Date of Order: 25.09.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 25TH DAY OF SEPTEMBER 2010<br /> PRESENT<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 /> COMPLAINT NO.: 935 OF 2010<br /> Date of filing : 23.04.2010<br /> Sri Raghavendra.M.<br /> S/o Sri V. Mahananda<br /> No.51, 11th A Main<br /> 13th Cross, 4th T Block<br /> Jayanagar, Bangalore 560 041 Complainant<br /> <br /> COMPLAINT NO.: 936 OF 2010<br /> Date of filing : 23.04.2010<br /> Smt. Vrinda M<br /> W/o Sri Mahananda<br /> No.51, 11th A Main<br /> 13th Cross, 4th T Block<br /> Jayanagar, Bangalore 560 041 Complainant<br /> <br /> COMPLAINT NO.: 937 OF 2010<br /> Date of filing : 23.04.2010<br /> Sri V. Mahananda<br /> S/o Late Angadi Veeranna<br /> No.51, 11th A Main, 13th Cross<br /> 4th T Block, Jayanagar, Bangalore 560 041 Complainant<br /> <br /> COMPLAINT NO.: 938 OF 2010<br /> Date of filing : 23.04.2010<br /> Sri Appasaheb K. Bhatte<br /> S/o Kallappa<br /> E-1, Alisda Residential Complex<br /> R.T. Nagar, Bangalore 560 032 Complainant<br /> <br /> COMPLAINT NO.: 939 OF 2010<br /> Date of filing : 23.04.2010<br /> Sri Deepak Kumar Mujumdar <br /> S/o Late Dhirendranath Mujumdar <br /> No. 859/A, Coconut Garden<br /> 4th Cross, T. Dasarahalli<br /> Bangalore 560 057 Complainant<br /> <br /> COMPLAINT NO.: 940 OF 2010<br /> Date of filing : 23.04.2010<br /> Mrs. Tuhina Bhattacharjee <br /> W/o Prosanath Bhattacharjee <br /> No. 1069, 11th Main, West of Chord Road<br /> Mahalakshmi Puram, Bangalore 560 086 Complainant<br /> <br /> COMPLAINT NO.: 941 OF 2010<br /> Date of filing : 23.04.2010<br /> Sri Lalpati Yadav <br /> S/o Sri Bishvanath Yadav<br /> No.50, 4th Cross, Gundappa Layout<br /> Byrasandra, C.V. Raman Nagar<br /> Bangalore 560 093 Complainant<br /> <br /> COMPLAINT NO.: 949 OF 2010<br /> Date of filing : 23.04.2010<br /> Miss Soujanya Walke <br /> D/o Sri Appasaheb Maruti Walke<br /> No.230, 1st Floor, 2nd Cross<br /> 3rd Main, Cambridge Layout<br /> Ulsoor, Bangalore 560 008 Complainant<br /> <br /> COMPLAINT NO.: 950 OF 2010<br /> Date of filing : 23.04.2010<br /> Sri V. Mahananda <br /> S/o late Angadi Veeranna<br /> No. 51, 11th A Main, 13th Cross<br /> 4th T Block, Jayanagar<br /> Bangalore 560 041 Complainant<br /> <br /> COMPLAINT NO.: 1045 OF 2010<br /> Date of filing : 10.05.2010<br /> Sri Naseeruddin N <br /> S/o Nazeeruddin<br /> No.29, 2nd Main, Railway Layout<br /> Pillanna Garden, 3rd Stage<br /> Bangalore 560 045 Complainant<br /> COMPLAINT NO.: 1046 OF 2010<br /> Date of filing : 10.05.2010<br /> Smt. Ismat Hazeen <br /> W/o S.A. Hameed<br /> Frontline Woods Apartment<br /> 1st Floor, No.102, 7th Cross<br /> Nanjappa Gardens, BSPL Kalyan Nagar<br /> Bangalore 560 043 Complainant<br /> <br /> COMPLAINT NO.: 1047 OF 2010<br /> Date of filing : 10.05.2010<br /> Sri S. Murali<br /> S/o Sri R. Simhadri<br /> No.2/1, New No.11, Simhadri Mansion<br /> Ramakrishnappa Road, Cox Town<br /> Bangalore 560 005 Complainant<br /> <br /> COMPLAINT NO.: 1048 OF 2010<br /> Date of filing : 10.05.2010<br /> Miss Tushaara Murali <br /> D/o Sri S.Murali<br /> No.2/1, New No.11, Simhadri Mansion<br /> Ramakrishnappa Road, Cox Town<br /> Bangalore 560 005 Complainant<br /> <br /> COMPLAINT NO.: 1049 OF 2010<br /> Date of filing : 10.05.2010<br /> Smt. M.C. Sudhamani <br /> W/o Mr. S.Murali<br /> No.2/1, New No.11, Simhadri Mansion<br /> Ramakrishnappa Road, Cox Town<br /> Bangalore 560 005 Complainant<br /> <br /> COMPLAINT NO.: 1050 OF 2010<br /> Date of filing : 10.05.2010<br /> Sri Raghu Ramachandraiah<br /> S/o Sri Ramachandraiah<br /> No.54, 3rd Main, Dattatreya Nagar<br /> Hosakerehalli, BSK 3rd Stage<br /> Bangalore 560 085<br /> Rep. by his PA Holder <br /> Smt. J.H. Geetha<br /> W/o. A.N. Nagesh<br /> NO. 12, 8th Main, 2nd Phase<br /> 4th Block, BSK 3rd Stage<br /> Bangalore 560 085 Complainant<br /> COMPLAINT NO.: 1051 OF 2010<br /> Date of filing : 10.05.2010<br /> <br /> Miss Shabana Begum <br /> D/o A Basheer Hussain<br /> No. 22 Q, 3rd Street<br /> Makan Road Cross<br /> Bharathi Nagar, Bangalore 560 001 Complainant<br /> <br /> COMPLAINT NO.: 1354 OF 2010<br /> Date of filing : 16.06.2010<br /> <br /> 1. Mr. Taufeeque<br /> S/o. Anwarlal Huque<br /> 2. Mrs. Kashfa Nazli<br /> W/o. Taufeeque<br /> No.29, 1st Floor, 2nd Cross<br /> 2nd Main, JHBCS Layout<br /> Bangalore-560 078 Complainant<br /> <br /> COMPLAINT NO.: 1355 OF 2010<br /> Date of filing : 16.06.2010<br /> <br /> 1. Sri P.L. Nambiar<br /> S/o. M.T.G. Nambiar<br /> 2. Sri Siddharth Nambiar<br /> S/o. P.L. Nambiar <br /> 480, Remya, M.M. layout<br /> Kaval Byrasandra, R.T.Nagar<br /> Bangalore 560 032 Complainant<br /> <br /> COMPLAINT NO.: 1356 OF 2010<br /> Date of filing : 16.06.2010<br /> <br /> Sri P. Abhilash Prabhakar <br /> S/o Sri P. Prabhakar Rao<br /> No.25, Saraswati Nilaya, 8th Main<br /> 17th Cross, Bandappa Garden<br /> Mutyala Nagar, Bangalore Complainant<br /> <br /> COMPLAINT NO.: 1357 OF 2010<br /> Date of filing : 16.06.2010<br /> <br /> Sri B.C. Ashok Kumar <br /> S/o B.C.R. Iyangar<br /> No.21, CQAL Layout<br /> Sahakarnagr, Bangalore 560 092 Complainant<br /> COMPLAINT NO.: 1358 OF 2010<br /> Date of filing : 16.06.2010<br /> Sri Nagaraja G<br /> S/o Gurunathachari V.B. <br /> No.18, 1st Floor, Swarnambha Nilaya<br /> Behind SBI ATM Counter<br /> Yelahanka, Bangalore-64 Complainant<br /> V/S<br /> Vijay Tata Ravipathi<br /> Proprietor of M/s. Orange<br /> Construction & Infrastructure<br /> having its registered office at<br /> 114/1, Outer Ring Road<br /> Vijaya Bank Colony<br /> Dodda Banaswadi<br /> Bangalore 560 043 Opposite party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> These twenty one complaints are clubbed together for passing common order since the opposite party in all the complaints is one and the same and the question of law and facts involved are one and the same. Therefore, these 21 complaints have been clubbed together for passing common order. <br /> The payment made by the respective complainants to the opposite party towards booking amount of flat is shown in the below schedule:<br /> Sl. No. Complaint No. Amount Paid<br /> (in Rupees)<br /> 1. CC/935/2010 2,00,000/-<br /> 2. CC/936/2010 4,00,000/-<br /> 3. CC/937/2010 4,92,000/-<br /> 4. CC/938/2010 2,42,820/-<br /> 5. CC/939/2010 2,89,947/-<br /> 6. CC/940/2010 1,60,000/-<br /> 7. CC/941/2010 3,00,000/-<br /> 8. CC/949/2010 2,90,313/-<br /> 9. CC/950/2010 3,28,000/-<br /> 10. CC/1045/2010 1,50,000/-<br /> 11. CC/1046/2010 1,60,000/-<br /> 12. CC/1047/2010 1,60,000/-<br /> 13. CC/1048/2010 1,60,000/-<br /> 14. CC/1049/2010 1,60,000/-<br /> 15. CC/1050/2010 1,50,000/-<br /> 16. CC/1051/2010 1,50,000/-<br /> 17. CC/1354/2010 3,21,030/-<br /> 18. CC/1355/2010 2,77,936/-<br /> 19. CC/1356/2010 2,90,313/-<br /> 20. CC/1357/2010 1,60,000/-<br /> 21. CC/1358/2010 1,50,000/-<br /> <br /> It is the case of the complainants that they have entered into agreement with the opposite party and the opposite party had agreed to complete the project and construction of building within 18 months from the date of approval of the plan from the competent authority and had agreed to deliver the possession of the flats within 24 months to the respective complainants. The opposite party had also agreed for payment of rental premium to the complainants per month. The complainants requested the opposite party to adhere to the terms and conditions of the agreement entered into between the parties. The opposite party declared that he cannot pay the premium and also the project is not completed. The opposite party had given cheques towards rental premiums to the complainants. But the said cheques were dishonoured by the bank for insufficient funds. Since, the opposite party failed to pay the premium and the project was not under taken and construction activity is not taken place the complainants conveyed that they will surrender the flats and requested to return the advance amount paid. But, unfortunately, the opposite party was absconding for a considerable period from Bangalore and complainants were unable to trace about the whereabouts of the opposite party. The complainants further submitted that opposite party has cheated several persons. The fraud committed by the opposite party has come to the notice of complainants, therefore, the complainants lodged a police complaint and FIR was registered punishable under section 406, 408 and 420 IPC against opposite party. The opposite party approached the Hon’ble High Court of Karnataka to quash the criminal case registered against him. The Hon’ble High Court dismissed the petition of opposite party. The complainants have invested the amount anticipating that they will get flat besides monthly sum assured. The opposite party failed to refund the amount paid by the complainants and also failed to pay monthly premiums as per agreement. Therefore, the complainants have been constrained to approach the Hon’ble Forum for appropriate relief. The complainants have prayed that opposite party be directed to refund the amount paid by them with interest and compensation.<br /> 2. The opposite party submitted identical defence version in all the complaints. The opposite party admitted in the version the payment made by respective complainants towards purchase of residential flats in the scheme called Orange Premium. The opposite party had also fairly admitted in the version that he agreed to complete the construction activities and deliver possession within 24 months. The opposite party has also admitted execution of agreement in favour of respective complainants. The opposite party with all bonafide had made payment tune of Rs. 1.84 crores as per the directions of the Hon’ble High Court. However, the Hon’ble High Court has pleased to dismiss the criminal petition filed by opposite party. The opposite party invested more than Rs. 10 crores for the purpose of development of the project. The opposite party preferred SLP before the Hon’ble Supreme Court to dismiss the order of criminal petition. The Hon’ble Supreme Court directed the opposite party to pay entire liability. Opposite party sought some time to deposit the money and Supreme Court was pleased to grant time to opposite party to deposit the entire money. The Hon’ble Supreme Court directed Hon’ble High Court to disburse the entire money so deposited and the matter before the Hon’ble High Court is pending. Opposite party has honestly deposited the money and no intention to cheat any complainants. The opposite party is not liable to pay any compensation as claimed by the complainants.<br /> 3. Arguments are heard.<br /> 4. Perused the pleadings and documents.<br /> 5. The points for consideration are:<br /> 1. Whether the complainants have proved deficiency of service on the part of opposite party?<br /> 2. Whether the complainants are entitled for refund of amount with interest?<br /> 3. Whether the complainants are entitled for compensation?<br /> 6. It is admitted case of the parties that the complainants entered agreement to sell with the opposite party. The respective complainants have paid part sale consideration amount towards purchase of flats. The amounts paid by the respective complainants have been shown in the above schedule. The opposite party has fairly and rightly admitted the payments made by the respective complainants. There is absolutely no dispute as regards payment of amount is concerned. The complainants submitted that as per the agreement the opposite party had under taken to pay rental premium per month to the complainants. But unfortunately, the opposite party had not paid the premium as per the agreement and thereby he had committed default and deficiency in service. The opposite party had also given some cheques to the complainants towards rental premiums and such cheques have been dishonoured for insufficient funds. Complainants submitted that as per agreement the opposite party has not started the construction activities of the project and the opposite party has failed to launch the project and hand over the flats. The complainants submitted that the opposite party had cheated several persons. He has received amount from the customers and not started the project as per the agreement. Therefore, several persons have lodged police complaints against opposite party and FIR was registered against the opposite party. It is also admitted fact that opposite party had filed a criminal petition before the Hon’ble High Court to quash the FIR registered against him and as per the directions of Hon’ble High Court opposite party had deposited Rs. 1.84 crores in the Hon’ble High Court. The criminal petition was dismissed by Hon’ble High Court. It is also admitted fact that the opposite party had filed a SLP No. 2611/2010 before Hon’ble Supreme Court of India against the order of Hon’ble High Court. The Hon’ble Supreme Court directed the opposite party to deposit the amount to be payable to the investors. It is submitted by the learned counsel for the opposite party that as per the directions of Hon’ble Supreme Court the opposite party has deposited Rs. 5,16,00,000/- before the Hon’ble Supreme Court of India. To that effect the opposite party has produced receipt of Supreme Court. The learned advocate for the opposite party submitted that opposite party has no intention to dupe or cheat the complainants. He has bonafide in intention and ready to refund the amount to the respective complainants. The learned advocate submitted that the complainants can very well receive their amount from the Hon’ble High Court since, the amount had been deposited in the Hon’ble High Court and the amount deposited in the Supreme Court shall also be transferred to the Hon’ble High Court. Therefore, ultimately the Hon’ble High Court will take steps to distribute the amount to respective complainants and also other customers who had paid / booked the flat with the opposite party. So under these circumstances there is absolutely no legal hurdle in ordering opposite party to refund the amount to the respective complainants with interest. The complainants are definitely entitled for the interest on their amount. Had the complainants invested the amount in the banks or in any financial institutions they could have earned interest on the amount. Therefore, there is absolutely no reason to refuse interest on the amount paid by the complainants. The complainants have prayed 18% interest on their amount. However, on the facts and circumstances of the case it would be just, fair and reasonable to grant 12% interest p.a. on the refund amount from the date of respective payments made by the complainants. Some of the complainants have received part amount from the Hon’ble High Court and the amount received by the complainants have been shown in the complaints and the said amount had been deducted by the complainants. The complainants have also prayed monthly premium as per the agreement. I am of the opinion that the complainants are not entitled to get monthly premium as per the agreement. The question of granting of rental premium does not arise at all because we are directing the opposite party to pay interest at 12% p.a. from the date of receipt of the amount from the respective complainants. Therefore, the monthly premium prayed by the complainants cannot be granted. If the monthly premium is granted it amounts to payment of double interest. Therefore, such relief cannot be granted. The complainants have prayed for awarding compensation for mental agony, harassment, inconvenience etc. Again no compensation can be granted to the complainants in these cases because the opposite party is being directed to pay back amount received from the respective complainants with interest. Therefore, the interest component will take care of and question of granting compensation does not arise. Therefore, the prayer of the complainants for grant of compensation is not considered. The complainants are ‘consumers’ under the definition of Consumer Protection Act. They have paid amount to the opposite party with a hope that they may get flats. But, unfortunately the opposite party failed to take up the construction activities and the project has not been launched as per the commitment. Therefore, the complainants were forced to approach this forum for justice. The interest of the complainants shall have to be protected by ordering opposite party to refund the entire amount received from the respective complainants with interest. The complainants are at liberty to approach Hon’ble High Court of Karnataka for receiving the amount deposited there by the opposite party. In the result I proceed to pass the following:<br /> ORDER<br /> 7. All the twenty one complaints are allowed. The opposite party is directed to pay the amount as per the following schedule to the respective complainants.<br /> Sl. No. Complaint No. Complainant Name Amount<br /> (in Rupees)<br /> 1. CC/935/2010 Sri Raghavendra M. 2,00,000/-<br /> 2. CC/936/2010 Smt. Vrinda M. 4,00,000/-<br /> 3. CC/937/2010 Sri V. Mahananda 4,92,000/-<br /> 4. CC/938/2010 Sri Appasaheb K. Bhatte 2,42,820/-<br /> 5. CC/939/2010 Sri Deepak Kumar Mujumdar 2,89,947/-<br /> 6. CC/940/2010 Mrs. Tuhina Bhattacharjee 1,60,000/-<br /> 7. CC/941/2010 Sri Lalpati Yadav 3,00,000/-<br /> 8. CC/949/2010 Miss Soujanya Walke 2,90,313/-<br /> 9. CC/950/2010 Sri V.Mahananda 3,28,000/-<br /> 10. CC/1045/2010 Sri Naseeruddin N 1,50,000/-<br /> 11. CC/1046/2010 Smt. Ismat Hazeen 1,60,000/-<br /> 12. CC/1047/2010 Sri S. Murali 1,60,000/-<br /> 13. CC/1048/2010 Miss Tushaara Murali 1,60,000/-<br /> 14. CC/1049/2010 Smt. M.C. Sudhamani 1,60,000/-<br /> 15. CC/1050/2010 Sri Raghu Ramachandraiah 1,50,000/-<br /> 16. CC/1051/2010 Miss Shabana Begum 1,50,000/-<br /> 17. CC/1354/2010<br /> 1)Mr. Taufeeque <br /> 2) Mrs. Kashfa Nazli 3,21,030/-<br /> 18. CC/1355/2010<br /> 1)Sri P.L. Nambiar <br /> 2) Sri Siddharth Nambiar 2,77,936/-<br /> 19. CC/1356/2010 Sri P. Abhilash Prabhakar 2,90,313/-<br /> 20. CC/1357/2010 Sri B.C. Ashok Kumar 1,60,000/-<br /> 21. CC/1358/2010 Sri Nagaraja G 1,50,000/-<br /> <br /> 8. The opposite party is directed to pay interest at 12% p.a. on the above amount from the date of respective payments made by the complainants till the date of refund / realisation.<br /> 9. The respective complainants are entitled for Rs. 3,000/- each as costs of the present litigation from the opposite party.<br /> 10. Keep the copy of the order in connected case files. <br /> 11. Send the copy of this Order to both the parties free of costs immediately. <br /> 12. Pronounced in the Open Forum on this 25TH DAY OF SEPTEMBER 2010. <br /> Order accordingly,<br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br />