Anriya Project Management Services Pvt. Ltd. & Anr vs Prakash Mehra

The present First Appeal is filed by the Appellants under Section 19 of the Consumer Protection Act, 1986 against Order passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as the "State Commission") in C.C. No. 133/2012 dated 19.08.2016.

It is stated by the Respondent/Complainant that the Appellants/Opposite Parties constructed a residential condominium called as Anriya Palatial, situated at No.2/4, Lottegollahalli Village, Kasaba Hobli, Bangalore North Taluk. On persuasion by the Appellants, the Respondent booked a Flat in the Project of the Appellants. The Respondent paid an advance of Rs. 25 lakhs as booking amount to Appellant No.1 by cheque but the Appellant had not issued any receipt as it was only an advance to reserve the right of allotment of a flat. Thereafter, the Respondent cancelled the advance booking, as the Appellants quoted exorbitant sale price when compared to the one that was offered by one of the stakeholders in the same project. The Respondent pursued with the Appellants for refund of the booking amount of Rs. 25 Lakhs. The Appellants requested the Respondent for some time as they were in deep financial crisis and on humanitarian grounds the Respondent agreed to grant a years time to the Appellants for refund of the same. Thereafter, the Appellants kept on dodging their promise on one pretext or the other. Finally, on 30.03.2012, the Respondent issued a letter to the Appellants seeking refund of the advance amount. The Appellants, vide letter dated 17.04.2012, replied that the booking amount paid by the Respondent has attained finality on the basis of a sale deed dated 08.02.2011, which was totally false. Hence, Complaint was filed by the Respondent alleging deficiency in service on the part of the Appellants.

The Complaint was contested by the Appellants in the State Commission stating that in the year 2008-09, Appellant No. 1 faced extreme stress of re-payment and availed loan from financial institutions. The Respondent approached Appellant No.1 for booking of a Flat, being aware of the loan to be repaid by the Appellant No.1 to M/s Brindavan Beverages Pvt. Ltd. Thereafter, on 08.02.2011, the Respondent negotiated the entire transactions with M/s Brindavan Beverages Pvt. Ltd. and got the sale deed executed in the name of his son Rakesh Mehra and daughter-in-law Shweta Mehra. Hence, the averments made by the Respondent in the Complaint were not true and there was no deficiency of service on the part of the Appellants.

The State Commission, vide order dated 19.08.2016, partly allowed the Complaint and directed the Appellants to pay Rs. 25 lakhs to the Respondent , with interest @9% per annum from the date of payment till realization, on the ground that Appellants have no right to appropriate the amount received from the Respondent towards any cause of purchase of the apartment by the Respondent's son. Being aggrieved by the order of the State Commission, the Appellants filed the present Appeal.

The grounds for filing the present Appeal are as below:

Section 24-A of the Consumer Protection Act, 1986 states that Complaint shall not be admitted if it is not filed within 2 years from the date of cause of action.

The cause of action mentioned in the Complaint is of 20.11.2009. Hence, Complaint should have been filed within 2 years i.e. on or before 20.11.2011 but it was filed on 07.11.2012. There is a delay of about 1 year and no application was filed by the Respondent for condonation of the delay in filing the Complaint Case.

Heard the Learned Counsel for the Appellants and Respondent. They reiterated their respective contentions as stated above. We have also carefully gone through the evidence placed on record.

The Appellant is a builder. The Respondent approached the Appellants for booking of a flat and paid Appellant No.1, an advance of Rs.25,00,000/- through cheque being No.230944 dated 20/11/2009 drawn of Dena Bank. Later the Respondent cancelled the booking, as the Appellant had quoted exorbitant sale price compared to M/s Brindavan Beverages, who also had flats in the same condominium. Thereupon, the Respondent sought refund of the amount and the Appellants requested for time as they were in financial difficulties. The Respondent on humanitarian grounds, agreed to grant time to the Appellant. After completion of one year, during December 2010, the Respondent prevailed upon Appellants for refund of the booking amount. As the Appellants went on dodging, the Respondent issued a letter of demand dated 30/3/2012 to which the Appellants replied vide letter dated 17/4/2012 stating that on execution of sale deed dated 8/2/2011, the booking amount paid by the Respondent attained finality. A legal notice dated 9/6/2012 demanding refund of booking amount was replied on 9/7/2012.

From the above narration it is clear that the Respondent made several attempts to get refund of the amount paid and by letter dated 17/4/2012 the Appellants had replied stating that on execution of sale deed dated 8/2/2011 the booking amount paid by the Respondent had attained finality, an 'evasive' reply that there was no question of refunding the advance paid by the Respondent. Thereafter, the Respondent issued legal notice dated 9/6/2012 demanding refund of the booking amount and then filed Consumer Complaint in the State Commission. The Consumer Complaint was therefore filed well within the prescribed time under the Consumer Protection Act, 1986.

The contention of the Appellants is that the advance amount of Rs.25 lakhs paid by the Respondent was adjusted towards completing the construction of the flat sold to the Respondent's son through M/s Brindavan Beverages Pvt. Ltd. As per the sale deed dated 8.2.11 executed between Anariya Project Management Services Pvt. Ltd., OP and M/s Brindavan Beverages Pvt. Ltd., in favour of Respondent's son, the total sale consideration of Rs.88,17,200/- was completely paid by the Respondent's son. The State Commission also clearly stated that the Respondents have failed to produce any document with regard to spending of Rs.25.00 lakhs towards alleged completion of the said apartment bearing No.1204. The Appellant could not substantiate their case by producing cogent evidence. Payment of Rs.25.00 lakhs by the Respondent to the Appellant is not in dispute and merely because the son of the Respondent purchased an apartment of the Appellant through somebody else, it cannot be said that the Appellant had right to appropriate the said amount received from the Respondent. More so as the sale deed executed in favour of son of the Respondent discloses the payment of entire sale consideration, it cannot be said that the amount of Rs.25.00 lakhs was adjusted towards completion or otherwise of the said apartment and that too in the absence of documents.

10 In view of the above, we are convinced that the State Commission order is fair, just and reasonable and the same is confirmed. The First Appeal is dismissed.