BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NOs.343 and 344/2018

DATED ON THIS THE 6^th June, 2019

      Present:  1) Sri. C.V.Maragoor

B.Com., L.L.M., - PRESIDENT   

                     2) Sri. Devakumar.M.C.           

                                        B.E., LLB., PGDCLP   - MEMBER

Sri C.V.MARAGOOR,

President

COMMON ORDER

1.          CC No.343/2018 is filed by Rajendra.Y. S/o Yogashankara.P aged 45 years resident of K.R.Mohalla, Mysuru and CC 344/2018 filed by Smt.Nagarathna W/o Shivakumar.M., aged 51 years resident of K.R.Mohalla, Mysuru to direct the opposite party BSG Properties, Arungowda.B.S., Managing Director resident of Mysuru to pay a sum of Rs.30,780/- and Rs.41,040/- with litigation cost of Rs.10,000/- each respectively.
2.          The opposite party in both the cases is one and the same and reliefs sought against the opposite party is same hence, this common order.
3.          The complainant in CC 343/2018 had applied for allotment of site measuring 20 x 30 ft. in the layout to be formed by the opposite party at Manuganahalli village, Bilikere hobli, Hunsur taluk, Mysuru District.  The complainant in CC 344/2018 had also applied for 20 x 30 ft. site in the same layout to be formed by the opposite party at Manuganahalli village, Hunsur taluk.  The opposite party had agreed to allot sites in survey No.64 of said village adjoining to main road behind HMR garden City layout in starting line.  The complainants have made down payment of Rs.15,000/- each on 17.07.2016 and later on they have paid EMI of Rs.3,000/- each till 14.05.2018.  The complainant in CC 343/2018 has paid in all Rs.81,000/- and the complainant in CC 344/2018 has paid total sum of Rs.1,08,000/-.  The complainant in CC 343/2018 herein after called as “former” and the complainant in CC 344/2018 as “later”. 
4.         That on 29.05.2018 the opposite party had called the complainants over phone and said that the sites in survey No.64 of Manuganahalli village have been allotted.  On 30.05.2018 the complainants went to the office of opposite party then told that they shall pay 30% of total site value and the opposite party has showed the plan layout and sites of the complainants which were in survey No.70 of Manuganahalli village.  After exchange of words between the complainants and opposite party, the later has refused to allot sites in survey No.64 as agreed.  Then the complainants have sent requisitions on 02.06.2018 for return of their advance amount.  The opposite party has agreed to return the advance amount by deducting Rs.30,780/- and Rs.41,040/- as penalty.  The complainants have resisted the act of opposite party then the later has agreed to return the said amount also, but he failed to stick up to his words.  Hence, these complaints.
5.         The opposite party after service of notice put in appearance through his learned counsel on 23.10.2018, but failed to file written version, though opportunity was given till 04.12.2018.  Thereafter, the opposite party and his learned counsel were remained absent in the proceedings then the complainants filed their affidavits and also written arguments.  On perusal of the complaints, affidavits and written arguments along with documents, the points that would arise for determination are as under:-   

1. Whether the complainants prove that the act of opposite party in non-returning the part of advance amount amounts to unfair trade practice?
2. Are complainants entitled to the reliefs sought for?
3. What order?

6.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative;

Point No.2 :- In the affirmative;

Point No.3 :- As per final order for the below

:: R E A S O N S ::

7.         Point Nos.1 to 3:- The complainants in the affidavits filed in lieu of evidence have reiterated the averments of complaints.  The complainants have produced receipt issued by opposite party for down payment and EMIS from 17.07.2016 to 14.05.2018.  The complainants have produced the agreement entered between them and opposite party on 17.07.2016 wherein the opposite party has agreed to allot sites in start line North phase.  The complainants in former case produced the layout plan of survey No.64.  Further the former and later complainants have produced the official memo dated 13.03.2018 issued by the Deputy Commissioner of Mysuru District, Mysuru for conversion of agricultural land for non-agriculture purpose in respect of survey Nos.70, 72/1 and 72/2 of Manuganahalli village total measuring four acres 18 guntas.  This official memo shows that the opposite party proposed layout is in survey No.70 and 72 of Manuganahalli village but not in survey No.64.  On seeing the plan and Deputy Commissioner’s order, the complainants have refused to take sites in survey No.70 and 72 and submitted representation to the opposite party on 02.06.2018 for return of their advance amount.  On the same day, the opposite party has agreed to refund the amount by deducting Rs.30,380/- and Rs.41,040/- as penalty amount.  Again on 29.08.2018 the complainants have submitted representation to the opposite party for return of the amount deducted towards penalty.  Complainants have not disputed receipt of Rs.50,220/- and Rs.66,960/- from the opposite party respectively out of their advance amount paid to him.
8.        The opposite party though appeared through its learned counsel neither filed written version or contested the claim of complainants by filing affidavit.  The unchallenged allegations of the complainants and documents prove that the opposite party though has agreed to allot sites in survey No.64, but later went to allot in survey No.70 of Manuganahalli village.  This act of opposite party amounts to unfair trade practice as such, the complainants have decided to take back their advance amount.  The opposite party has not placed any material to show that there was an agreement between him and the complainants to deduct part of the amount as penalty while returning back to the complainants.  Due to unfair trade practice of the opposite party, the complainants decided to take back their advance amount, as such the opposite party has no right to deduct the amount towards penalty. Therefore, the complainants are entitled for refund of the penalty amount retained by the opposite party with cost of the proceedings. Accordingly, we proceed to pass the following:-

:: O R D E R ::

1. CC 343/2018 and 344/2018 filed by Rajendra.Y. and Smt.Nagarathna are allowed directing the opposite party to return back a sum of Rs.30,780/- and Rs.41,040/- to the complainants respectively within two months from the date of order.  Otherwise, opposite party shall pay interest at the rate of 10% p.a. from 01.09.2018 till payment.
2. In addition to that the opposite party shall pay a sum of Rs.10,000/- towards cost of the proceedings to each complainants within two months from the date of order.  If the opposite party fails to pay the said amount within stipulated period, it carries interest at the rate of 10% P.A.  from the date of filing the complaints till realization.
3. Place the copy of order in CC No.344/2018.
4. Furnish the copy of the order to the complainants and opposite party at free of cost.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 6^th June, 2019)