BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 24th June 2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 72/2016
Complainant/s: Stanley s/o.Manohar Nandihal,
Age: 45 years, Occ: Govt. Servant, R/o.Shantinagar colony, Basel Mission Compound, Dharwad 580001.
(By Sri.P.S.Bhat, Adv.)
v/s
Respondent/s: Guru Developers, R/By its Partner/ Managing Director, Anand M.Jadhav, C/o.Kanoj Building, Line Bazar, P.B.Road, Dharwad. Presently R/o.Gangaram Nilaya, Sri Shankar Rao Bhosale Marg, Hashmi Circle, M.J.Nagar, Dharwad-6.
(Exparte)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to respondents to execute the sale deed with respect to agreement scheduled property, in case fail to execute, order to refund the amount paid along with interest @18% PA till realization, to pay Rs.10,000/- as compensation, to order for cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant is a government servant. The respondent is a developer. Accordingly the complainant approached the respondent and entered into an agreement of sale and purchase on 17.03.2012 of plot bearing no.62 measuring 1162 sq.ft., developed in Sy.No.69/1 of Hiremalligwad village. Based on the agreement complainant paid Rs.2,05,000/- in 2 installments towards advance payment and agreed to pay remaining amount on monthly installment of Rs.5000/- of 24 EMIs. As per the terms and conditions of the agreement complainant paid in all Rs.3,20,000/-. Last installment was paid on 18.02.2014. Despite payment of installments as per the terms and conditions of the agreement the respondent did not develop the plot and executed registered sale deed as agreed, and despite of calling upon to execute the same by issuing registered notice which amounts to deficiency in service. Hence, complainant filed the instant complaint praying for the relief as sought.
3. Despite service of notice respondent remained absent. Hence, exparte proceedings initiated by placing exparte.
4. On the said pleadings the following points have arisen for consideration:
1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?
Complainant admits sworn to evidence affidavit, relied on documents. Heard. Perused the records.
Finding on points is as under.
1. Affirmatively
2. Accordingly
3. As per order
R E A S O N S
P O I N T S 1 & 2
5. On going through the pleadings & evidence coupled with documents it is evident that there is no dispute with regard to the fact, the complainant entered into agreement with respondent to purchase the plot to be developed by the respondent.
6. Now the question to be determined is, despite payment of all EMIs as per agreement non executing the sale deed by respondent amounts to a deficiency in service, if so, for what relief the complainant is entitled.
7. Since the facts have been revealed in detail which requires no repetition. So also since the respondent has been placed exparte complaint averments stood unimpeached.
8. Ex.C1 to EX.C23 payment receipts establish the complainant has paid in all Rs.3,20,000/- & the respondent reports the same. Ex.C24 sale agreement further rectifies the contract of sale and purchase between the complainant and respondent. Ex.C27 legal notice reveals despite of payment and approach the respondent did not replied nor complied the requirements & demands made by the complainant. Ex.C28 & 29 reveals the respondent intentionally avoid the service of notices sent by the complainant. Ex.C31 paper publication taken for substitute service of notice by this Forum and remaining absent exhibits intentional avoid of prosecution before this Forum. All these facts together establish the case of the complainant and complainant with appulsive and cogent evidence establish his case of deficiency in service by the respondent. Hence, complainant is entitled for the reliefs as prayed.
9. By looking into the steps taken by the complainant in enforcing the execution of the sale deed by the respondent the complainant has made strenuous effort in securing the respondent & even spent huge amount for service of court notice by way of paper publication. The complainant sought for refund of the amount paid with interest @18% but nowhere in the agreement it is mentioned default clause and also charging of interest on defaulted amount. However the complainant sought for interest @18% if it is ordered the same interest commencing from payment of advance amount till filing of this complaint i.e.22.02.2016 it will not cause injustice to the respondent as respondent has intentionally evaded to execute the sale deed or to refund the amount received by the complainant. If it is ordered prevailing interest @ 12% PA from the date of filing complaint till realization it will be justifiable on equity.
10. In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmatively and accordingly.
11. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is partly allowed. The respondent is directed to refund Rs.3,20,000/- along with interest as observed along with Rs.5,000/- towards cost of the proceedings within 60 days from the date of receipt of copy of this order.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 24th day of June 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
