Krishnamurthy B. Sangannanavar, Judicial Member
1. This is an Appeal filed U/s 15 of Consumer Protection Act, 1986 by the Complainant/appellant herein aggrieved by the impugned order dated 21.06.2017 passed by 4th Add., District Consumer Disputes Redressal Commission, Bengaluru in C.C.No.1921/2014. (For short District Commission).
2. Facts in brief would be, as the OP/respondent is a developer actively engaging in the activity of developing the layouts and other real estate projects and also he involved in marketing of sites, lands etc., The Complainant after negotiation during the first week of February 2011 agreed to purchase the plots to be formed by OP for a sum of Rs.6,66,500/- including Rs.16,500/- towards registration of the plots. In this regard, MOU entered in to between the parties and the OP/respondent agreed to pay 3% interest per month for the invested money till the OP/respondent gets the individual khatha. In this regard, the Complainant has paid a sum of Rs.1 lakhs on 29.01.2011 drawn on HDFC Bank Ltd., Whitefield branch, Bengaluru and Rs.5,50,000/- drawn on the same bank on 05.02.2011 towards the advance sale consideration with an intention to purchase the plots. He had paid total sum of Rs.6,50,000/-. However, the OP/respondent went on giving evasive replies time on time and failed to refund the amount paid at the time of booking of the sites with interest. The Complainant by an e-mail dtd.23.09.2014 also demanded for registration of two plots or in the alternative to refund the amount along with interest and thereafter issued a legal notice dtd.15.10.2014 demanding registration of two plots or in the alternative to refund the amount with interest. The Complainant made inspection of plots, wherein found that the layout has not at all formed and not even roads have been formed, layout is not provided with drainage, water supply, electricity supply as promised. Under such circumstances he raised consumer complaint U/s.12 of CP Act, 1986 before the Commission below which was resisted by the OP/respondent contending that the Complainant is not a consumer. He never approached to purchase the sites, but on the other hand he took hand loan for improvement of his business and borrowed Rs.6,50,000/- through cheques, out of which he has repaid Rs.5 lakhs in between 09.03.2011 to 05.06.2013 and the dispute arose when the Complainant demanded exorbitant rate of interest. The Complainant has secured some of the documents including blank signed and sealed stamp papers and On-demand pro-note, 2 signed blank cheques, to gain illegally, fabricated the documents to convert the loan transaction as consumer dispute. In view of such rival contention taken, the Commission below hold an enquiry by receiving Ex-A1 to A8 documents, thereby recorded as the Complainant has failed to establish the alleged deficiency in service for not complying the terms and conditions of the MOU by the OP and held the complaint is not maintainable, as a result dismissed the complaint with no order as to cost.
3. Now this order is impugned in this appeal, on the grounds that the Commission below ought to have been noted that the cause of action for the Complaint is stated raised on 15.10.2014 when the Complainant issued notice to the OP demanding for registration of sale deed as promised by the OP. Sec.24A of the CP Act, 1986 prescribes for limitation within 2 years from the date of which the cause of action arisen and the Complainant has specifically stated that the cause of action for him arose on 15.10.2014 when the notice issued to the OP demanding for registration of the sale deed as promised was not at all considered by the Commission below and the findings recorded by the Commission below is contrary to the facts and law is liable to be dismissed.
4. The Commission heard the learned counsels and gone through the impugned order dtd.21.06.2017 passed by 4th Addl. DCDRF, Bengaluru in CC.No.1921/2014. Now, we have to examine, whether findings recorded by the Commission below could be maintained Or required to be interfered in exercise of powers vested U/s.15 of the CP Act, 1986, for the grounds set out by the appellant in the appeal memo?.
5. We could see description of OP in the complaint, as M/s.Galaxy Projects (India) Pvt., Ltd., represented by its Managing Director Sri.G.K.Ravi. In so far as this description, OP did not whisper, either denying or otherwise. Thus, it would itself make out prima facie as to its involvement in the field of forming layout and marketing of sites through advertisement. It is found from the complaint statement and enquiry that the complainant came to know about the sale of sites by forming layout by OP through advertisement, which is not at all denied by the OP. Thus, if we look in to the case from such angle, Op has to be consider as service provider and the complainant is consumer and the CP Act come in to the rescue of the complainant. However, this aspect of the matter was not at all considered by the Forum below, as such, we have to examine the case further keeping in mind the object of the Act.
6. It is the case of the Complainant that MOU entered in to between the parties in connection with the purchase of two sites bearing 40’x40’ & 30’x50’ feet respectively and he has paid Rs.1 lakh on 29.01.2011 and Rs.5,50,000/- on 25.02.2011 drawn on HDFC Bank Ltd., In so for as receipt of Rs.6,50,000/- through cheques is not denied by the OP. However, he has taken a defence that Rs.5 lakhs was re-paid in between 09.03.2011 to 05.06.2013 which in fact is not at all shown by the OP, since he has failed to give not only his affidavit evidence but any of the documents to substantiate such contentions, since impugned order discloses that copies of documents marked on behalf of OP as NIL, whereas the Complainant/appellant produced cheques dtd.29.01.2011 and 05.02.2011 as per Ex-A1 & A2, receipts dtd.13.01.2011 and 05.02.02011 as per Ex-A3 & A4, MOU dtd.05.02.2011 as per Ex-A5, final notice dtd.15.10.2014 and email dtd.05.10.2014 as per Ex-A6 & A7 and postal acknowledgement due dtd.20.10.2014 as per Ex-A8 respectively, which are not at all perceived in right perception by the Forum below since, the Complainant has raised consumer complaint in the matter of purchase of two sites bearing 40’x40’ & 30’x50’ for which he has paid Rs.6,50,000/- and the OP has failed to form the layout as promised under Ex-A5/MOU dtd.05.02.2011 and it appears to us misinterpreted the rate of interest found in MOU, all though it is 3% interest per month Commission below perceived it as 3% p.a. which has to be said contrary to the facts on record.
7. We have to bear in mind that, the deficiency in service on the part of OP has to be perceive from the contents of the complaint, version of the OP and the evidence placed on record by the parties as a whole and not in isolation. In other words picking here and there. However the Forum below failed to resolve the dispute between the parties to the complaint in right perception. No doubt it is true that the consumer complaint has to be decided summarily, since the object of the Act itself is to impart speedy remedy and the procedure to be adopted being summary, as such the Acts contemplated an additional benefits. In this regard, it would be appropriate to have a look on Sec.3 of the CP Act, 1986, which provides for “the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.” In other words ‘the remedy provided under the Act is an additional remedy besides those that may be available under other existing laws. The dispute between parties is so simple and not require any comprehensive trial alike a civil suit, as such same has to be held fits in under the purview of section 3 of the Act.
8. Yes it is true Sec.24 A provides for limitation period as to raise a consumer complaint. It provides for raising complaint within two years from the date on which the cause of action has arisen and Sub.Sec.2 of this section provides for even after such period prescribed, the Forum has given power to entertain after such period, if satisfies he had sufficient cause for not filing the complaint within such period. Thus, this aspect of the matter was not at all considered by the Forum below, all though Complainant has satisfies that cause of action for the complaint arose on 15.10.2014, when he has issued notice to the OP demanding for registration of the sale deed as promised by the OP. Further he has filed complaint on 15.11.2014, well within the limitation period prescribed U/s.24A(1) of the CP Act, 1986, was not all examined by the Forum below.
9. Further, in so far as rate of interest, we would observe herein, how much compensation has to be award and what rate of interest would to be award on the amount received by t
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he OP, is the sound discretion of the Forum below, is not at all perceived properly by the Forum below, resulting thereby recording of a wrong finding of the complaint case. 10. In view of such discussions, we are of the considered view that the impugned order passed by 4th Addl., DCDRC, Bengaluru, could not be maintained for the reasons recorded has to be held contrary to the facts, probability and law is liable to be set aside and the complaint required to be remanded back to the Commission below for fresh enquiry and decision in accordance with law. 11. Accordingly the appeal filed by the Complainant/appellant U/s.15 of the CP Act, 1986 is hereby allowed with no order as to cost. Consequently, remanded the Complaint Case No.1921/2014 to the Commission below to decide afresh affording opportunity of being heard to the parties and decide in accordance with law as early as possible. 12. Send a copy of this Order to the District Commission and parties.