CC Filed on 15.02.2011
Disposed on 24.09.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.
Dated: 24th day of September 2011
PRESENT:
HONORABLE T. RAJASHEKHARAIAH, President.
HONORABLE T.NAGARAJA, Member.
HONORABLE K.G.SHANTALA, Member.
---
Consumer Complaint No. 19/2011
Between:
Sri. Prakash M Bhat, S/o. Mahabaleswaras Bhat, Aged about 38 years, Senior Asst. Teacher, K.H.E.P High School, Ambikanagar Post, Haliyal Taluk, Uttara Kannada, Karnataka State. (By Advocate Sri. B. Kumar & others ) | ….Complainant |
V/S Sri. S.K. Ghose Basha, S/o. S.K. Basha, Managing Director, M/s. F.M. Developers, Reg. Office at Flat No.41/A, Residing at No.22/38, Near Crystal School, Behind Shadi Mahal, Panagal Raja Street, Altaleen Street, Nellore-5244001. A.P. (By Advocate Sri. L. Manjunath & others) | ….Opposite Party |
ORDER
This is a complaint filed under section 12 of the Consumer Protection Act, 1986 against the Opposite Party for direction to pay to the complainant a sum of Rs.8,90,557/- together with interest at 18% p.a. along with costs and other reliefs.
2. The complainant alleges that on 10.02.2008 the complainant and the Opposite Party entered into agreement and Opposite Party agreed to sell three sites in Plot No. 405(2), 435 and 365 in Twin City Layout formed in Sy. No. 111 and 115 situated at Yaralakkenahally Village, Somenahalli Hobli, Gudibanda Taluk for valuable consideration of Rs.4,32,000/-, Rs.4,32,000/-, and Rs.2,16,000/- respectively and received a sum of Rs.1,35,000/-, Rs.1,35,000/- and Rs.80,000/- respectively and further agreed to execute sale deed on payment of balance amount by the complainant and within two months from the date of D.T.P.C approval. The complainant further alleges that after having received the advance amount of Rs.3,50,000/- Opposite Party has failed to execute the sale deed as undertaken in respect of three sites and also failed to return the initial amount received, Opposite Party has issued a cheque bearing No. 751590 dated 30.04.2010 for a sum of Rs.3,50,000/- drawn on ING Vysya Bank, HSR Layout, Bangalore which on presentation, was returned as out-dated. The complainant avers that on 10.12.2010 notice has been issued to the Opposite Party demanding to repay the same by registered post ack. due, for which there is also no response. That, by not complying as per the terms and conditions of the agreement of sale dated 10.02.2008 has made the complainant to suffer the damages and mental agony which act of the Opposite Party amounts to deficiency in service. The complainant prays for directing the Opposite Party to pay the amount of Rs.3,50,000/- together interest at 18% from 10.02.2008 to 10.12.2010 amounting to Rs.1,78,000/-, Rs.57/- towards bank commission on account of dishonour of cheque, Rs.12,000/- towards damages, Rs.50,000/- for mental agony, Rs.3,00,000/- towards escalation of site prices and in all to pay Rs.8,90,557/- together with interest at 18% along with costs.
3. The Opposite Party appeared through Counsel and filed version denying all the allegations made in the complaint-forming of layout, receiving of advance amount towards three sites, issuing cheque dated 30.04.2010 for Rs.3,50,000/- and complainant’s willingness and readiness to perform his part of contract. The Opposite Party has further contended that complainant is not a ‘Consumer’ and Opposite Party is not a ‘Trader’. Hence there is no relationship between parties as ‘Consumer’ and ‘Trader’, therefore there is no question of deficiency in service.
4. From the complaint averments, version of Opposite Party, affidavits of both the parties and the documents produced by the complainant, the following points arise for our consideration:
Point No.1: Whether this Forum has jurisdiction to allow the
Complaint?
Point No.2: If so, to what relief/reliefs the complainant is
entitled to ?
Point No.3: To what order?
5. Our findings to these points are as hereunder:
1. Negative
2. Negative
3. As per final order.
R E A S O N S
6. Point No.1 and 2: The complaint averments and the documents namely three advance payment receipts, three agreements to sell filed in support go to show that the transactions between complainant and the Opposite Party are entered into in individual capacity as purchaser of sites and vendor of sites and not in capacity as ‘Consumer’ and ‘Seller’. Failure on the part of Opposite Party to execute sale deed in favour of complainant is clear violation of contractual obligation. The matter is one which requires detail oral evidence for proper adjudication and the relief sought is one arising out of violation of contractual obligation and it is not a consumer dispute. Such being the case, this Forum is not the proper Forum. Accordingly, we hold Point No.1 and 2 in negative.
7. Point No.3: Since point No.1 and 2 is held in negative. Hence we pass the following:
O R D E R
The complaint is dismissed with liberty to the complainant to approach appropriate Forum for relief. No costs.
Dictated to the Stenographer, corrected and pronounced in open Forum this the 24th day of September 2011.
T. NAGARAJA K.G.SHANTALA T. RAJASHEKHARAIAH
MEMBER MEMBER PRESIDENT
