Complainant/s:              1. Sri. Rajashekhar S/o Chandrashekhar

                                        Daggi,  Age: 40 Years, Occ: Service,

                                               R/o Betgeri,   Taluk & Dist:Gadag.

                                                (Rep. by Sri.B.G.Managuli, Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SMT. YASHODA BHASKAR PATIL, WOMAN MEMBER:

The complainant has filed the complaint U/Sec.35 (1) of the C.P. Act, 2019, seeking relief against the Ops for refund of the amount deposited towards registration of plot for a sum of Rs.2,31,000/-  @ 18% interest p.a.,  Rs.1,00,000/- towards mental agony and cost of  litigation.

The brief facts of the complaint are as under:

         2.   Complainant has stated that, he entered into an agreement on 01.08.2013 with Ops “Shri. Veerabhadreshwar Developers Presents” for booking a plot No.25, in land bearing R.S.No.164 with an extent of 5 acres at Betgeri village, Gadag Taluk. The Ops promised the complainant that they would draw the map and convert the land into plots as per scheme and hand over the plot No.25, to the complainant.  The complainant has paid a sum of Rs.20,000/- on 01.08.2013 as initial payment, as per agreement for which the Ops have not acknowledged any receipt. For the remaining amount the complainant was supposed to pay a sum of Rs.6,500/- per month as installment towards the plot which amounts to a sum total of Rs.2,31,000/-.  Accordingly, the complainant has paid regular installments towards the plot till 17.02.2015  for which the Ops have issued receipts.  Similarly, the complainant has paid a sum of Rs.81,420/- on 18.07.2018 to Ops through his saving bank account by way of NEFT for which the OPs have not issued any receipts.        The complainant has repeatedly requested the OPs regarding the conversion of land into NA and KGP, but the OPs have not given any satisfactory reply.  Therefore, the complainant stopped paying the further installments from 18.07.2018. The complainant repeatedly requested the Ops to return back the money paid towards the Plot, but the Ops deferred the same on one or other ground.  The OPs  failed to repay the amount which lead to an  apprehension that the Ops will gulp the said amount. On 15.12.2021 complainant personally met the OPs and requested them either to return the amount or accept the remaining balance amount towards plot and register the plot in the name of complainant. But, the Ops once again dozed the complainant and have not acted as per the agreement executed on 01.08.2013.  Therefore, they have committed the deficiency of service. Finally, the complainant got issued a legal notice through his counsel on 29.01.2022 asking for repayment of the amount already paid towards the plot. For which the OPs have replied, but which is not satisfactory. Hence, filed this complaint.  

3. After registering the complaint, notices were issued, OP No.1 appeared through his counsel and notice of OP No.2 is returned with an endorsement as un-claimed and remained absent. OP No.1 has not chosen to file written version within the statutory period. Later Op No.1 filed written version and I.A. No.2 U/Sec.151 of C.P.C, same came to be dismissed as written version filed is beyond statutory period of  45 days and written version is not taken on record.

          4. To prove the case, complainant filed affidavit evidence and got examined as PW-1 and documents were marked as Ex.C-1 to
Ex.C-27.

5.       Heard the arguments on both sides and counsel for Op No.1 has filed written arguments.

          6.       The points for our consideration arose are as under:

          i)        Whether the complainant proves deficiency of                        service committed by the Ops?

         ii)       Whether the complainant is entitled for the                            relief as sought for?

          iv)      What order?

          7.       Our findings on the above points are as under:   

                   Point No.1: In the affirmative

                   Point No.2: In the partly affirmative

                   Point No.3: See the  final order.

REASONS

          8.       Point No.1 & 2:- The points are taken together to avoid the repetition of facts.  The learned counsel for the complainant argued that, as per evidence of PW-1 and Ex.C-1 to Ex.C-27 complainant has proved the case. Learned counsel for Op No.1 argued that, relief is barred by limitation and this Op has executed a relinquish deed in favour of Op No.2 and vice versa, therefore no deficiency of service is committed by the Op No.1.

          9. On careful perusal of the materials placed before us, the complainant has filed the affidavit and reiterated the contents of the complaint. The complainant states that, he entered into an agreement on 01.08.2013 with Ops “Shri. Veerabhadreshwar Developers Presents” Amrut Nagar, for booking plot No.25in land bearing R.S.No.164 with an extent of 5 acres at Betgeri village, Gadag Taluk. The Ops promised the complainant that they would draw the map and convert the land into plots as per scheme and hand over the plot No.25 to the complainant.  The complainant has paid a sum of Rs.20,000/- on 01.08.2013 as initial payment for which the Ops have not acknowledged the receipt and for the remaining amount the complainant was supposed to pay a sum of Rs.6,500/- per month as installment towards the plot which amounts to a sum total of Rs.2,31,000/-.  Accordingly, the complainant has paid regular installments towards the plot till 17.02.2018 and the Ops have issued receipts. Similarly, the complainant has paid a sum of Rs.81,420/- on 18.07.2018 to Ops through his saving bank account by way of NEFT for which the OPs have not issued any receipt.  The complainant has repeatedly requested the OPs regarding the conversion of land into NA and KGP, but the OPs have not given any satisfactory reply. Therefore, the complainant stopped paying  further installments from 18.07.2018. The complainant repeatedly requested the Ops to return back the money paid towards the Plot, but the Ops deferred the same on one or other ground.  The OPs failed to repay the amount which lead to an apprehension that the Ops will gulp the said amount.  On 15.12.2021 complainant personally met Ops and requested them either to return the amount or accept the remaining balance amount towards plot and register the plot in the name of complainant. But, the Ops once again dozed the complainant and have not acted as per the agreement executed on 01.08.2013.  Therefore, they have committed the deficiency of service. Finally, the complainant got issued a legal notice through his counsel on 29.01.2022 asking for repayment of the amount already paid towards the plot. For which the OP No.1 has replied, but the same is not satisfactory.

          10. Ex.C-18 agreement dtd:01.08.2013 reveals that, Ops have entered into an agreement to sell the plot No.25 in the name and style of “Sri. Virabhadreshwar Developers Presents” Amrut Nagar, Betageri-Gadag  and both Ops have put their signature. Ex.C-1 to Ex.C-17 are the receipts issued by partners on behalf of Shri. Veerabhadreshwar Developers Presents, Amrut Nagar reveals that, the complainant has paid an installment of  Rs.6,500/- each and Ex.C-27 Passbook reveals that on 18.07.2018 Rs.81,420/- is transferred through NEFT to Sri. Manjappa Havno. Ex.C-19 legal notice is issued to Ops, Ex.C-20 to Ex.C-23 are postal receipts and Postal acknowledgments reveal that, notice are served on Ops, Ex.C-24, Ex.C-25 Postal envelops retuned as addressee left, Ex.C-26 is reply notice issued by OP No.1 counsel to complainant counsel. So, affidavit evidence of PW-1 and Ex.C-1 to  Ex.C-27 are remained unchallenged, not disputed by Ops as they have not chosen to file their written version within the statutory period.

          11. However, learned counsel for Op No.1 filed written arguments and reiterated the contents of written version which is filed, beyond the statutory period. The main contention is that, complaint is barred by limitation, as there is a 1 years 5 months 23 days (541 days), as he has failed to pay three installments, the name of the said member would not be drawn and would be deleted from the scheme and after draw the amount will be refunded to the member after deducting 30% amount which is one of the clause in the agreement. Ex.C-18 the agreement dtd:01.08.2013 initial amount of Rs.20,000/- towards the plot was already paid is not disputed by the Ops and Ex.C-1 to Ex.C-17 receipts reveal that complainant has paid 17 installments from 13.08.2013 till 17.02.2015 and the last installment Rs.81,420/- is paid by the complainant on 18.07.2018. In the passbook last payment made is in favour of OP No.2 Manjappa it is specifically mentioned as paid through NEFT. So, the complaint is filed in the year 2022. But Ops have not taken any action against the complainant, who failed to pay the remaining installments. They have not issued in writing reminder or any legal notice issued to the complainant for nonpayment of installments. Op No.1 is not disputing the agreement executed dtd:01.08.2013 Ex.C-18, the complainant as a member and having paid the installments. Complainant stated that, as Ops did not furnish information regarding NA and KGP, they did not pay the remaining installments. As Ops have not acted as per their own agreement conditions, they were not stopped from issuing any reminder or legal notice to the complainant. The agreement is binding on the both the parties. OPs have not opted to take any action for nonpayment of further installments, therefore the cause of action is continued till the notice is issued by the complainant. Even as per Supreme Court direction, the Hon’ble NCDRC issued a circular on 14.01.2022 exempting the period from 15.03.2020 to 28.02.2022 due to Covid-19 Pandemic.

          The learned counsel for complainant relying a decision in IV (2012) CPJ 36 (NC) Raghava Estates Ltd. V/s Vishnupuram colony Welfare Association & Anr.

          Wherein, the Hon’ble National Commission, New Delhi held as under:-

          “(ii) Consumer Protection Act, 1986 - Sec.24-A, 21(b)-Limitation-Where there is immovable property and amenities promised by opposite party were not provided, it can be construed as continuing cause of action and it cannot be said to be barred by time”.

          Further, relying a decision in IV (2016) CPJ 546 (NC) Rajgopal Bhanda Kiran Kumar Vanajakshi Bhanda Tarun Kumar V/s Venkatesh

          Wherein, the Hon’ble National Commission, New Delhi held as under:-

          “Consumer protection Act, 1986 – Sections 2 (1) (g), 21(b) – Housing – Cancellation of allotment – Irregularities in Scheme – Alleged default in payment of installment – Deficiency in service District Form dismissed complaint – Sate Commission partly allowed appeal- Hence, revision – Complainants had made bona fide attempt to pay entire balance sale consideration but Op had failed to accept the same in spite of fact that legal notice dated:02.06.2010 and reply notice is dated 14.06.2010 as the scheme started on 17.06.2006 and ended 55 months thereafter, i.e., on 17.12.2010;  that Op had made false statement that no plots available whereas only 9 plots were sold land 8 sale deeds filed here – These sites were booked by complainants for purpose of having a shelter over their heads – Deficiency proved – Op is directed to register the site – Directions issued”.

           Facts, circumstances and ratio of the above decisions are aptly applicable with case on hand.

So, there is no delay in lodging the complaint as continuing cause of action and it cannot be said to be barred by time.

          12. Further, OP No.1 contended that, on 23.05.2016 a relinquish deed and on 24.05.2016 agreement was executed between both the Ops, Op No.1 left the “Shri. Veerabhadreshwar Developers Presents” and Op No.2 is only responsible for the remaining transaction. Op No.1 has produced the relinquish deed, and the copies of sale deeds, but they have are not marked as written version was not filed within statutory period. Even, if it is presumed that, after executing the said relinquish deed by OP No.1 in favour of OP No.2 and agreement vice versa it is not binding upon the complainant. The said relinquish deed executed by Ops among themselves on 23.05.2016 and 24.05.2016, the complainant is not under obligation, as he is not a party to this said relinquish deed. The Ops cannot impose something on the complainant to which he has no knowledge. As per Ex.C-18 the agreement executed on 01.08.2013 is between the complainant and both OPs and all have put their signature and is not disputed by Ops. Similarly, the relinquish deed executed between OP No.1 & OP No.2 is for their own mutual interest, but  they cannot impose the same on the complainant, as there is no  privity of contract between the complainant and Ops, it is not in the interest of the complainant. Therefore Op No.1 cannot shrug his responsibility and he is also liable to pay the compensation.

          13. The conduct of the OPs can be perused after going through the document Ex.C-18 dtd:01.08.2013, Ops at the time of entering into the said agreement with the complainant were not even the owner of the said property Sy. No.164 and yet they have received advance money as installments from public and the complainant also, who had booked the  said plot. It is construed through the documents that, the Ops from the inception itself had deceptive intention and the agreement which they have entered into with the complainant itself is
void-ab-initio. Similarly, another document copy of sale deeds produced by Op No.1 the registered sale deed reveals that, both Ops have   purchased the said land Sy. No.164 on 24.01.2014 after a year the agreement dtd:01.08.2013 was entered into and immediately the Ops sold the said land in favour of one Smt. Vanita Ashok Jain on 07.03.2014 within a period of two months of purchase. The most important thing to be noted is that, after purchase and sale of the property in the year 2014 the Ops have entered into a relinquish deed on 23.05.2016 after a period of two years were the said land in dispute itself is not existing as it was  already sold out.   Therefore, the question of entering into relinquish deed does not arise. The Ops had agreed and promised to sell the site to the complainant, but they neither got it converted into NA and obtained KGP, but instead immediately after purchase of the said land sold it within two months on 07.03.2014 and still kept on receiving the installment amount from the complainant till 17.02.2015 for which the Ops have already issued receipts Ex.C-1 to Ex.C-17. Hence, Ops have not acted as per the agreement Ex.C-18 which is binding on both the parties and the Ops have deceived the complainant and many such others without converting the sites as agreed.  Thus, complainant has proved that, Ops have committed the deficiency of service.

          14. For the above, complainant has proved that, he is entitled for an amount of Rs.20,000/- which he has paid initially for booking of plot as per Ex.C-18 and as per receipts Ex.C-1 to Ex.C-17 and passbook Ex.C-27  a total sum of Rs.2,11,920/-. The complainant has not produced the receipt for installment No.3 & 4. But the Ops have issued receipt for installment No.5. So, it is presumed that, the Ops have received the 3 & 4 installments of Rs.6,500/- each. So, complainant has paid in all Rs.2,24,920/-. Complainant is claiming interest at the rate of 18 % p.a. which is on higher side.  Therefore, it is proper to award interest @ 9% p.a. from the date of complaint till realization. Complainant has also suffered mental agony for a longer period i.e. from the year 2013 till date, with a dream that he would get the plot and build the house, but his dream remained un-fulfilled therefore, the complainant is entitled for a sum of Rs.50,000/- towards mental agony and Rs.25,000/- towards cost of the litigation. Accordingly, we answer Point No.1 in the affirmative and point No.2 in the partly affirmative.

          15.    POINT NO. 3: In the result, we pass the following:

//O R D E R//

              The complaint filed U/Sec.35 (1) of the Consumer Protection Act, 2019, is partly allowed against Ops.

Complainant is entitled from OP No.1 & 2a sum of Rs. 2,24,920/-. with an interest at 9% p.a. from the date of complaint till realization.

Further, the complainants are entitled for Rs.50,000/- towards mental agony and Rs.25,000/- towards cost of litigation.

Op No.1 & 2 are jointly and severally liable to pay the said amount. Ops are directed to pay the entire claim amount to the complainant within two months from the date of this order.

Office is directed to send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, directly on computer corrected and then pronounced by us in the Open Commission on this  14^th day of December-2022)

,            

(Shri. D.Y. Basapur)                                    (Smt.Yashoda Bhaskar. Patil)

     PRESIDENT                                             WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

   PW-1: . Sri. Rajashekhar S/o Chandrashekhar Daggi,  

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.P-1 to 17: Original receipts.

Ex.P-18: Agreement.

Ex.P-19: Legal notice

Ex.P-20 & 21: Postal receipts.

Ex.P-22& 23:Postal acknowledgments.

Ex.P-24 & 25: Addressee left not known cover returned.

Ex.P-26:Reply notice.

Ex.P-27: Original bank Passbook.

EVIDENCE ON BEHALF OF OPs:

                    -NIL-

DOCUMENTS ON BEHALF OF OPs:

                   -NIL-

 (Shri. D.Y. Basapur)                                    (Smt.Yashoda Bhaskar. Patil)

     PRESIDENT                                             WOMAN MEMBER