein, comprising of several shops in such complex.  The complainant No.2 (husband of complainant no.1) being a qualified Automobile Engineer, was in need of two such shop premises to relocate the family business for a sophisticated work shop for self employment.  A negotiation was held between both sides, and the opponents agreed to construct and sell two shops bearing Nos.31 and 31, admeasuring 15’X 16’ in such complex and consequentially, an agreement was reached among the parties.  (copy as Ex.P.1).

 

3.               That the price of such two shops agreed to be sold was fixed at Rs.8,50,000/- , out of which a sum of Rs.5,00,000/- was received by the opponents on such signing of the agreement.  (Receipt as Ex.P.2).  It was agreed among the parties that, a further sum of Rs.1,00,000/- would be payable by the complainants on completion of construction, consequent upon which a sale deed was agreed to be executed in favour of the complainants and possession was to be handed over.  The residue of balance sale consideration amounting to Rs.2,50,000/- was agreed to be paid within a reasonable period.

 

4.                  That, after entering in to the agreement, going ahead with the construction, the opponents put up the construction in a manner that, no four wheeler could be taken to the purported workshop of the complainants.  It was deliberately done by the opponents within their knowledge about the requirements of the complainants to thwart their business prospect, gaining profits from the investments of the complainants.  In the meantime, the opponents had collected extra funds from the complainants totalling in a sum of Rs.12,00,000/- towards the cost of the shops.

 

5.                     That, the complainants observing the progress of construction work, after certain extent, found that, the ingress and exgress to the purported shop No.31 and 32 has been unreasonably obstructed by erecting unnecessary stair case and took up the matter with the opponents.  The opponents in turn agreed to refund the amount of Rs.12,00,000/- received by them to annule the initial agreement at Ex.P.1. Resultantly, a second agreement was reached among the parties on 21.01.2014 to that effect ( Ex.P.4) and apropos to the terms of such 2^nd agreement, the opponents issued three cheques (Four lacs rupees each) bearing Nos.530230, 530231, 530232, of different dates.  All these three cheques were dishonoured on presentation for which, the complainant No.2 has instituted proceedings vide C.C.Nos. 48,397 and 398/2014 in the court of competent jurisdiction for such dishonour.  The complainants had also filed police complaint and opponents appearing before the police though had agreed to pay the amount as aforesaid have never acted upon the promises made.

 

6.                     Exasperated by the act of deceit, deficiency of service and unethical trade practices in the part of the opponents, the complainants are before this Forum, clamouring for relief(s)  against the opponents (a) to handover two shops in the shopping complex towards the main road measuring 15feetX16feet, or in the alternative(s) to pay back the amount of Rs.12,00,000/- together with interest @ 24% p.a. on such sum, as the opponents have utilised the complainant’s resources for commercial purposes, and have gained immensely.  The complainants have further prayed a compensation amount ofRs.5,00,000/- and litigation expenses to the tune of Rs.50,000/- among other relief(s) deemed proper by the court.

 

7.                     On receipt of notice, the opponents have put up appearances through a counsel of their choice on 14.10.2016.  The counsel concerned availing time on some or other pretexts did not file the versions till 02.12.2016, on which date it was taken as NIL.  The case was posted for complainant evidence to 06.12.2016.  On that day, there was no appearance from either side and the case was adjourned to 23.12.2016.

 

8.                     On 23.12.2016, the complainants led evidence by filing affidavit and submitting a ruling of the Hon’ble National Commission reported in 2016(3) CPR 317- Asthana Developers V/s Sardar  Sinha.            The opponents, filed versions along with an I.A. u/s 151 C.P.C., coupled by another I.A. u/s 5 of the Limitation Act to accept the versions.  The case got adjourned to 06.01.2017 for objections of the complainant to the I.A.  of opponents. 

 

9.                     On the said date, objections to the I.As. were filed and the case was posted to 10.01.2017 to hear on the I.As.  on the said date.   The I.As of opponents were allowed recording reasons, against a cost of Rs.1000/-.  The opponents counsel further on that day reported that, his clients were contemplating an out of court settlement.  The opponents’ counsel remaining absent thereafter, and not paying the cost levied, on 17.02.2017, the versions were expunged, and the case was adjourned to 25.02.2017 for arguments.  On the said date, the O.P.s counsel was absent and the complainants filed written arguments refering to the earlier case law submitted.  The case was posted for opponents argument to 03.03.2017 to give them a fair chance.

 

10.                   On such date, the opponents counsel appearing like a bolt from the blue started insisting to take the versions on record, which was declined, but chance was given to him to file written arguments against cost.  The opponents filed written arguments on 04.03.2017, defraying the cost. The complainants submitted to be taken as heard.

 

11.                   In the written arguments of the opponents disputing the signature of the opponents on the documents (agreements), canvass that, there was an oral agreement among the parties and the complainants had only paid a sum of Rs. 5,00,000/- and later had declined to purchase the shops and both sides had agreed to end the matter there itself.  The opponents further contend that, the complainants had agreed to extend hand loan and had asked for three blank cheques as security.  Afterwards without intimating the opponents, the opponents have got the cheque bounced and have initiated criminal proceedings under the provisions of the N.I. Act.  The opponents further claim that, no receipt was granted by them for the initial amount of Rs.5,00,000/- even.  The opponent have further claimed that, there is no relationship of consumer and supplier exist between the parties and hence provisions of C.P. Act, 1986 is not attracted.  Therefore, the opponents argue that, the complaint be dismissed against a compensatory cost of Rs.1,00,000/-.

 

12.                   The parties have been heard in length.  Only the complainant has filed document listed at the end of this order.  The judgement filed by the complainants reported in 2016(3) CPR 317 (NC) Asthana Developers V/s Sardar Sinha is of no relevance to this case as the opponents have raised no point regarding the non maintainability of the present case on account of the pendency of the N.I. Act. case.

                                                                                                                       

13.         Considering the contentions of the parties to the feud, the following points arise for our consideration:

 

 

1. Do the opponents prove that, the complainants are not consumers in the instant proceeding?

 

2. Do the complainants prove that, they have been victims of deficiency of service and unethical trade practice of the opponents?

 

 

3. What order ?

 

 

 

14.         Our answers to the points stated above are as follows:-

 

1. In the negative.
2. In the affirmative.
3.  As per the final orders, owing to the following:-

 

 

 

                                                                                                       :: REASONS ::

15. Point No.1. The opponents are vociferous that, there is no relationship of consumer and supplier among the parties and hence the provisions of the consumer Protection Act, 1986 cannot be invoked by the complainant.  Trying to consider the above point which is preliminary, we herewith extract first, the section 2 (1)(d)(ii) which is spelled out as follows:-

            Consumer means any person who-

[ hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person [but does not include a person wo avails of such services for any commercial purpose]

 

 

Further, section 2(1) (0) of the Act, defines service as   follows:-

“ service” means service of any description which is made available to potential [ users and includes, but not limited to, the provisions of ] facilities in connection with banking, financing, insurance, transport, processing supply of electrical or other energy, board or lodging or both, [ housing construction], entertainment, amusement or the purveying of news or other information, but does      not include the rendering of any service free of charge or under a contract of personal service;

 

 

16.                   In the instant case, as per part admission of opponents, they had received amount of Rs. 5 lacs (the complainant claim Rs.12,00,000/-) to construct shop premises over their land and sell them to the complainants, but the later declined such shops subsequently and the so called oral agreement came to an end.  No where the opponents plead that, the amount received by them was refunded to the satisfaction of the complainants.  Rather they assert that, three blank cheques were issued by them towards security of land loan.  This fact amply proves that, the complainants had abinitio paid amount of Rs.5,00,000/-  partly  promised to pay the rest in order to avail the services of the opponents on housing construction.  Hence, their arguments regarding non entitlement of the complainants hold no water and we answer the point in the negative.

 

17. Point No.2. Ex.P1 is the original agreement date. 11.02.2012 entered into by the 1^st complainant and 1^st opponent, agreeing sale and purchase shop Nos. 31 and 32 against a consideration amount of Rs.8,50,000/-, out of which Rs.5,00,000/- was paid instantly (Ex.P.2).  Further sum of Rs.1,00,000/- was agreed to be paid by the complainant on completion of construction and rest Rs.2,50,000/- within a reasonable period.  Ex.P.2 is the receipt executed by opponent No.1 on the even date.  Ex.P.3 is another money receipt executed by both opponents evidencing a further payment of Rs.1,11,000/-.  Total receipt of Rs.6,11,000/- is reflected in this document.  Ex.P.4 is an agreement dated 21.01.2014 executed by the opponent in para No.2 of page No.2 of which a mention has been made proposing the opponents to pay a sum of Rs.12,00,000/- towards part payments, damages for revoking the contract in favour of complainants.  The next para of this document describes issuance of three cheques (Rs.4,00,000/- each) of different dates by the opponent to liquidate their liability. Ex.P.5 is rough sketch map of the shopping complex wherein location of shops No.31 and 32 are seen to be in most awkward, in accessible position.  Ex.P.6,7 and 8 are photo copies of the cheques issued by the opponent and the same have been dishonoured on presentation.  Does any person in business would issues cheques acknowledging debt of Rs.12,00,000/- claiming actual receipt of Rs.5,00,000/-

 

18.                   In totality, it can be inferred that, the opponents had received money for housing construction and agreed to sell two shops to the complainants.  Subsequently acting deliberately, stair case was constructed, constricting the approach road to said shops i.e. 31 and 32 (Evident from Ex.P.5).  rendering such shops useless for the complainants’ requirement where from unethical trade practice is glaring at the face, because the motto of acquisition of shops for motor garage by the complainant was known to the O.Ps.  At a later stage, aptly, the complainants declined the shops and were promised refund of the part payment and damages amounting to Rs.12,00,000/- as would be evident from Ex.4 and Ex.P.6,P7 and P8.  All the cheques have been dishonoured on presentation. What better specimen can anyone have regarding deficiency of service in the part of a builder?

 

19.                   An almost similar situation had arisen before the Hon’ble Apex Court in the case reported in 2016(3) CPR 323 (SC) Bunga Daniel Babu V/s M/s Sri Vasydava cibstryctubis and others in which the Hon’ble Supreme Court has ruled in favour of the intending purchaser.  So also, the Hon’ble National Commission in another case reported in IV (2016) CPJ-546(NC) in Rajkumar Bhanda Kiran Kumar and others V/s Venkatesh in a similar predicament has ruled deficiency of service in the part of the builder.  Therefore, we answer the point No.2 in the affirmative and proceed to pass the following:-

 

  :: ORDER ::

   

1. The complaint is allowed in part.
2. The opponents are hereby directed jointly and severally to allot twin shops measuring 15’X16’ situated adjacent to MANNAKHELI ROAD.  Showing numbers 34 and 33- ,23, 22 and 21 (different segment) or 19 and 20 (different segment) to the complainants, execute this sale deed and put the later into possession of such premises.
3. Or in the alternative refund the complainants a sum of Rs.12,00,000/-(Twelve lacs only) agreed already together with interest @ 18% p.a. from the date of first agreement date.11.02.2012 till the date of realisation, since the funds of the complainants have been utilised by the opponents for business development.
4. The opponents are further directed to pay a sum of Rs.2,50,000/-  as compensation towards sufferings, mental agonies, deprival of usufruct of the complainants’ wealth, together with litigation expenses of Rs.20,000/-.
5. Four weeks time is granted to comply this order.

 

 

(Typed to our dictation then corrected, signed by us and then pronounced      in the open Forum on this 25^th  day of March-2017)

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.      

 

Documents produced by the complainants

1. Ex.P.1- Agreement dt.11.02.2012. (copy).
2. Ex.P.2- Money receipt of even, date(copy).
3. Ex.P.3- Second money receipt date. 19.11.2012.  
4. Ex.P.4-Second agreement date. 21.01.2014 revoking the earlier

             one (copy).

     5.  Ex.P.5- Sketch of shopping complex(copy).

6. Ex.P.6to 8- three cheques issued by opponents (copy).

 

Document produced by the Opponent/s

 

            Nil

 

 

 

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                      President.     

 

 

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