BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 10^th DAY OF NOVEMBER 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant through his GPA holder has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct them to refund her a sum of Rs.2,00,000/- with interest @ 18% p.a, compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/-.

2. The brief averments made in the complaint are as under:

That the OPs are leading constructions group in Bangalore and are engaged construction apartments in different areas at Bangalore.  That the complainant and her daughter R.S Roopa, wanted to purchase two flats in the project of OPs and visited the office of OPs and both of them have paid some advance towards purchase of one flat for each of them in two separate projects.  That the complainant paid a sum of Rs.2,00,000/- by way of two cheques drawn on SBM and Syndicate bank and both the cheques have been encashed by the OPs.  That the OPs have also issued receipt for having received the cheques.  That the daughter of the complainant paid more than Rs.30,00,000/-.  That subsequent to paying the advance amount complainant approached Indian Bank, Richmond Circle Branch, Bangalore for raising loan but the Bank rejected to advance loans on the ground that the OPs have deviated more than 100% in the construction of the apartments.  Therefore, the complainant demanded OPs to refund her advance amount of Rs.2,00,000/- paid by her.

That the OPs who had collected more than 80% of the total consideration amount from the daughter of the complainant told the complainant orally that they will adjust the said sum of Rs.2,00,000/- with the amount to be paid by her daughter, for which the complainant agreed.  That in the meantime there was certain major deficiency in the service on behalf of the OPs with regard to construction of the flat of her daughter.  Therefore she filed the complaint on the file of Principle District Consumer Redressal Forum in complaint no.717/2010 and the said complaint was allowed directing OPs to refund the advance amount to her.  While disposing the said complaint filed by her daughter, the Hon’ble Forum stated that the amount paid by the complainant cannot be considered as the amount paid by the complainant and directed the complainant to agitate separately.  Therefore, the complainant is visiting the office of OPs for refund of the above said amount but they are protracting and refusing to pay the said amount.  Therefore, having no other choice the complainant has approached this Forum for redressal.

3. In response to the notice issued, OPs appeared through their advocate and filed their version contending in brief as under:

The complaint is barred by limitation.  That the GPA holder is not competent to represent the complainant before this Forum.  That it is true that the complainant and her daughter Smt.R.S Roopa wanted to purchase two flats from the projects being developed by the OPs but they failed to keep their promise and cancelled the construction agreement.  That as per the construction agreement the complainant had agreed to pay total sale consideration of Rs.42,67,600/- in installments basis as mentioned in the construction agreement.  That as per the terms of the construction agreement if there is any default in payment of installments the same shall be construed as breach of contract and the purchaser shall pay interest @ 24% p.a from the date of default or if the default is two or more consecutive installments, treat a sum of Rs.15% of the cost of the apartment as forfeited and adjust it as liquidated damages from out of the moneys paid by the purchaser.

That the complainant has paid a sum of Rs.2,00,000/- only as advance at the time of entering into construction agreement and executed the said amount she has not made any further payment.  That the OPs made several requests and reminders but she failed to honour the terms and conditions of the construction agreement.  That thereafter OP got issued demand notice to the complainant for payment of installments but complainant failed to pay the same.  Therefore, as per the conditions of the construction agreement OP has issued notice to forfeit of advance amount of Rs.2,00,000/- as per clause-4(b) of construction agreement.  That instead of paying the installments complainant has requested OPs to cancel the construction agreement.  That as per clause-12 of the construction agreement, the complainant has no right to terminate the construction agreement without forfeiting her right to the undivided share in the schedule A property and schedule B property.  That complainant as well as her daughter agreed to purchase flats from the OPs in different projects and thereafter withdrew agreement of sale without any valid reasons.

That the complainant has approached this Forum by suppressing the material facts.  That the daughter of the complainant has filed a false complaint against the OP in complaint No.717/2010.  That OP has rightfully forfeited the advance amount of Rs.2,00,000/- paid by the complainant.  For the reasons stated above, OPs pray for dismissal of the complaint.

4. The points that arise for our determination in this case are as under:

        5. The GPA holder of complainant as well as OPs tendered their evidence by way of affidavit and placed reliance on documents in support of their respective contentions.  We have heard the oral arguments advanced by both sides.

6. Our answer to the above issues are as under:

REASONS

7.  It is not in dispute that the complainant along with her daughter booked two separate flats in the apartment complex to be build by OPs and the complainant paid a sum of Rs.2,00,000/- by way of cheque to the OPs.  It is also not in dispute that the daughter of the complainant also paid more than Rs.30,000/- towards purchase of the flat in her favour.  OPs admits the receipt of the advance amount paid by the complainant towards purchase of flat and also admits about the agreement entered into between the complainant and themselves in respect of flat to be purchased by the complainant.

8. It is the case of the complainant that after paying the above mentioned advance amount, she approached Indian Bank, Richmond Road Branch, Bangalore for raising loan to pay the balance consideration amount and after perusing the documents the said Bank refused to advance her loan on the ground that there is more than 100% deviation in the construction area by the OPs.  Therefore, she contends that she requested the OPs for refund of the said amount of Rs.2,00,000/-.  She further claims that her daughter had paid more than 80% of the total consideration amount towards flat to be purchased in her name and she was yet to pay some more amount and OPs orally informed her that her advance amount of Rs.2,00,000/- would be adjusted towards the consideration amount yet to be paid by her daughter for which she agreed and kept quite.

9. It is further case of the complainant that because of the deviation in the construction of the apartments and due to deficiency of service her daughter also approached the District Consumer Redressal Forum at Bangalore demanding refund of entire amount paid by her in complaint No.717/2010 and after the trial the said complaint came to be allowed by order dated 10^th Day of December 2010 directing the OPs herein to refund her daughter a sum of Rs.13,23,150/- together with litigation cost of Rs.10,000/-.  The copy of the said order is produced.  Aggrieved by the said order, the OPs therein preferred an appeal before the Hon’ble Karnataka State Consumer Disputes Reddressal Commission, Bangalore in Appeal no.165/2011 and after hearing the Hon’ble State Commission dismissed the said appeal by its order dated 29^th June 2011.

10. OPs in their version did not deny the request made by the complainant to adjust the amount of Rs.2,00,000/- paid by her towards the amount yet to be paid by her daughter towards purchase of apartment in her name.  OPs have also produced the copy of letter addressed by the complainant to OPs requesting them to adjust Rs.2,00,000/- paid by her towards amount to be paid by her daughter in respect of flat purchased by her (daughter).  Admittedly OPs have not responded to the said letter and also not refused to adjust the said amount towards amount yet to be paid by her daughter.  However, the III Additional Bangalore urban District Consumer Disputes Redressal Forum while disposing the complaint denied refund of Rs.2,00,000/- paid by this complainant in favour of her daughter who is complainant therein on the ground that the said Rs.2,00,000/- does not pertain to the transaction made in the said complaint and also amount so paid was not towards purchase of flat by the complainant therein.  The OPs aggrieved by the order passed by the District Forum have preferred an appeal before the Hon’ble State Commission at Bangalore and appeal also came to be dismissed as stated supra.

11. It is contended by the complainant that subsequent to disposal of the appeal she again requested the OPs to refund her booking advance amount of Rs.200,000/- but they went on protracting the same and ultimately refused to refund the amount, therefore she was compelled to approach the Forum.  OPs in their version as well as in their affidavit evidence took up a contention that in pursuance of clause-4(b) of the agreement they are entitled to forfeit a sum equivalent 15% of the cost of the apartment and adjust the same as liquidated damages from out of the moneys paid by purchaser and rescind the contract.  On the basis of the said clause, OPs contended that the complainant has no right to claim refund of the amount as the same has been collected by them in pursuance of the above said clause-4(b) of the agreement.  It is pertinent to note here that the OPs while contesting the complaint bearing No.717/2010 filed by the daughter of the complainant did not took up a such a contention that the amount has been paid by the complainant has been forfeited in pursuance of clause-4(b) of the agreement.  Even such a contention was not taken up by them in the appeal preferred before the Hon’ble State Commission.

12. The conduct of OPs in not replying to the letter dated 08.09.2007 written by the complainant requesting them to adjust the said amount of Rs.2,00,000/- towards the amount to be paid by her daughter amounts to their acceptance of adjusting the said amount as requested by her.  It is also pertinent to note that OPs never either orally or in writing communicated the complainant that the booking amount of Rs.2,00,000/- paid by her has been forfeited in terms of the construction agreement entered between themselves and the complainant.  OPs even at the time of cancelling the construction agreement as per the request of the complainant have not intimated her in writing that they are forfeiting the booking amount of Rs.2,00,000/- paid by her.  The OPs by their conduct as stated above have accepted the request of the complainant to adjust the said amount of Rs.2,00,000/- towards the amount to be paid by her daughter.  However, unfortunately the daughter of the complainant Smt.R.S Roopa failed to get refund of the said amount of Rs.2,00,000/- from the OPs while prosecuting her complaint No.717/2010.  As stated above, the III Additional Forum refused to order the refund of the said amount to the said R.S Roopa on the ground that the said amount of Rs.2,00,000/- has been paid by her mother regarding another transaction.

13. After disposal of complaint No.717/2010 and the Appeal thereafter the complainant has repeatedly requested the OPs for refund of her booking amount of Rs.2,00,000/-.  However the OPs deliberately failed to refund the said amount thereby forcing the complainant to approach the Forum.  The delay on the part of complainant in filing the present complaint is only because of filing of complaint by her daughter in complaint No.717/2010.  Within two years from the date of disposal of Appeal no.165/2011 the complainant has filed this complaint.  Therefore, there is no basis for the contention of OPs that the complaint is barred by limitation.  The conduct of OPs in refusing to refund the said booking amount certainly amounts to deficiency of service.  The failure of the OPs in refusing to pay the booking amount to the complainant must have caused her great hardship, inconvenience and mental agony.  Therefore, the OPs have to be directed to pay adequate compensation to the complainant apart from refunding booking amount of Rs.2,00,000/-.

14. In view of the discussions made above and the facts and circumstances of the case, we feel it appropriate to direct the OPs to refund Rs.2,00,000/- to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further the OPs are directed to pay compensation of Rs.10,000/- to the complainant together with litigation cost of Rs.6,000/-.   

15. The order could not be passed within the stipulated time due to heavy pendency. 

16. In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainants U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are directed to pay Rs.2,00,000/- (Rupees Two Lakhs Only) to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further OPs are directed to pay compensation of Rs.10,000/- to the complainant together with litigation cost of Rs.6,000/-.

OPs shall comply the said order within four weeks from the date of communication.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 10^th day of November 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant.

1. Sri.M.Ramaswamy.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties dated 04.08.2015.

1. Sri.L.Balakrishnama Naidu.  

Documents produced by the Opposite parties:

MEMBER                            MEMBER                    PRESIDENT

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