State Consumer Disputes Redressal Commission
Maa Vaishnavi Builders & Developers vs Ashish Vijay Satpute & Other on 28 April, 2014
Daily Order
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES, NAGPUR-440
001
First Appeal No.
A/09/689
(Arisen out of Order
Dated 12/08/2009 in Case No. CC/09/100 of District None)
1.
MAA VAISHNAVI BUILDERS & DEVELOPERS
PRADIP
DIGAMBER BANTE
R/O
DASARA ROAD, NEW KASHIBAI TEMPLE, NAGPUR
...........Appellant(s)
Versus
1.
ASHISH VIJAY SATPUTE (2) SMT. SHOBHA VIJAY SATPUTE
PLOT
NO. 17, SWASTIK COLONY, RAJKALA TALKIES ROAD,
WARDHA
2.
DEVRAO ANANDROO INGOLE,
R/O.
JANKI TALKIES, NAGPUR.
...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A.Shaikh PRESIDING MEMBER
HON'ABLE MRS. Jayshree Yengal MEMBER
PRESENT:
Adv. Mr. S.M. Kasture
......for the Appellant
Adv. Smt. S.K. Paunikar for respondent No. 1 & 2
Adv. Mr. V.M.Gadkari for respondent No. 3
......for the Respondent
ORDER
(Passed On 28/04/2014) Per Smt. Jayshree Yengal, Honble Member
1. This appeal arises out of order dated 12/08/2009, passed by the District Forum, Nagpur, partly allowing the Consumer Complaint bearing No. 100 of 2009 thereby directing the opposite parties to give no objection certificate issued by Nagpur Improvement Trust and the sanctioned map to the complainant and the complainant after receiving the said documents to pay the balance amount towards cost of flat to the opposite parties and the opposite parties to execute the sale deed in favour of the complainants. The opposite party to pay compensation of Rs. 5,000/- towards mental and physical harassment and Rs. 3,000/- more towards cost of proceedings.
2. Appellant Maa Vaishnavi Builders Developers be referred as OP No. 2 and respondent no. 1 Mr. Ashish Vijay Satpute and respondent No. 2 Smt. Shobha Vijay Satpute be referred as complainants no. 1 and 2 and respondent no. 3 Mr. Devrao Anandrao Ingole be referred as OP no. 1 for the sake of brevity.
3. Brief facts giving rise to this appeal are as under:-
The complainants had entered into an agreement of sale on 09/05/2008 with opposite party No. 1 and 2 for purchase of flat bearing No. 104 in the proposed housing scheme of Maa Vaishnavi Builders developed by opposite party no. 2 for a consideration of Rs. 11,71,000/-. The complainant had paid an amount of Rs. 2,92,000/- towards the said apartment on 9/5/2008. The complainants to avail financial assistance had approached HDFC Bank, Butibori Branch for the purchase of flat. The said Bank sanctioned the loan of Rs. 10,28,401/- by letter dated 19/08/2008 subject to the complainant submitting the revised sanctioned map of the construction and no objection certificate of the NIT. Since, the opposite parties failed to provide these documents, the finance was not disbursed to the complainant in spite of repeated demands made by the complainant to the opposite party.
4. It is a contention of the complainant that had the opposite parties supplied the no objection certificate of NIT and the sanctioned map of the construction to the HDFC Bank, the sanctioned finance would have been disbursed to the opposite party and the complainant would have paid the consideration towards purchase of the apartment and the sale deed would have been executed.
5. The complainant on 02/12/2008 issued a legal notice to the opposite party No. 2 calling upon him to submit sanctioned map of construction and NOC from NIT. Since the opposite parties failed to comply, alleging deficiency in service, they filed a consumer complaint seeking directions to give NOC of NIT and to execute the sale deed in respect of the apartment booked by the complainant after receiving the balance amount of consideration towards cost of flat, to pay compensation of Rs. 50,000/- towards mental and physical harassment and 5,000/- more towards cost of proceedings.
6. The opposite parties resisted the complaint by filing their written version and denied all the adverse allegations of the complainant. The opposite parties specifically submitted that the loan was sanctioned by HDFC bank only when the necessary documents like General power of attorney, agreement of development and sanctioned map of construction were submitted to the bank.
7. The opposite party submitted that the housing scheme of Vaishnav Dham Complex was tied up with State Bank of India, Vardhaman Nagar, Nagpur Branch and therefore the loan should have been availed from that bank only and accordingly complainant was informed orally and in writing. Since the complainants failed to make payment as per the schedule to the opposite parties, the OP by letter dated 25/11/2008 called upon the complainants to make the payment of the balance amount towards cost of flat. The complainants instead of complying with the notice, approached the opposite parties and expressed his unwillingness to purchase the apartment and demanded refund of an amount of Rs. 2,92,000/-. Therefore the opposite party No. 2 by cheque bearing No. 004067 dated 24/12/2008 drawn on Tirupati Urban Co-op Bank Ltd deposited the said amount of Rs. 2,92,000/- in the account of complainant No. 1 and thus refunded the amount Therefore they have not rendered any deficiency in service and the complaint deserves to be dismissed being frivolous.
8. The Forum after hearing both the sides and perusing the documents on record, partly allowed the complaint as aforesaid. The Forum has held that the opposite party depositing an amount of Rs. 2,92,000/- directly into the account of the complainant reflects that it can be only with the intention to avoid executing the sale deed in favour of the complainants as rightly alleged by the complainants. The Forum has further held that the opposite party No. 2 is a developer and he must be maintaining record of every transaction. Had the opposite party No. 2 refunded the amount of Rs. 2,92,000/- as per the request made by the complainant, it would have handed over the cheque to the complainants personally and would have also taken the receipt to that effect. The Forum has further held that admittedly there was an agreement of sale executed between both the parties and the complainant had availed loan from a particular bank. The opposite party insisting to avail the loan from the particular bank only and not supplying the necessary documents for procuring the said loan results into deficiency in service and therefore the opposite parties are liable to supply the necessary documents and execute the sale deed in favour of the complainants after receiving the balance amount of consideration from the complainants.
9. Feeling aggrieved by the impugned order, the opposite party No. 2 has filed this appeal. The main challenge in this appeal is that the amount received from the complainant is refunded to the complainant. Therefore complainant ceases to be the consumer of the OP and therefore the impugned order is bad in law and deserves to be quashed and set aside. In support of his contention the appellant has relied on the decision of the Honble National Commission in the case of Satija Vs. Hariyana Urban Developers Authority reported in III(2013)CPJ 475(NC) where it is held that;
Once petitioner received amount unconditionally and got cheque encashed, petitioner ceases to be consumer- Privity of contract or relationship of consumer and service provider came to an end the moment petitioner accepted refund amount and got cheque encashed.
The facts in that case are that the complainant had surrendered the plot and sought for refund of the amount by an application and thereafter the complainant after two months, again by another application sought for withdrawal of earlier application made for surrender of the plot.
In the present case, it is contended that the appellant has not brought any evidence on record to show that the contract between the parties has came to an end and the relationship of consumer and service provider has also ceased.
10. We heard counsels for both the sides and perused the written notes of arguments, copy of the complaint, written version and all the documents filed on record by both the parties. The evidence brought on record does not reflect that the appellant has refunded the amount of Rs. 2,92,000/- in the bank account of the complainant in consequence of request made by the complainant. Said deposit is made directly into the bank account of the complainant without any evidence to show that it was refunded as per the demand of the complainant or as a result of termination/cancellation of agreement between the parties. It is not proved that the refund has resulted out of the demand made by the complainant. Nor the notices exchanged between both the parties which are on record reflect that there is cancellation or termination of contract between the parties. Therefore the aforesaid authority relied upon by the appellant cannot be of any support to the stand taken by the appellant. The complainant apprehending any further unfair trade practice being adopted by the opposite parties and retaining the amount as security can be accepted as safety measure adopted by the complainant. The documents nowhere reflect that the opposite party had cancelled the agreement or the complainants had demanded refund of the deposit, as they no longer wanted to pursue with the agreement entered into with the opposite party.
11 In our opinion the Forum has rightly held that had complainants made a demand for refund, the opposite party would have handed over the cheque directly to the complainants personally after procuring the necessary receipt.
12. For the forgoing reasons, we find no glaring infirmity or irregularity in the impugned order and the appeal deserves to be dismissed being devoid of any merits. Hence we proceed to pass the following order.
ORDER
i) Appeal is dismissed
ii) Impugned order dated 12/08/2009, passed in consumer complaint No. 100 of 2009 is confirmed.
iii) In the peculiar facts and circumstances of the case, parties to bear their own cost.
iv) Copy of order be furnished to both the parties, free of cost.
[HON'ABLE MR. B.A.Shaikh] PRESIDING MEMBER [HON'ABLE MRS. Jayshree Yengal] MEMBER