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/09/1771
Venkatesh Deshpande,
...........Appellant(s)
Vs.
Blue Valley properties pvt limited
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
COMPLAINT FILED: 27-07-2009 DISPOSED ON: 23-04-2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) DATED THIS THE 23RD APRIL 2010 PRESENT :-SRI. B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT NO.1771/2009 COMPLAINANTS 1.Mr.Venkatesh Deshpande, Aged about 38 Years, S/o.Late Sri.Vasudev Deshpande 2. Mrs.Gowri Deshpande, Aged about 34Years, W/o.Mr.VenkateshDeshpande Both residing At: No.44/20/2, 9th Main, 5th Cross, Sadshivanagar, Bangalore-560080. Advocate Sri. V/s. OPPOSITE PARTIES M/s.Blue Valley Properties Pvt.Ltd., Blue Valley Celestial No.42, Nandidurga MainRoad, Jayamahal Extension, Bangalore 560 046. Rep. by its Managing Director Mr.K.Suryanarayana Raju, Aged about 38 years, S/o.LateK.Narasimha 2.Mr.K.Surayanarayana Raju, Aged about 38 years, S/o.Late K.Narasimha, Managing Director, M/s.Blue Valley Properties Pvt.Ltd., Blue Valley Celestial No.42, Nandidurga MainRoad, Jayamahal Extension, Bangalore 560 046. Advocate Sri. O R D E R SRI. B.S.REDDY, PRESIDENT The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction against Opposite Parties (herein after called as OP) to pay an amount of Rs.6,95,406/- with interest at 18% p.a and compensation of Rs.1,15,800/- along with litigation cost of Rs.10,000/- on an allegations of deficiency in service on the part of the OPs. The case of the complainant to be stated in brief is that:- 2. They entered into a purchaser agreement dated 27-05-2007 with the OPs for purchasing a site measuring 2400 Sq. Ft. at the rate of Rs.470/- per Square Feet. At a total cost of Rs.12,25,000/- proposed to be formed in schedule C property shown in the agreement and paid total advance consideration of Rs.8,46,000/- through cheques on various dates. It is stated that the OPs failed to take up the development of the project, the complainants were forced to purchase a plot and build up a first home in Kodigehalli Bangaloreand approached the OPs with letter dated 07-02-2009 informing OPs that they would like to liquidate the invested amount till that dated i.e., an amount of Rs.8,46,000/- and opted for clause III-1. of the Purchasers Agreement dated 27-05-2007 where in the complainant are entitled for refund of the amount paid to the OPs along with interest at 18% p.a. OPs issued 3 post dated cheques towards repayment of that amount of Rs.8,46,000/- at the request of the OPs the cheque bearing No.142604 of Rs.2,00,000/- dated 07-04-2009 was returned and OPs issued a demand draft for the said amount and the same has been encashed. Subsequently cheque bearing No.142605 for Rs.3,00,000/- was returned to the OPs as per the request and demand draft for only Rs.2,00,000/- was issued and informed the complainants that an amount of Rs.1,00,000/- would be paid in the office of the OPs on 25-05-2009. The complainant visited the office of OPs on 25-05-2009, the OPs deliberately and intentionally made the complainants to wait and also abused and threatened that they would delay the refund of the balance amount. OPs have agreed to refund the amount within 30 to 60 days as per the terms of the Purchasers Agreement and that period of 60 days had lapsed on 07-04-2009. The complainant got issued legal notice 25-05-2009 calling upon the OPs to pay balance amount along with interest at 18% p.a. from the respective dates of the amount by the OPs as stipulated in the Purchaser Agreement. In reply notice dated 08-06-2009 OPs have been accepted their liability for payment of the amount. OPs have agreed to repay the amount with interest at 18% p.a. as stipulated in the contract. The total amount due by the OPs is Rs.6,93,906/- as under: Sl. No. Description Amount in Rs. 1. Total installments amount paid by the Complainant 8,46,000/- 2. Amount received from the Opposite Parties. 4,00,000/- 3. Interest of 18% on the payments made from the dates of payments till the date of the notice 2,23,121/- 4. Difference of interest on amounts from the date of Notice till the date of filing 19,785/- 5. Notice charges 5,000/- Total Amount 6,93,906/- The complainant felt deficiency in service on the part of the OPs in not repaying the amount due and filed the complaint. 3. On appearance OPs filed version admitting that the complainants entered into an agreement of sale date 25-07-2007 for purchase of plot measuring 2400 Square Feet for a valid sale consideration. It is contended that subsequent to the said agreement they raised different voice as they are not interested in the purchase of the said property and as per clause XV of the agreement on sale specifically stated that in the event of any dispute between the parties of the said agreement shall be referred to the arbitration and without following the terms and conditions, the complainants are demanding to return the advance amount and the OP has invested the amount to the development of the plots in the said layout. It is contended that the sale consideration was paid on different occasion the OPs have repaid the amount of Rs.4,00,000/-. OP has intention to make the delay for repaying the advance amount, OP has been clearing the amount as agreed. The complainant has violated the terms and conditions of the agreement of sale by not following the specific provision with respect to arbitration clause. Therefore the complainants have no rights to seek any relief from this Forum and this Forum has no jurisdiction entertain the above matter. Hence it is prayed to dismiss the complaint with exemplary costs. 4. In order to substantiate the complaint averments complainant No.1 filed affidavit evidence and produced documents with list. Further additional documents were produced on 06-01-2010 with memo and list. OP-2 Managing Director of OP-1 filed affidavit evidence in support of defence version and produced documents with memo on 08-12-2009 and additional documents on 26-09-2009 and 02-03-2010. 5. Arguments heard on both sides. Points that arise for our consideration are:- Point No. 1 :- Whether the complainant has Proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 6. 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 7. At the outset it is not in dispute that the complainants entered into a Purchasers Agreement dated 25-07-2007 with OPs for purchasing a site measuring 2400 square feet at the rate of Rs.470 per square feet, on a total cost of Rs.12,25,000/- proposed to be formed in schedule C property shown in the agreement deed known as SMILEE ANAND VANA PHASE-III and paid total advance consideration of an amount of Rs.8,46,000/- through cheques on various dates. Subsequently the complainants approached the OPs with a letter dated 07-02-2009 informing that there would like to liquidate the invested amount till that date i.e. an amount of Rs.8,46,000/- opted in clause III-1. of the Purchasers Agreement where in the complainants are entitled for the refund of the amount with interest at 18 % p.a. OPs refunded an amount of Rs.4,00,000/-out of Rs.8,46,000/-. Now the complainants claims the balance amount of Rs.4,46,000/- with interest at the rate of 18% p.a. as agreed. 8. Deed on Purchasers Agreement provides: the terms and conditions of the transaction entered into between the parties Clause III of the agreement provides benefit to the purchasers stating that the Developer shall pay or give to the purchaser any one of the following benefit out of 3 options: 1. Purchaser can take back his money at any time with an interest of 18% or 2. ----------------------- 3.------------------------ The purchaser is free to choose any of the above mentioned 3 options. The complainants have opted to take back their money with interest at 18% p.a. Clause XV of the agreement provides: arbitration stating that in the event of any disputes between the parties relating to the matters mentioned above, the same shall be resolved through arbitration as per the provision of the Arbitration and Conciliation Act of 1996 and the statutory modification thereof. The main defence of OPs is that in view of the above clause regarding arbitration the complainant without complying the arbitration clause are not entitled to claim relief in this Forum and this Forum has no jurisdiction to entertain the complaint. In our view as per the principles laid in AIR 2000 SC 2008 Skypak Couriers Ltd Vs. Tata Chemicals Ltd. Apex Court held that even if there is an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. In I (1999) CPJ 67 (NC) Udaipur Cement Works Vs. Punjab Water Supply and Sewage where in National Commission held that mere existence of the arbitration clause should not come in the way of an aggrieved party from seeking legitimate relief under Consumer Protection Act which is a special piece of legislation to protect the interest of the consumer notwithstanding the other laws in force. 9. in view of the principles laid down in the above rulings there is no merit in the contention that in view of the existence of the arbitration clause in the agreement the complainants are not entitled to approach this Forum seeking the relief without approaching the arbitrator for resolving the dispute. 10.OPs have produced the documents like conversion orders, copy of the sale deed and other documents to show that the layout is fully developed and ready to allotments of the site. In our view since the Purchasers Agreement provides the options to the purchasers to get back the money with interest and the complainants have opted for that option, as such even if the layout proposed is fully formed and sites are ready to be registered, the complainant cannot be compelled to pay the balance consideration and get the sites registered. 11. Out of total amount of Rs.8,46,000/- towards advance sale consideration Ops have refunded an amount of Rs.4,00,000/- OPs have agreed to pay interest at 18% p.a as per the agreement entered into while refunding the amount. The complainants have claimed the balance consideration of Rs.4,46,000/- and interest at 18% p.a. Interest at 18% p.a. on the amount of Rs.8,46,000/- from the respective dates on payment till the date of notice is claimed at Rs.2,23,121/-. Further the complainants have claimed an amount of Rs.19,785/- as difference of interest on amount from the date of notice i.e., from 25-05-2009 till the date of filing the complaint i.e., 27-07-2009. But this figure appears to be not correct, the notice on the balance consideration of an amount of Rs.4,46,000/- from the date of notice till the date of filing works out of Rs.13,826/- the complainants are entitled for the said amount. The notice charges amount on Rs.5,000/- and compensation of Rs.1,15,800/- claim is without any basis the cost of litigation claim is at higher side. OPs are not denying balance consideration of Rs.4,46,000/- with interest at 18% p.a. as agreed. The complainants are not entitled for the compensation claimed, as interest agreed on 18% p.a. on advance amount would be sufficient to hold that the complainants are being compensated. As per the terms of the agreement OPs agreed to refund amount within 30 to 60 days lapsed and 07-04-2009 is claimants claimed for refund of the amount with letter dated 07-02-2009. It was not confirmed on the part of the OPs in not refunding the entire amount as agreed within stipulated period. The complainant got issued legal notice dated 25-05-2009, for the said notice OPs replied on 08-06-2009 accepting their liability to repay the amount due. On account of OPs hostile attitude the complainants were made to approach this Forum seeking necessary reliefs. The act of the OPs in not refunding the entire advance consideration amount amounts to deficiency in service on the part of the OPs. The principles laid down in the order 2010 Karnataka page 12 K.Venkatappa Vs.Sundaresh.B.M of relied has been OPs cannot be made applicable to the facts of this case. Under these circumstances we are of the view that the complainants are entitled for the total sum of Rs.6,82,501/- as under: Sl. No. Description Amount In Rs. 1. The balance consideration amount repayable 4,46,000/- 2. Interest of 18% on the advance repayable of Rs.8,46,000/- from respective date of payment till the date of notice 2,23,121 3. Date of interest i.e., 25-05-2009 till the date of filing i.e., 27-07-2009 13,826/- Total Amount 6,82,947/- The complainants are entitled for the said amount with interest at 18% p.a. on the amount of Rs.4,46,000/- from the date of complaint till the date of realization. Accordingly we proceed to pass the following: O R D E R The complaint filed by the complainants is allowed. OPs are directed to refund an amount of Rs.4,46,000/- with interest at 18% p.a. from the date of complaint till the date of realization and to pay total amount of interest accrued Rs.6,82,947/- with litigation cost of Rs.3,000/- to the complainant. This order is to be complied within four weeks from the date of its communication. Send copy of this order to both the parties free of costs. (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the th day of January 2010.) MEMBER MEMBER PRESIDENT NRS
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