Date of Filing: 24/04/2017
Date of Order: 11/06/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated:11TH DAY OF JUNE 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.809/2017
COMPLAINANT/S | | |
| 1 | Smt. S.G.Gondi, W/o. Gurupadappa N.Gondi, Aged about 60 years, R/at: No.892/77, Ground Floor, 4th Main, Vijayanagar, Bangalore -40 (Sri.C.N.Adv., for complainant) |
V/s
OPPOSITE PARTY/IES | | |
| 1 | M/s. Max Worth Realty India Limited, A Company registered under Companies Act, Having its office at K.M.P House, No.12/2, Yamuna Bai Road, Madhavanagara, Bengaluru -560 001. Rep by its Managing Director Sri. Kesava Kolar, (Sri. B.C.P., adv. for O.P.) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT:
1. This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party (hereinafter referred to as O.P) alleging deficiency in service and to direct O.P to refund Rs.2,00,000/- with interest from the date of payment till realization at the rate of 24% per annum and Rs.50,000/-towards travel expenses, mental agony and physical stress and strain suffered by the complainant and to pass such other order as this Forum deems fit.
2. The brief facts of the complainant case are that, O.P is a developer and developed residential site under the name of “MAX SINDHUR”. The complainant wanted to purchase plot No.78 and 79 measuring 2400 Sq. feet for total Sale consideration of Rs.10,80,000/-. The complainant has paid Rs.2,00,000/- byway of cheque bearing No.240258 on 22.04.2012 drawn on ICTI bank, Rajajinagar Bengaluru for which O.P issued receipts towards part consideration of the said plot, where in it was agreed to handover the possession of the schedule property within in stipulated time. O.P for one reason or the other extended the time with a view to drag on the formation and handing over the possession of the same. They have duped him for Rs.10,80,000/-. Inspite of notice, they have not returned the amount and handed over the possession of the plot. Hence this complaint.
3. Upon service of notice O.P appeared before the Forum and filed its version contending that the complaint is not maintainable, it is vexatious and frivolous to be dismissed. Op states that the allegation made by the complainant in respect of issuance of cheque bearing No.240258 for Rs.2,00,000/- dated 22.12.2012 as advance in respect of purchasing plot from Op has not presented before the bank for realization hence the allegation made by the complainant do not hold any substance and on this ground only complainant into be dismissed. As per the terms and conditions of booking from, complainant has not paid 30% of sale consideration. Hence complainant has breached the contract. There is no deficiency on its part as it would have executed the sale deed, if there was no cancellation of the project. The allegation made against it are all baseless and hence O.P prayed to dismiss the complaint.
4. In order to prove the respective case, the complainant and O.Ps have filed affidavit evidence reiterating the contents of the complaint and their version respectively. Perused the documents produced by the complainant and O.P. Heard the arguments.
5. On the basis of the above pleadings and evidence of the complainant and O.P, the following points arise for our consideration:-
1) Whether the complainant has proved
deficiency in service on the part of the
Opposite Party?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
6. Our answers to the above points are:-
POINT 1: Negative.
POINT 2: Partly in the affirmative
as per the final order.
REASONS
ON POINT No.1:-
7. The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. Besides he has also produced booking form, receipts, copy of the legal notice and postal receipts issued by the O.P for having sent the legal notice, wherein it has agreed to sell the plot at the rate of Rs.450/- per sq. feet by receiving cheque bearing No.240258 for Rs.2,00,000/- on dated two different dates as advance sale consideration.
8. Upon considering the version of O.P, and also documents filed by him it has come to our notice that the cheque issued by the complainant to the Op has not been presented before the bank for realization. For which Op produced non presented cheque for consideration by this Forum. Under the circumstance, the question of receiving amount as advance does not arise at all. The allegation of the complainant in respect of advance payment for the plot does not hold any substance, automatically it is just and proper to draw the inference in favour of the Op that the deficiency of service cannot be construed and also burrden of negligence on the part of OP cannot be casted. In view of this there is no deficiency in the service. Hence we answer this point.No.1 In the Negative.
ON POINT No. 2:-
9. In view of our answer to Point No.1 in the negative, there is no deficiency in service on the part of O.P and hence it is not liable to refund the amount which it has not received from the complainant. Due to in action of the O.P in not presenting the cheque and not allotting site/plot in time, the complainant has suffered physical strain, mental agony and financial loss which we quantify at Rs.5,000/-. The Act of the O.P made the complainant to file this complaint by engaging advocate by paying his profession fee and also spent money in attending the Forums hearing on each and every day. We are of the opinion that if a sum of Rs.5,000/- if awarded towards litigation expenses ends of justice will be met. Hence we answer Point No.2 partly in the affirmative and we proceed to pass the following:-
ORDER
1. The complaint of the complainant is partly allowed,
2. The O.P is hereby directed to pay Rs.5,000/- towards damages and Rs.5,000/- towards cost of the litigation expenses to the complainant.
3. The O.P. is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
4. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 11th of June 2018)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 :Smt. S.G. Gondi– Complainant.
Copies of Documents produced on behalf of Complainant/s:
Doc:No.1: Copy of the receipts.
Doc.No.2: Copy of the Booking form.
Doc.No.3: Copy of the Legal Notice dtd: 23.3.2017.
Doc.No.4 : Copies of the postal receipt and Postal
Acknowledgment
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Mr.Roopesh Sulegai.
Copies of Documents produced on behalf of Opposite Party/s:
-Nil-
MEMBER PRESIDENT
