Surya Builders V/S Sandeep Gupta - Consumer Court Case

Karnataka

Bangalore Urban

CC/08/2601

Sandeep Gupta - Complainant(s)

Versus

Surya Builders - Opp.Party(s)

Mento Associates

23 Mar 2009

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/08/2601

Sandeep Gupta						...........Appellant(s)
Vs.
Surya Builders						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 29.11.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 23rd MARCH 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2601/2008 COMPLAINANT Sri. Sandeep Gupta, S/o. Mr. Lokchand Gupta, Residing at No. 203, Harihara Enclave, 15th Cross, 1st Main, HSR-Sector 6, Bangalore 34. Advocate (Mento Issac) V/s. OPPOSITE PARTIES 1. Surya Builders, A partnership firm with its office at No. 132, 7th Main, 7th A Cross, HMT Layout, R T Nagar, Bangalore - 32. 2. Mr. R. Suresh, Partner, Surya Builders, No. 132, 7th Main, 7th A Cross, HMT Layout, R T Nagar, Bangalore - 32. Advocate (M.H. Patel) 3. R. Jayaram, Partner, Surya Builders, No. 132, 7th Main, 7th A Cross, HMT Layout, R T Nagar, Bangalore - 32. 4. Mr. Mohammed Riazuddin, Partner, Surya Builders, No. 132, 7th Main, 7th A Cross, HMT Layout, R T Nagar, Bangalore - 32. O R D E R 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 register a property equivalent to the schedule property and pay a compensation of Rs.2,00,000/- and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being lured away with the advertisement and the publication issued by the OPs, who claims to be the builders and developers of residential apartments in and around Bangalore, thought of purchasing an apartment No. G-07 in the project floated by OP. The total sale consideration fixed is Rs.13,50,000/-. An agreement came to be executed on 10.04.2006. Complainant paid Rs.60,000/- on the same day as a part payment. Then availed the Bank loan from Canara Bank to the tune of Rs.9,50,000/-. The said amount was released to the OP. Thus complainant paid in all Rs.10,10,000/- as against the total consideration. Complainant was expecting the completion of the said structure in a schedule time. In the month of September 2007, when he contacted the OP to register and deliver the possession of the flat at that time he came to know that it is sold to one Mr. Rakesh Nair vide sale deed dated 20.08.2007. Thus complainant felt the unfair trade practice and deficiency in service on the part of the OP. Though OP promised to give him an alternative apartment of a similar size in the said project, but they failed to keep up their promise. For no fault of his, complainant is made to suffer both mental agony and financial loss. Though he invested his hard earned money to purchase a flat, he is unable to reap the fruits of his investment. When his repeated requests and demands went in vain, he even got issued the legal notice on 21.10.2007. Again there was no response. Under the circumstances he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant is a defaulter. Though OP contacted him to make payment of the balance of Rs.3,40,000/- along with registration and other charges to get registered the flat, complainant did not responded. Thereafter OP through oversight sold the said flat to Mr. Rakesh Nair. Even till today OP are ready to register the said flat in the name of the complainant if complainant pays the remaining balance and the other necessary charges. With all that complainant failed to pay the balance in due. The EMI which complainant is required to pay to Canara Bank in pursuance of the sanctioned loan of Rs.9,50,000/-, it is the OP who paid the entire EMI including the interest on behalf of the complainant. The complainant has not suffered any monetary loss. Under such circumstances he is not entitled for the refund of the advance of Rs.60,000/- paid. The other allegations are baseless. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint. 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. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 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: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant booked a flat with OP.1 the builder and OP.2 to 4 are the partners in their project with an intention to purchase a flat No. G-07. The total cost of the said flat was fixed at Rs.13,50,000/-and an sale agreement came to be executed on 10.04.2006. It is also not at dispute that complainant made a part payment of Rs.60,000/- on the date of agreement. According to the complainant he availed the loan from Canara Bank to the tune of Rs.9,50,000/- and it was disbursed in favour of the OP on 15.04.2006. So in all he has paid Rs.10,10,000/- to the OP out of the sale consideration Rs.13,50,000/-. This fact is also not at dispute. 7. Now the grievance of the complainant is that though he paid the lump sum amount to the OP and ready and willing to pay the remaining amount, to his utter shock and surprise OP to the reasons best known to it went on postponing the registration of the flat and ultimately without his consent and knowledge in the month of August 2007 OP sold the said flat to one Mr. Rakesh Nair under sale deed dated 20.08.2007. This fact is also not disputed by the OP. Thus complainant felt the deficiency in service and unfair trade practice on the part of the OP. According to the complainant OP promised to allot him the alternative flat of a same size, but failed to keep up the promise. Hence he caused the legal notice. It is further contended that for no fault of his, he is made to suffer both mental agony and financial loss. 8. As against this it is specifically contended by the OP that complainant is the defaulter, he failed to make payment of the balance of Rs.3,40,000/-, inspite of their repeated requests and demands made. The loan availed by the complainant from the Canara Bank is repaid by the OP under the EMI along with an interest. According to OP though complainant availed a loan of Rs.9,50,000/- the repayment made by the OP is to the tune of Rs.12,46,715/-. This fact is not disputed by the complainant and that loan account is closed as full and final settlement. That means to say complainant himself is required to refund actually Rs.2,56,000/- which is paid to the bank by the OP and in all the balance of sale consideration will come to the tune of Rs.6,60,000/-. Having taken note of all these facts and circumstances the claim of the complainant seeking for refund of the advance of Rs.60,000/- appears to be unreasonable and unjust, that too when he himself is in due of Rs.6,60,000/-. 9. Complainant is rather more benefited in view of the repayment of the EMI made by the OP together with interest. Though complainant says that he is entitled for refund of Rs.60,000/-, what about the interest paid and other balance in due is not explained by the complainant. OP is ready to execute the sale deed with respect to the some flat if complainant pays the outstanding dues. When such an equally efficacious relief is ready available to the complainant he cannot allege the deficiency in service. His first prayer is that OP be directed to sell and register a property equivalent to the schedule property. When OP is ready to execute the sale deed with respect to the schedule property, why complainant has not shown his interest in making payment of the amount in due as noted and discussed above. So the approach of the complainant does not appears to be as very much fair and honest. 10. Bearing in mind the facts and circumstances of the case and the complex question of law it entailed it would require volumeness evidence for its disposal, which is not possible for this Forum to go into all these in its summary jurisdiction. If the complainant is so advised, he can file a comprehensive Civil Suit to redress his grievance. As far as the allegations of deficiency in service is concerned, we are of the view that the complainant has failed to establish the same. Hence he is not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: O R D E R The complaint is dismissed. In view of the nature of dispute no order as to costs. (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 23rd day of March 2009.) MEMBER MEMBER PRESIDENT p.n.g.

COMPLAINT FILED: 29.11.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 23rd MARCH 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2601/2008 COMPLAINANT Sri. Sandeep Gupta, S/o. Mr. Lokchand Gupta, Residing at No. 203, Harihara Enclave, 15th Cross, 1st Main, HSR-Sector 6, Bangalore 34. Advocate (Mento Issac) V/s. OPPOSITE PARTIES 1. Surya Builders, A partnership firm with its office at No. 132, 7th Main, 7th A Cross, HMT Layout, R T Nagar, Bangalore - 32. 2. Mr. R. Suresh, Partner, Surya Builders, No. 132, 7th Main, 7th A Cross, HMT Layout, R T Nagar, Bangalore - 32. Advocate (M.H. Patel) 3. R. Jayaram, Partner, Surya Builders, No. 132, 7th Main, 7th A Cross, HMT Layout, R T Nagar, Bangalore - 32. 4. Mr. Mohammed Riazuddin, Partner, Surya Builders, No. 132, 7th Main, 7th A Cross, HMT Layout, R T Nagar, Bangalore - 32. O R D E R 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 register a property equivalent to the schedule property and pay a compensation of Rs.2,00,000/- and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being lured away with the advertisement and the publication issued by the OPs, who claims to be the builders and developers of residential apartments in and around Bangalore, thought of purchasing an apartment No. G-07 in the project floated by OP. The total sale consideration fixed is Rs.13,50,000/-. An agreement came to be executed on 10.04.2006. Complainant paid Rs.60,000/- on the same day as a part payment. Then availed the Bank loan from Canara Bank to the tune of Rs.9,50,000/-. The said amount was released to the OP. Thus complainant paid in all Rs.10,10,000/- as against the total consideration. Complainant was expecting the completion of the said structure in a schedule time. In the month of September 2007, when he contacted the OP to register and deliver the possession of the flat at that time he came to know that it is sold to one Mr. Rakesh Nair vide sale deed dated 20.08.2007. Thus complainant felt the unfair trade practice and deficiency in service on the part of the OP. Though OP promised to give him an alternative apartment of a similar size in the said project, but they failed to keep up their promise. For no fault of his, complainant is made to suffer both mental agony and financial loss. Though he invested his hard earned money to purchase a flat, he is unable to reap the fruits of his investment. When his repeated requests and demands went in vain, he even got issued the legal notice on 21.10.2007. Again there was no response. Under the circumstances he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant is a defaulter. Though OP contacted him to make payment of the balance of Rs.3,40,000/- along with registration and other charges to get registered the flat, complainant did not responded. Thereafter OP through oversight sold the said flat to Mr. Rakesh Nair. Even till today OP are ready to register the said flat in the name of the complainant if complainant pays the remaining balance and the other necessary charges. With all that complainant failed to pay the balance in due. The EMI which complainant is required to pay to Canara Bank in pursuance of the sanctioned loan of Rs.9,50,000/-, it is the OP who paid the entire EMI including the interest on behalf of the complainant. The complainant has not suffered any monetary loss. Under such circumstances he is not entitled for the refund of the advance of Rs.60,000/- paid. The other allegations are baseless. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint. 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. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 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: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant booked a flat with OP.1 the builder and OP.2 to 4 are the partners in their project with an intention to purchase a flat No. G-07. The total cost of the said flat was fixed at Rs.13,50,000/-and an sale agreement came to be executed on 10.04.2006. It is also not at dispute that complainant made a part payment of Rs.60,000/- on the date of agreement. According to the complainant he availed the loan from Canara Bank to the tune of Rs.9,50,000/- and it was disbursed in favour of the OP on 15.04.2006. So in all he has paid Rs.10,10,000/- to the OP out of the sale consideration Rs.13,50,000/-. This fact is also not at dispute. 7. Now the grievance of the complainant is that though he paid the lump sum amount to the OP and ready and willing to pay the remaining amount, to his utter shock and surprise OP to the reasons best known to it went on postponing the registration of the flat and ultimately without his consent and knowledge in the month of August 2007 OP sold the said flat to one Mr. Rakesh Nair under sale deed dated 20.08.2007. This fact is also not disputed by the OP. Thus complainant felt the deficiency in service and unfair trade practice on the part of the OP. According to the complainant OP promised to allot him the alternative flat of a same size, but failed to keep up the promise. Hence he caused the legal notice. It is further contended that for no fault of his, he is made to suffer both mental agony and financial loss. 8. As against this it is specifically contended by the OP that complainant is the defaulter, he failed to make payment of the balance of Rs.3,40,000/-, inspite of their repeated requests and demands made. The loan availed by the complainant from the Canara Bank is repaid by the OP under the EMI along with an interest. According to OP though complainant availed a loan of Rs.9,50,000/- the repayment made by the OP is to the tune of Rs.12,46,715/-. This fact is not disputed by the complainant and that loan account is closed as full and final settlement. That means to say complainant himself is required to refund actually Rs.2,56,000/- which is paid to the bank by the OP and in all the balance of sale consideration will come to the tune of Rs.6,60,000/-. Having taken note of all these facts and circumstances the claim of the complainant seeking for refund of the advance of Rs.60,000/- appears to be unreasonable and unjust, that too when he himself is in due of Rs.6,60,000/-. 9. Complainant is rather more benefited in view of the repayment of the EMI made by the OP together with interest. Though complainant says that he is entitled for refund of Rs.60,000/-, what about the interest paid and other balance in due is not explained by the complainant. OP is ready to execute the sale deed with respect to the some flat if complainant pays the outstanding dues. When such an equally efficacious relief is ready available to the complainant he cannot allege the deficiency in service. His first prayer is that OP be directed to sell and register a property equivalent to the schedule property. When OP is ready to execute the sale deed with respect to the schedule property, why complainant has not shown his interest in making payment of the amount in due as noted and discussed above. So the approach of the complainant does not appears to be as very much fair and honest. 10. Bearing in mind the facts and circumstances of the case and the complex question of law it entailed it would require volumeness evidence for its disposal, which is not possible for this Forum to go into all these in its summary jurisdiction. If the complainant is so advised, he can file a comprehensive Civil Suit to redress his grievance. As far as the allegations of deficiency in service is concerned, we are of the view that the complainant has failed to establish the same. Hence he is not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: O R D E R The complaint is dismissed. In view of the nature of dispute no order as to costs. (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 23rd day of March 2009.) MEMBER MEMBER PRESIDENT p.n.g.