Aishwarya Property Developers V/S Deepali joshi - Consumer Court Case

Karnataka

Bangalore Urban

cc/09/1541

Deepali joshi - Complainant(s)

Versus

Aishwarya Property Developers - Opp.Party(s)

08 Feb 2010

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. cc/09/1541

Deepali joshi						...........Appellant(s)
Vs.
Aishwarya Property Developers						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINTS FILED: 29.06.2009 DISPOSED ON: 08.02.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 08th FEBRUARY 2010 PRESENT :- SRI. B.S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT Nos.1540 & 1541/2009 COMPLAINT NO.1540/09 COMPLAINANT OPPOSITE PARTY Sri. Krishnarao Rangarao Joshi, S/o Late Rangarao Joshi, No.91, 6th Main Road, 38th Cross, Jayanagar, 5th Block, Bangalore 560 041. Present Address: No.228, 11th B Main Road, Classic Paradise Street, Begur, Bangalore South, Bangalore 560 068. V/s. M/s Aishwaryaa Diamond, No.119/18, 3rd Floor, 80 Road, Siddaiah Puranik Road, Near Pavithra Paradise, Basaveswara Nagar, Bangalore 560 079. Rep: by its Managing Partner, Sri. Srinivas A Naidu. Advocate: Sri. G. Purushotham COMPLAINT NO.1541/09 COMPLAINANT OPPOSITE PARTY Smt. Deepali Joshi, W/o Sri Mahesh Joshi, No.91, 6th Main Road, 38th Cross, Jayanagar, 5th Block, Bangalore 560 041. Present Address: No.228, 11th B Main Road, Classic Paradise Street, Begur, Bangalore South, Bangalore 560 068. V/s. M/s Aishwaryaa Diamond, No.135/20, 2nd Main Road, 28th Cross, 7th Block, Jayanagar, Bangalore 560 082. Rep: by its Managing Partner, Sri. R. Srinivas Choudary. Advocate: Sri. G. Purushotham O R D E R SRI. B.S. REDDY, PRESIDENT Complainants filed the respective complaints U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P) for refund of the advance amount paid towards purchase of the site with enhanced amount as agreed in terms of the agreement deed with interest at 18% p.a. along with compensation and litigation costs on the allegations of deficiency in service on the part of the OP. 2. The case of the complainant in complaint No.1540/09 is that on 20.02.2008 OP entered into an agreement to sell site No.908 measuring 30 X 50 for a consideration of Rs.3,00,000/- at the rate of Rs.200/- per sq feet with a buy back scheme agreeing re-purchase the same site after 9 months by paying Rs.60/- per sq feet appreciated value and executed the agreement deed. The complainant has paid the consideration amount of Rs.3,00,000/- through cheque to OP and obtained the receipt on 04.02.2008. After 9 months i.e., 20.11.2008; the complainant demanded to refund the amount of Rs.3,00,000/- with appreciated value at the rate of Rs.60/- per sq feet total Rs.90,000/- in all Rs.3,90,000/-, but the OP has not refunded the said amount. The complainant got issued notices to the OP but the OP has not complied demands and has not refunded the amount, hence the complaint. 3. The case of the complainant in complaint No.1541/09 is that on 14.03.2008 OP has entered into an agreement to sell site No.172 measuring 30 X 50 at the rate of Rs.390/- per sq feet and total amount of Rs.5,85,000/- with a buy back scheme agreeing re-purchase the same site after 6 months by paying enhanced value of Rs.50/- per sq feet. The complainant has paid Rs.1,95,000/- towards advance sale consideration through cheque dated 06.03.2008 and obtained the receipt dated 01.03.2008. After 6 months of the agreement, the complainant demanded OP to re-purchase the site with enhanced value by paying an amount of Rs.75,000/- enhanced value by repaying the sale consideration of Rs.1,95,000/-. Thus in all the complainant claimed in Rs.2,70,000/- for which, OP has issued cheque dated 15.10.2008, but the said cheque was bounced. On the request of the OP the said cheque was represented, but again the same was bounced. Inspite repeated demands and the notices issued, OP has not complied with the demands and paid the amount of Rs.2,70,000/-, hence the complaint seeking necessary reliefs. 4. In the versions filed in both these complainants; OP has admitted the fact of receipt of the amount from these complainants and also about the fact of agreement deeds being executed with buy back scheme. In the version filed in complaint No.1540/09 OP has undertaken that he will refund the amount received with 18% interest p.a. or to execute the sale deed in favour of the complainant. In complaint No.1541/09 OP has admitted the fact that he has issued the cheque for re-sale amount of Rs.2,70,000/-; due to heavy impact on the real estate business he failed to arrange the re-sale amount in time to the complainant. Further it is pleaded that OP has invested huge amount in the formation of layout, hence he could not pay amounts to the complainants. It is contended that the complaints are not maintainable as the transaction is of commercial nature; complainants are not Consumers as defined under the Consumer Protection Act, hence it is prayed to dismiss the complaints. 5. The complainants filed affidavit evidence to substantiate the complaint averments. The Managing Partner of OP filed affidavit evidence in support of defence version. Both the parties filed written arguments. 6. After going through the pleadings, the documents produced, affidavit evidence, written arguments and after hearing both the parties the following points arise for our consideration. Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OP? Point No.2:- Whether the complainants are entitled for the reliefs claimed? Point No.3:- To what Order? 7. We record our findings on: Point No.1:- Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 8. It is not in dispute that OP entered into an agreement sell sites and executed the agreement deeds in favour of the complainants, after receipt of the consideration mentioned therein with a buy back scheme agreeing to re-purchase the same sites by paying enhanced value as stipulated in the agreement deeds. OP has admitted its liability to refund the amount received in complaint No.1540/09 with interest at 18% p.a. Further OP has admitted in complaint No.1541/09 that cheque for Rs.2,70,000/- was issued towards re-sale amount in favour of the complainant, but due to heavy impact on the real estate business, it failed to arrange the amount in time. Thus from the version filed by the OP it becomes clear that OP is admitting its liability to refund the amount with interest at 18% p.a. 9. In the written arguments submitted OP has contended that the complainants are not consumers as defined under Section 2(1)(d) of the CP Act as there is a buy back scheme incorporated in the agreement deeds which provides the seller to buy back the plots with an appreciation value on the booking amount after certain period. Thus it is a commercial transaction; the complainants are not entitled to claim any reliefs in this Forum. In support of the same reliance has been placed on the principles laid down in Laxmi Engineering Works V/s P.S.G. Industrial Institute, AIR 1995 SC 1428 and Kalpavruksha Charitable Trust V/s Toshiniwal Brother Pvt Ltd., AIR 1999 SC 3356. In our view the principles laid down in the above two rulings are not applicable to the facts of these cases. While executing the agreement deeds OP has stipulated that condition of buy back scheme with an intention to re-purchase the sites from the complainants. Without there being registered sale deeds in favour of the complainants; the question of enforcing the buy back scheme does not arise. Moreover the complainants fairly submitted that they are not relying on the said stipulation of buy back scheme; they are confining the relief for refund of the consideration amount paid under the agreement deeds with interest at 18% p.a. Under these circumstances we are unable to accept the contention that the complainants are not consumers within the meaning of Section 2(1)(d) of Act. 10. The learned counsel for the OP contended that the transaction covered under the agreement deeds are governed by The Karnataka Protection of Interest of Depositors in financial Establishments Act 2004. The complainants have to approach the Special Court constituted under Section 10 of the said Act, seeking necessary reliefs. The said Act over rides other laws as per Section 19 of the Act. Therefore this Forum has no jurisdiction to entertain the complaint. In our view in the defence version no such defence regarding jurisdiction is taken. On the other hand OP admitted its liability and consented to refund the amount with interest. Section 3 of the CP Act clearly provides that the provisions of the Act are in addition to but not in derogation of the provisions of any other law for the time being in force. Therefore the remedy under the Act is in addition to other remedies provided under other Acts unless there is a clear bar. Therefore we are of the view that merely because the transaction covered under the agreement deeds falls within the provisions of the KPIDFE Act; it cannot be said that this Forum has no jurisdiction to entertain the complaints. 11. Clause 2 of the agreement deeds provides that the purchaser shall have the option of getting plots registered to his or her name or to sell under buy back scheme to the seller. The seller undertakes to buy back the plot with an appreciation value on the booking amount; after 9 months from the date of receipt of the amount paid at the time of booking of the plots. The complainants in terms of this clause demanded the OP to pay the amount paid under the agreement deeds with appreciation value as agreed under the buy back scheme. The complainants got issued legal notices demanding OP to comply the demand for refund the amount with appreciation value but OP failed to comply the same. Thus it becomes clear that the failure of the OP in complying the demands of the complainants to refund the amount with appreciation value of the plots under buy back scheme stipulated in the agreement deeds amounts to deficiency in service on the part of the OP. 12. The complainant has produced the copies of the order passed in similar matter in complaint No.2747/08 on the file of 1st Additional District Consumer Disputes Redressal Forum wherein the complaint has been allowed directing the OP to pay the consideration amount received under the agreement deed with appreciation value with interest at 9% p.a. In our view taking into consideration of all the facts and circumstances it is just and reasonable to direct the OP to refund the amount received under the agreement deeds with interest at 18% p.a. Accordingly we proceed to pass the following: O R D E R Both the complaints allowed in part. 1. In complaint No.1540/2009 OP is directed to pay an amount of Rs.3,00,000/- towards refund of the consideration amount with interest at 18% p.a. to the complainant from the date of receipt of the amount till the date of payment with litigation cost of Rs.2,000/-. 2. In complaint No.1541/2009 OP is directed to pay an amount of Rs.1,95,000/- towards refund of the consideration amount with interest at 18% p.a. to the complainant from the date of receipt of the amount till the date of payment with litigation cost of Rs.2,000/-. This order is to be complied within four weeks from the date of its communication. Send the copy of this order to both the parties free of cost. This original order shall be kept in the file of the complaint No.1540/2009 and a copy of it shall be placed in other connected file. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 08th day of February 2010) MEMBER MEMBER PRESIDENT Snm:

COMPLAINTS FILED: 29.06.2009 DISPOSED ON: 08.02.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 08th FEBRUARY 2010 PRESENT :- SRI. B.S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT Nos.1540 & 1541/2009 COMPLAINT NO.1540/09 COMPLAINANT OPPOSITE PARTY Sri. Krishnarao Rangarao Joshi, S/o Late Rangarao Joshi, No.91, 6th Main Road, 38th Cross, Jayanagar, 5th Block, Bangalore 560 041. Present Address: No.228, 11th B Main Road, Classic Paradise Street, Begur, Bangalore South, Bangalore 560 068. V/s. M/s Aishwaryaa Diamond, No.119/18, 3rd Floor, 80 Road, Siddaiah Puranik Road, Near Pavithra Paradise, Basaveswara Nagar, Bangalore 560 079. Rep: by its Managing Partner, Sri. Srinivas A Naidu. Advocate: Sri. G. Purushotham COMPLAINT NO.1541/09 COMPLAINANT OPPOSITE PARTY Smt. Deepali Joshi, W/o Sri Mahesh Joshi, No.91, 6th Main Road, 38th Cross, Jayanagar, 5th Block, Bangalore 560 041. Present Address: No.228, 11th B Main Road, Classic Paradise Street, Begur, Bangalore South, Bangalore 560 068. V/s. M/s Aishwaryaa Diamond, No.135/20, 2nd Main Road, 28th Cross, 7th Block, Jayanagar, Bangalore 560 082. Rep: by its Managing Partner, Sri. R. Srinivas Choudary. Advocate: Sri. G. Purushotham O R D E R SRI. B.S. REDDY, PRESIDENT Complainants filed the respective complaints U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P) for refund of the advance amount paid towards purchase of the site with enhanced amount as agreed in terms of the agreement deed with interest at 18% p.a. along with compensation and litigation costs on the allegations of deficiency in service on the part of the OP. 2. The case of the complainant in complaint No.1540/09 is that on 20.02.2008 OP entered into an agreement to sell site No.908 measuring 30 X 50 for a consideration of Rs.3,00,000/- at the rate of Rs.200/- per sq feet with a buy back scheme agreeing re-purchase the same site after 9 months by paying Rs.60/- per sq feet appreciated value and executed the agreement deed. The complainant has paid the consideration amount of Rs.3,00,000/- through cheque to OP and obtained the receipt on 04.02.2008. After 9 months i.e., 20.11.2008; the complainant demanded to refund the amount of Rs.3,00,000/- with appreciated value at the rate of Rs.60/- per sq feet total Rs.90,000/- in all Rs.3,90,000/-, but the OP has not refunded the said amount. The complainant got issued notices to the OP but the OP has not complied demands and has not refunded the amount, hence the complaint. 3. The case of the complainant in complaint No.1541/09 is that on 14.03.2008 OP has entered into an agreement to sell site No.172 measuring 30 X 50 at the rate of Rs.390/- per sq feet and total amount of Rs.5,85,000/- with a buy back scheme agreeing re-purchase the same site after 6 months by paying enhanced value of Rs.50/- per sq feet. The complainant has paid Rs.1,95,000/- towards advance sale consideration through cheque dated 06.03.2008 and obtained the receipt dated 01.03.2008. After 6 months of the agreement, the complainant demanded OP to re-purchase the site with enhanced value by paying an amount of Rs.75,000/- enhanced value by repaying the sale consideration of Rs.1,95,000/-. Thus in all the complainant claimed in Rs.2,70,000/- for which, OP has issued cheque dated 15.10.2008, but the said cheque was bounced. On the request of the OP the said cheque was represented, but again the same was bounced. Inspite repeated demands and the notices issued, OP has not complied with the demands and paid the amount of Rs.2,70,000/-, hence the complaint seeking necessary reliefs. 4. In the versions filed in both these complainants; OP has admitted the fact of receipt of the amount from these complainants and also about the fact of agreement deeds being executed with buy back scheme. In the version filed in complaint No.1540/09 OP has undertaken that he will refund the amount received with 18% interest p.a. or to execute the sale deed in favour of the complainant. In complaint No.1541/09 OP has admitted the fact that he has issued the cheque for re-sale amount of Rs.2,70,000/-; due to heavy impact on the real estate business he failed to arrange the re-sale amount in time to the complainant. Further it is pleaded that OP has invested huge amount in the formation of layout, hence he could not pay amounts to the complainants. It is contended that the complaints are not maintainable as the transaction is of commercial nature; complainants are not Consumers as defined under the Consumer Protection Act, hence it is prayed to dismiss the complaints. 5. The complainants filed affidavit evidence to substantiate the complaint averments. The Managing Partner of OP filed affidavit evidence in support of defence version. Both the parties filed written arguments. 6. After going through the pleadings, the documents produced, affidavit evidence, written arguments and after hearing both the parties the following points arise for our consideration. Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OP? Point No.2:- Whether the complainants are entitled for the reliefs claimed? Point No.3:- To what Order? 7. We record our findings on: Point No.1:- Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 8. It is not in dispute that OP entered into an agreement sell sites and executed the agreement deeds in favour of the complainants, after receipt of the consideration mentioned therein with a buy back scheme agreeing to re-purchase the same sites by paying enhanced value as stipulated in the agreement deeds. OP has admitted its liability to refund the amount received in complaint No.1540/09 with interest at 18% p.a. Further OP has admitted in complaint No.1541/09 that cheque for Rs.2,70,000/- was issued towards re-sale amount in favour of the complainant, but due to heavy impact on the real estate business, it failed to arrange the amount in time. Thus from the version filed by the OP it becomes clear that OP is admitting its liability to refund the amount with interest at 18% p.a. 9. In the written arguments submitted OP has contended that the complainants are not consumers as defined under Section 2(1)(d) of the CP Act as there is a buy back scheme incorporated in the agreement deeds which provides the seller to buy back the plots with an appreciation value on the booking amount after certain period. Thus it is a commercial transaction; the complainants are not entitled to claim any reliefs in this Forum. In support of the same reliance has been placed on the principles laid down in Laxmi Engineering Works V/s P.S.G. Industrial Institute, AIR 1995 SC 1428 and Kalpavruksha Charitable Trust V/s Toshiniwal Brother Pvt Ltd., AIR 1999 SC 3356. In our view the principles laid down in the above two rulings are not applicable to the facts of these cases. While executing the agreement deeds OP has stipulated that condition of buy back scheme with an intention to re-purchase the sites from the complainants. Without there being registered sale deeds in favour of the complainants; the question of enforcing the buy back scheme does not arise. Moreover the complainants fairly submitted that they are not relying on the said stipulation of buy back scheme; they are confining the relief for refund of the consideration amount paid under the agreement deeds with interest at 18% p.a. Under these circumstances we are unable to accept the contention that the complainants are not consumers within the meaning of Section 2(1)(d) of Act. 10. The learned counsel for the OP contended that the transaction covered under the agreement deeds are governed by The Karnataka Protection of Interest of Depositors in financial Establishments Act 2004. The complainants have to approach the Special Court constituted under Section 10 of the said Act, seeking necessary reliefs. The said Act over rides other laws as per Section 19 of the Act. Therefore this Forum has no jurisdiction to entertain the complaint. In our view in the defence version no such defence regarding jurisdiction is taken. On the other hand OP admitted its liability and consented to refund the amount with interest. Section 3 of the CP Act clearly provides that the provisions of the Act are in addition to but not in derogation of the provisions of any other law for the time being in force. Therefore the remedy under the Act is in addition to other remedies provided under other Acts unless there is a clear bar. Therefore we are of the view that merely because the transaction covered under the agreement deeds falls within the provisions of the KPIDFE Act; it cannot be said that this Forum has no jurisdiction to entertain the complaints. 11. Clause 2 of the agreement deeds provides that the purchaser shall have the option of getting plots registered to his or her name or to sell under buy back scheme to the seller. The seller undertakes to buy back the plot with an appreciation value on the booking amount; after 9 months from the date of receipt of the amount paid at the time of booking of the plots. The complainants in terms of this clause demanded the OP to pay the amount paid under the agreement deeds with appreciation value as agreed under the buy back scheme. The complainants got issued legal notices demanding OP to comply the demand for refund the amount with appreciation value but OP failed to comply the same. Thus it becomes clear that the failure of the OP in complying the demands of the complainants to refund the amount with appreciation value of the plots under buy back scheme stipulated in the agreement deeds amounts to deficiency in service on the part of the OP. 12. The complainant has produced the copies of the order passed in similar matter in complaint No.2747/08 on the file of 1st Additional District Consumer Disputes Redressal Forum wherein the complaint has been allowed directing the OP to pay the consideration amount received under the agreement deed with appreciation value with interest at 9% p.a. In our view taking into consideration of all the facts and circumstances it is just and reasonable to direct the OP to refund the amount received under the agreement deeds with interest at 18% p.a. Accordingly we proceed to pass the following: O R D E R Both the complaints allowed in part. 1. In complaint No.1540/2009 OP is directed to pay an amount of Rs.3,00,000/- towards refund of the consideration amount with interest at 18% p.a. to the complainant from the date of receipt of the amount till the date of payment with litigation cost of Rs.2,000/-. 2. In complaint No.1541/2009 OP is directed to pay an amount of Rs.1,95,000/- towards refund of the consideration amount with interest at 18% p.a. to the complainant from the date of receipt of the amount till the date of payment with litigation cost of Rs.2,000/-. This order is to be complied within four weeks from the date of its communication. Send the copy of this order to both the parties free of cost. This original order shall be kept in the file of the complaint No.1540/2009 and a copy of it shall be placed in other connected file. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 08th day of February 2010) MEMBER MEMBER PRESIDENT Snm: