BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  24^th July 2015       

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 79/2015  

Complainant/s:

        Prakash s/o.Naryan Maskeri,

Age: 56 years, Occ: Government Service, R/o.D.No.F-13, 2^nd Floor, Century Park Apartment, Vidyagiri, 1^st Cross, Dharwad.

(By Sri.S.A.Mullur, Adv.)

v/s

Respondent/s:

Veerabhadreshwara Infrastructure & Housing Pvt. Ltd., a company registered under the Companies Act, having its registered office at Muttalli Compound, Saraswatpur, Dharwad 580002. R/by its Managing Director Naganagouda s/o.Shivanagouda Neeralagi, Age: 45 years, Occ: Business, C/o. Veerabhadreshwara Infrastructure & Housing Pvt. Ltd., Muttalli Compound, Saraswatpur, Dharwad 580002

(By Smt.S.M.Patil, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to refund Rs.2,31,825/- paid towards construction installment amount and to refund Rs.24,250/- with interest @18% from 30.04.2010, to pay Rs.50,000/- towards compensation, to pay Rs.10,000/- towards 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, the complainant had entered with respondent with agreement to purchase house in block no.G/04 House No.G4/27 land measuring 1200 sq.ft and house measuring 1500 sq.ft. on 30.04.2010 for a total amount of Rs.15,45,500/- be constructed as per plan and specification & to handover possession within 12 months with grace period of 3 months from 30.04.2010. On the date of agreement dtd.30.04.2010 complainant paid in total an amount of Rs.2,51,075/-. Even after several approaches the respondent did not execute the sale deed and handover the possession as per sale cum construction agreement but went on giving false assurances to return the amount. On 27.02.2014 by a reply to the request letter dtd.26.05.2014 the respondent sought for extension of time to return the amount till April 2014. Except promising to pay did not complied. Hence, complainant got issued legal notice on 12.08.2014 calling upon to return amount with interest. In a reply dtd.21.08.2014 the respondent contended that membership amount of Rs.27250/- an amount of Rs.250/- towards application fee, Rs.2750/- amount paid for registration expenses are not refundable and only Rs.24,250/- will be refunded & rest of the amount will not be refunded as respondent has already spent on line out CC building and development of site and to be resold to other party. Further contended that the respondent has already cancelled the allotment for non payment of balance amount and 35% of the construction cost after line out & CC bedding by the complainant. But cancelation of sale cum construction agreement is  at the instance of complainant due to non payment of balance amount but it is due to delay in completion of work by the respondent and not completing the construction of work within stipulated period of 12 months. This amounts to deficiency in service. Hence, complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments and alleging complaint is not tenable. The approach of complainant is not bonafide and prays for dismissal of the complaint. Further the respondent reveals allocation and utilization of the fund which are received by him from the complainant under the sale cum construction agreement. Further the respondent taken contention that the construction of building is not concluded for the reason the complainant repeatedly approached and got changed the plan and opt for alteration of the plan as per vastu & to provide canopy for car parking. Since there was alteration & modification in the plan twice and non payment of additional payment for modifications as per the requests of the complainant the respondent could not undertake completion work. Hence, fresh agreement was entered and executed.  Even after fresh agreement inspite of several requisitions made by the respondent, complainant did not prepared to pay the differential amount and 2^nd installment i.e. 35% of the cost of the building. Since the complainant himself is the defaulter he ought to make good of the loss as per Clause. 7 & 8 of the agreement. The complainant being defaulter and responsible for breach of contract is not entitled for either refund or to the interest on the amount. At the instance of complainant himself the agreement could not be fulfilled. The allegation of deficiency in service made by the complainant against the respondent with an ulterior motive to make grounds for the present complaint and to have wrongful gain and prays for dismissal of the complaint.

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 ?

Both have 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

Reasons

Points 1 and 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, the complainant and respondent have entered into an agreement of sale cum construction agreement as per Ex.C1. Further there is no dispute with regard to the receipt of membership & first installment i.e. 15% at the time of cost of the agreement.

6.     Now the question to be determined is, whether the complainant has committed default in payment as agreed & non refund of the amount by the respondent amounts to deficiency in service, if so, for what relief the complainant is entitled.

7.     As contended by the respondent it is true that subsequent to the execution of sale cum construction agreement dt.30.04.2010 in the month of August i.e. on 01.08.2010 the complainant approached the respondent and submit requisition to modify the plan. It is also evident by looking into the Ex.R4 requisition letter by the complainant to the respondent dt.08.05.2011 the complainant submits to provide canopy slab and the same was accepted by the respondent on 13.05.2011.  But perusal of the reminders issued by the respondent Ex.5, 6, 7, 9, 10 & 11 to the complainant reveals that inspite of repeated letters and correspondence to pay the 2^nd installment and additional charges towards modification of the plan and additional work the complainant did not complied and paid the amount. By these correspondence it is evident that at the instance of the complainant himself the respondent could not able to carryout the construction works and complete and handover the possession & execute the sale deed. In reply to this the complainant except oral submission i.e. as the respondent did not shown his readiness of developments of the plot they lost hopes as such they did not paid the amount hence they prays for return of the amount. However by looking into the pleadings, evidence and documentary evidence relied by the parties it is evident that at the instance of complainant only the respondent could not conclude the contract and handover the house. When the complainant himself approached this Forum with the allegation of deficiency in service against the respondent the burden lies on the complainant to establish his case. In order to establish his contention that the respondent has not commenced the construction work the complainant did not lead any evidence. Whereas the respondent contended that since the complainant failed to pay the installments and also additional charges for modification of the plan at his desire they could not able to carryout further works and complete the construction. Further the case of the respondent is that, as they have already invested the amount on the development of the plot and at the instance of the complainant as the complainant failed to do payment they have sustained loss as such they have cancelled the agreement & further contended they justified in cancelling the agreement for non payment of the installment.

8.     As per the evidence on record it is evident that the respondent has made all preliminary works by investing the amount as such it is not proper to order for refund of the entire amount paid for the reason the complainant did not cooperate and made further payment & assist for completion of works. In such circumstances if it is ordered to refund the amount received towards construction installment by retaining membership amount and application fee & registration charges received it will suffice the purpose.

9.     In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmatively and accordingly.

10.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

 Complaint is allowed in part. The respondent is directed to refund Rs.2,31,825/- received towards first installment of construction charges with interest @9% P.A from the date of payment till realization along with Rs.1,000/- towards compensation and Rs.1,000/- 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 24^th day of July 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR