Date of Filing: 26/09/2011
Date of Order: 30/11/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 30th DAY OF NOVEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO.1798 OF 2011
Mr. Venkatesh Uppala,
S/o. Mr.Sridhar Rao Uppala,
Aged About 41 years,
R/at: No.2216, 16th ‘C’ Cross,
8th Main, ‘D’ Block, Sahakara Nagar,
BANGALORE-560 092.
(Rep. by Sri.W.T.Prakash Kumar, Advocate) …. Complainant.
V/s
1. Bluevalley Properties Pvt. Ltd.,
Office at Blue Valley Celestial,
No.41, Nandidurga Main Road,
Jayamahal Extension, Bangalore-560 046.
Rep. by its Managing Director,
Mr.K.Suryanarayana Raju.
2. AND IT’S Executive Director,
Mr. M.C.Indu Mouli,
S/o. Mr.M.V.Chandrashekar,
R/at: No.201, 2nd Floor, Brigade
MM Annexe, K.R.Road,
Bangalore-560 070.
(Rep. by Sri.P.Srinivasaiah, Advocate) …. Opposite Parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that led to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the third Opposite Parties to pay Rs.5,27,346/- with interest at the rate of 15% per annum, are necessary:-
With respect to the purchase of the plot bearing No.546 in the layout of the opposite party known as “Nice Vistas” of 3000 square feet for certain consideration the complainant had entered in to an agreement of allotment dated: 01.07.2008 and paid an advance of Rs.8,40,000/-. Subsequently he paid another sum of Rs.2,80,000/- to the opposite party on 30.11.2010. As per clause 8 of the agreement and as per Para-7 of the agreement as the opposite party has failed to implement the project within the period of two years the complainant decided to exercise his liberty to take back the money, issued a letter to the opposite party on 28.01.2011 requesting the opposite party to return the amount with interest at the rate of 15% per annum. As per the e-mail dated: 10.03.2011 the opposite party agreed to return the money from 15.03.2011 onwards and the opposite party pleaded that they have difficulty and sought time till 15.04.2011 by e-mail dated: 23.03.2011. The complainant went to the J.C. Nagar Police station who suggested to approach the Civil Court. The opposite party paid Rs.2,00,000/- on 21.06.2011. The complainant demanded the opposite party over phone and by e-mail, as it was not paid he issued notice to the opposite party on 25.07.2011 calling upon the opposite party to pay Rs.13,13,876/- within seven days. By the reply dated: 27.07.2011 the opposite party has stated by the end of the August-2011 they will pay the amount. On 23.08.2011 the opposite parties have paid Rs.9,20,000/-, but the opposite parties has not paid the interest at the rate of 15% per annum which comes to Rs.5,27,346/-. Hence the complaint.
2. In brief the version of the opposite parties are:-
As there is no jural relationship is existing between the parties after the settlement the complaint is not maintainable. As the complainant has withdrawn from the contract on personal reason and no question asked and the opposite party has repaid the entire amount the complaint is mischievous. The execution of the agreement, notices, repayment are all admitted. The Clause 8 cannot be read in isolation with other clause. Reading of the clauses together opposite party had repaid the entire amount and nothing is due. The complainant has not sought for the specific performance of the agreement which he has executed.
3. To substantiate their respective cases both the parties have filed their respective affidavits and documents. Heard arguments.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether there is any deficiency in service?
- What Order?
5. Our findings are:-
Point (A) & (B): As per the final Order
for the following:-
-:REASONS:-
Point A & B:-
6. Reading the pleadings in conjunction with the affidavit and documents on record, it is an admitted fact that regarding purchase of plot in the land developed by the opposite party under the name and stile “Nice Vistas” an agreement was entered in to between the parties on 01.07.2008 for a plot of 3000 square feet and the complainant had paid Rs.1,00,000/- on 26.06.2008 and Rs.7,40,000/- on 30.06.2008 and the opposite party has received it. Further it is also an admitted fact that on 30.11.2010 in pursuance of the agreement the complainant has paid Rs.2,80,000/- to the opposite party who has received it. That means the opposite party had received in all Rs.11,20,000/- from the complainant.
7. Further it is an admitted fact that on 28.01.2011 the complainant made an application for return of the amount along with interest in terms of the agreement. The relevant portion of the letter reads thus:-
“I do not wish to go in for purchase of allotted to me at Nice Vistas, Mysore for purely personal reasons.
I therefore, request you to return the amount paid by me for the said plot along with interest thereof in terms of our agreement dated July 1, 2008.
The amount may please be paid by cheque drawn in my name to my savings account No.1047 645 2009 of SBI, Sahakarnagar Branch and handed over to my father Uppala Sridhararao.”
On this the opposite party on 10.03.2011 at 15.02 PM has sent an e-mail to the complainant which reads thus:-
“This has reference to the telephonic conversation you had with our Customer Care Department.
We wish to inform you that, repayment will be done from 15th March 2011 onwards.”
That means to say the opposite party has agreed to pay the amount and stated payment of the amount from 15.03.2011 onwards. It is also an admitted fact that the amount has not been paid. As the complainant requested for the amount the opposite party on 26.03.2011 at 22.11 PM has sent an e-mail to the complainant which reads thus:-
“Thank you for your mail. We do accept your cancellation of plot booked at our Nice Vistas project. Your father had visited our office. He need not take trouble of visiting our office. As he aged. I do not want to trouble him. As e-mail from your end is sufficient.
Since March month is financial year end, we will not be able to repatriate the funds till 15th April 2011. However, we will do everything possible to expedite the process for an early repayment. We request you to kindly bear with us.”
That means the opposite party has stated that they had some constricts and they will sent the amount by 15.04.2011. Further it is an admitted fact that as the opposite party has failed to return the money the complainant had lodged a complaint before the jurisdictional police on 28.05.2011 for an offence Under Section 420 IPC.
8. Further it is an admitted fact that on 21.06.2011 the opposite party had paid Rs.2,00,000/- to the complainant and not the entire amount. The complainant had issued a notice to the opposite party on 25.07.2011 to which the opposite party has written on 27.07.2011 stating that they will pay the amount and ultimately on 23.08.2011 paid Rs.9,20,000/-.
9. Now the complainant is stating that the interest at the rate of 15% per annum that was agreed has not been paid. The opposite party contends that they are not liable to pay the interest and as the entire agreement has been cancelled there is no jural relationship between the parties exists.
10. Hence let us probe further to understand the case. The clauses in the agreement that has been pressed in to service has to be looked in to. Clause-3(a) of the agreement reads thus:-
“3(a). The Allottee will buy the allotted land and get the same registered in his name at his cost after the necessary approvals and conversion orders are given to the Developer. The Developer is bound to give a clean marketable title of the converted developed land. The Developer must communicate such approvals to the Allottee at his registered address, phone number and email within 7 days of the competent authority approval. The Allottee must respond affirmatively in writing to the Developer within 7 days of receipt of such notice. In the event the Allottee does not respond to the notice, the first party will conclude that the second party is not interested in getting the plot registered in his name and will request to return the money along with 15% interest. The second party should make a request in writing to this effort to the first party to enable to repay the money.”
That is to say that the opposite party has to get the approval and conversion with respect to the development of the land then he must inform it to the complainant either at his residential address thro his phone number and e-mail within seven days of the approval. Thereafter the complainant has to inform the opposite party within seven days thereafter and if it is not informed then the opposite party had to return the money with interest at the rate of 15% per annum that’s all. This clause is not applicable to the facts and circumstances of this case. Here it is nobody’s case that the opposite party had obtained the sanction and approval, he had intimated it to the complainant and thereafter the complainant did not respond to that as a result, opposite party is bound to pay interest on the principal. This clauses is inapplicable. The complainant also has not pressed in to service this clause either in the complaint or in the affidavit only at the time of the arguments. This clause has been pressed in to service by opposite party which is in applicable to the facts and circumstances of this case.
11. The other clause that has been pressed in to service is clause 7 the clause 7 of the agreement reads thus:-
“The Developer is hereby agreeing that, in case of the change of the law of the land it could not obtain the land conversion order from the competent authority or could not obtain the Approved Layout Plan or in case of the acquisition of the respective lands by the (BMICPA) or any Local Body in such a case the Developer could not implement the Project within a period of 2 years from today under such circumstances the Developer assured the Allottee to refund the entire amount received by it along with interest at the rate of 15% per annum.”
That means in case of change of the law of the land, the opposite party could not obtain conversion orders and not able to obtain the layout plan, in such a case if the defaulter could not implement the project within two years from the date of the agreement, in that event the opposite party has to refund the amount with interest at the rate of 15% per annum. It is nobodies case that the defaulter was unable to get the land converted from the competent authority or could not obtain the approval of the layout/land from the competent authority, he could not implement the project and hence he has to pay the money with interest. This is nobody’s case. The complainant has not written to the opposite party on 28.01.2011 stating that the opposite party has failed to obtain the sanctioned plan, layout plan approval, conversion from the competent authority and he has not started the layout and hence he is liable and he wants interest. There is no such statements made by the complainant or in the notice/requisition dated: 28.01.2011. Hence this clause is inapplicable to the facts and circumstances of this case.
12. No let us consider clause-8 which reads thus:-
“The Purchaser has the liberty for taking back his money paid to the Developer, without giving any reason by giving 30 days notice and the Developer undertakes to return the money with 15% interest per annum.”
It means for any reason, if the complainant wants to take back his money without giving any reason he has to give a notice and within 30 days the opposite party is bound to return the money with interest at the rate of 15% per annum. That means from the date of notice the opposite party has to return the amount with interest at the rate of 15% per annum. It is not retrospective, it is on the volishing of the complainant, as he wanted the money back from the date of demand it has to be paid with interest at the rate of 15% per annum. It cannot be from the date of earlier payment to the opposite party. Such clauses is not there. This is because, the opposite party has taken the money and invested on land, he has to get an alternative customer and then pay to the complainant, for that reason, this clause has been inserted as rightly contended.
13. It is seen after 28.01.2011 request for refund made, the first payment was made on 21.06.2011, that means after five months 23 days. The opposite party is bound to pay interest at the rate of 15% per annum on 11,20,000/- from 28.01.2011 up to 21.06.2011. The said interest comes to Rs.70,752/-. As on 21.06.2011 the opposite party was bound to pay Rs.11,20,000/- + Rs.70,752/- = Rs.11,90,752/- in this he has paid Rs.2,00,000/- that means as on 21.06.2011 the opposite party was due Rs.9,90,752/-.
14. Further the opposite party had paid Rs.9,20,000/- on 23.08.2011. Hence the opposite party has to pay interest on Rs.9,90,752/- from 21.06.2011 up to 23.08.2011 that is for two months and two days which comes to Rs.37,296/-. Hence as on 23.08.2011 the opposite party was due to the complainant the sum of Rs.9,90,752/- + Rs.37,296/-. That means he was sue Rs.99,752/- + Rs.37,296/- = Rs.10,28,048/-. In this as he has paid Rs.9,20,000/-. The opposite party is due Rs.1,08,048/- as on 23.08.2011, as per the terms of the agreement as this has not been paid this is deficiency in service and unfair trade practice.
15. It was contended by the learned counsel for the opposite party that on 23.08.2011 the complainant has received Rs.9,20,000/- and signed the letter which reads thus:-
“As per your request of Cancellation of Plot at our Nice Vistas Project, Please find herewith the Demand Draft Bearing No.007264 dated: 22.08.2011 of Rs.920000/- (Rupees Nine Lacs and Twenty Thousand Only).”
And contends Rs.9,20,000/- has been received without any protest it means he has received this amount as full and final settlement. This is an untenable contention. The opposite party has not given up their claim under the agreement. On 28.01.2011 itself the complainant has claimed that he has to be returned the amount with interest as per the agreement and he has not stated that he has given up the interest portion. Hence the contention of the opposite party that the amount paid i.e., Rs.11,20,000/- is full and final settlement of the claim and nothing is due is an untenable one.
16. The other contention of the learned counsel for the opposite party is that as the agreement is with respect to the sale of the plot and that has been withdrawn there cannot be any deficiency in service and remedy of the complainant is to approach the Civil Court. This is an untenable contention. Here for whatever reason the parties were bound by the terms of the agreement and thus the service that has been agreed is one is to execute the sale deed, another is to refund of the money, on three different occasions at three different mode of payment and interest. The complainant has chosen one of those. Hence under these circumstances as the opposite party has agreed to repay and repaid a portion it means the jural relationship between the parties has not been broken since the opposite party has not completed the transaction by fulfilling the promises. The opposite party has taken money promising to do particular acts but it has not done. That act keeping others money utilizing it for their personal gain earning land and not paying the amount as agreed with interest is nothing but an unfair trade practice and deficiency in service. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite parties are directed to pay to the complainant the sum of Rs.1,80,048/- together with interest thereon at the rate of 12% per annum from 23.08.2011 until payment within 30 days from the date of this order.
3. The opposite parties are also directed to pay to the complainant a sum of Rs.2,000/- as costs of this litigation.
4. The opposite parties are directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 30th Day of November 2011)
MEMBER MEMBER PRESIDENT
