<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL <br /> FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 15th JULY 2009<br /> <br /> <br /> PRESENT:- SRI. S.S.NAGARALE PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NOs. 744/2009, 745/2009, 746/2009, 747/2009, 748/2009, 749/2009, 750/2009 & 751/2009<br /> <br /> <br /> <br /> COMPLAINT NO.744/2009<br /> COMPLAINANTS<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.745/2009<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.746/2009<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.747/2009<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.748/2009<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.749/2009<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.750/2009<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.751/2009<br /> COMPLAINANT <br /> 1. Mr.Maganaram,<br /> S/o Late Dayaji,<br /> Aged about 58 years.<br /> <br /> 2. Smt.Tiji Bai,<br /> W/o Mr.Maganaram,<br /> Aged about 53 years,<br /> Both are residing at No.68,<br /> 1st Main, 2nd Cross,<br /> Nagappa Block,<br /> Bangalore – 560 021.<br /> <br /> <br /> Mr.H.Muralidhara,<br /> S/o Mr.Hulagappa,<br /> Aged about 42 years,<br /> Resident of Main Road,<br /> Sira,<br /> Tumkur District – 572137.<br /> <br /> <br /> Smt.Vijaya Raju,<br /> W/o K.G.Hanumantha Raju,<br /> Aged about 48 years,<br /> Residing at No.31, 5th Main,<br /> 4th Cross, Malleshwaram,<br /> Bangalore – 560 003.<br /> <br /> Mr.S.Ramprakash,<br /> S/o Late Srinivasaiah,<br /> Aged about 45 years,<br /> Resident of Vijaya Medical Stores,<br /> Main Road, Sira Town,<br /> Tumkur District.<br /> <br /> <br /> Smt.B.S.Sumathi,<br /> W/o B.S.Gopalkrishna,<br /> Aged about 43 years,<br /> Residing at No.1, <br /> Palace Cross Road,<br /> Bangalore – 560 020.<br /> <br /> <br /> Smt.Kaveeramma,<br /> W/o B.N.Krishnamurthy,<br /> Aged about 45 years,<br /> Residing at No.06/A,<br /> Ganeshakrupa,<br /> Metagalli Extension, <br /> K.R.S Road,<br /> Mysore – 570 016.<br /> <br /> <br /> Mr.B.A.Venkatesh,<br /> S/o B.K.Anjaneya Murthy,<br /> Aged about 46 years,<br /> Residing at No.955, 3rd Block,<br /> Opp. ESI Hospital, 41st Cross,<br /> 12th Main, Rajajinagara,<br /> Bangalore – 560 010.<br /> <br /> <br /> Mr.B.A.Sanjeeva Murthy,<br /> S/o B.K.Anjaneya Murthy,<br /> Aged about 52 years,<br /> Residing at No.955, 3rd Block,<br /> Opp. ESI Hospital, 41st Cross,<br /> 12th Main, Rajajinagara,<br /> Bangalore – 560 010.<br /> <br /> Advocate– Sri.S.Yathiraj<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> OPPOSITE PARTY V/s<br /> <br /> <br /> <br /> <br /> M/s. CITI GREEN FARMS (P) LTD.,<br /> Represented by its<br /> Managing Director,<br /> No.2, 24th Main, 1st Phase,<br /> Near R.V Dental College,<br /> J.P Nagar,<br /> Bangalore – 560 078.<br /> <br /> Advocate– Sri.G.Sukumaran<br /> <br /> <br /> O R D E R<br /> <br /> These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to accept the balance amount of the plot and register the plot in their favour or in the alternative pay a compensation with interest on an allegations of unfair trade practice and deficiency in service. <br /> <br /> As the opposite parties in all the complaints are common, the question involved, relief claimed being the same, in the interest of justice, in order to avoid repetition of facts and multiciplity of reasoning, these cases stand disposed of by this common order.<br /> The brief averments, as could be seen from the contents of the complaints, are as under:<br /> 2. Each one of these complainants being lured away with the advertisement and propaganda issued by the OP who claims to be the developers and promoters of farm house and layout in and around Bangalore thought of purchasing the plot of their choice. In that regard they contacted the OP. OP accepted their membership, allotted them the number in the year 1994 & 1995. Then each one of these complainants opted to purchase the plot of their choice and paid the amount towards the cost. Thereafter some how there were no developmental activities at all. One fine day OP closed down its business and office and where about is not known. In the year 2007 complainants came to know about the activities of the OP in a different name and style. Then they contacted the OP expressed willingness to pay the remaining cost of the said plot and requested the OP to execute the sale deed but it went in vain. Though complainants invested their hard earned money in lakhs they are unable to reap the fruits of their investment because of the carelessness, negligence and hostile attitude of the OP. Thus they felt deficiency in service on the part of the OP. For the convenience sake the date of membership and number, area of the plot, amount paid, date of paper publication, date of last payment is mentioned in the chart below.<br /> <br /> Sl No. Complaint No. Date of membership & number Farm Area Amount paid Paper advertisement Last Payment made in the year<br /> 1) 744/09 17.05.95202,202A 10000 Sq feet Rs.88,000/- 01.07.07 17.09.1996<br /> 2) 745/09 27.12.94224 A 5000 Sq feet Rs.72,000/- 01.07.07 18.09.1997<br /> 3) 746/09 25.12.94 275 5000 Sq feet Rs.82,000/- 01.07.07 28.07.1998<br /> 4) 747/09 27.12.94 590 A 5000 Sq feet Rs.54,000/- 01.07.07 07.01.1998<br /> 5) 748/09 25.12.94275 A 5000 Sq feet Rs.64,000/- 01.07.07 28.07.1998<br /> 6) 749/09 25.12.94 276 5000 Sq feet Rs.1,36,000/- 01.07.07 15.07.1997<br /> 7) 750/09 16.02.95 044 5000 Sq feet Rs.1,20,000/- 01.07.07 15.11.1999<br /> 8) 751/09 16.02.95 044 5000 Sq feet Rs.1,20,000/- 01.07.07 12.11.1999<br /> <br /> When the repeated requests and demands made by the complainants went in futile they are advised to file these complaints and sought for the reliefs accordingly.<br /> <br /> <br /> 2. On appearance, OP filed the version. The defence set out by the OP in all these cases is same and identical. The brief averments, as could be seen from the contents of the version is as under:<br /> <br /> That complainant’s are guilty of suppression of true, real facts, which are well within their knowledge. Complainants entered into a contract or agreement with the earlier directors of the OP Company and the present directors taken over by the company in the year 1999. So the grievance if any complainants have to redress against the ex and past directors of OP company not against the present directors. Complaints are barred by time. The last payment made by these complainants pertains to the year 1996-97 they have not agitated their rights for more than 8 to 9 years. As the complainant’s failed to make payment of the remaining plot value in time as contemplated under the agreement their membership is cancelled, amount is forfeited as per the clause.6 of the conditions. Complainants are bound by the terms and conditions of the said agreement including that of clause No.10. There is no deficiency in service of any kind on the part of the OP. Complaints are devoid of merits. No such vacant plots are available at the disposal of the OP as on today. Under such circumstances they are unable to allot or register any plot even by receiving the remaining cost. Accordingly they prayed for the dismissal of the complaints. <br /> <br /> 3. In order to substantiate the complaint averments, each one of these complainants filed their affidavit evidence and produced some documents. OP has also filed the affidavit evidence. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in these complaints are as under:<br /> <br /> Point No. 1 :- Whether the complainant’s have Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant’s are <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. The fact that each one of these complainants become the member of the project floated by the OP company in the year 1995 with a fond hope to purchase a farm land (plots) of various dimensions is not at dispute. Each one of these complainants opted to purchase the farm land of their choice and they went on paying the cost to the OP company. The details of membership number, farm area, actual amount paid along with the date of last payment are mentioned in the chart noted above for convenience. Though complainants invested their money to purchase a plot in the year 1996-97 but there were no developmental activities at all.<br /> <br /> 7. It is further contended by the complainants that they did approach the OP for several times and requested to allot the plot and register the plot, but it went in vain. On the other hand one fine day OP changed its office and closed down the business. Complainants were in search of OP, ultimately when they read the newspaper dated 01.07.2007 they are able to trace out the existence of the OP. Of course OP intended to start the new project in the name and style C G homes and developers in a small letter they mentioned it Citi Greens. Then complainants approached the OP to redress their grievance. Copy of the paper publication is produced including that of the passbook issued by the OP and the receipts passed by the OP Citi Green Farms for having received the cost of the plot in part. Contents of those documents are not at dispute.<br /> <br /> 8. The evidence of the complainants finds full corroboration with the contents of the above said undisputed documents. Their evidence appears to be very much natural, cogent and consistent. There is nothing to discard their sworn testimony. It is a quality of evidence that is more important than that of the quantity. Though OP received a huge amount in lakhs from each one of these complainants in the year 1996-97 or so but failed to keep up its promise in allotting the plot and registering them in their favour. Complainants invested their hard earned money to purchase a plot of their choice but they are unable to reap the fruits of investment because of the hostile attitude of the OP. OP having retained the said huge amount for all these years accrued the wrongful gain to self thereby caused wrongful loss to the complainants that too for no fault of theirs.<br /> <br /> 9. As against this unimpeachable evidence of the complainant’s OP has come up with the defence that the complaints are barred by time, there is a gap of 8 years in seeking the redressal. Further it is contended that complainant’s have become the defaulter in not making payment of the EMI. The fact that complainants are ready and willing to pay the remaining amount is also not at dispute. Because of non completion of the said project in time and as there were no actual developmental activities they stopped making further payment. In addition to that OP has closed down its office changed its business, shifted the office to some other places without intimating its members. Under such circumstances complainants are rather restrained and prevented from making further payment.<br /> <br /> 10. The fact that complainants ultimately able to trace out the OP in the year 2007 on reading the newspaper advertisement is also not at dispute. Once when OP admitted the membership of the complainant and received the part payment, it is an obligation on the part of the OP to receive the remaining amount and register the plot. But here OP failed to do so. Under such circumstances we find each one of these complainant’s will get recurring cause of action. So the contention of the OP that the complaints are barred by time rather does not hold much force. <br /> <br /> 11. It is contended by the OP that complainants have transacted with the earlier directors of the said company and they have taken over and purchased the said company in the year 1999. When the present directors of the OP purchased the said company along with the assets, there is an obligation on the part of the present OP to redress the grievance of its earlier members. Under such circumstances the contention of the OP that complainants have to proceed against earlier directors does not hold much water.<br /> <br /> 12. It is further contended by the OP that the complainants become the defaulters in not making payment of the monthly installments thereby violated the clause.6 and 10 of the agreement, hence what ever the amount they have paid is forfeited and their membership is cancelled. This arbitrary and unilateral act of the OP speaks about their ulterior motive and intention and this circumstances is sufficient to hold that there is an unfair trade practice and deficiency in service on the part of the OP. It would have been more fair on the part of the OP to cause notice in writing and give an opportunity to explain the delay in payment of the remaining EMI as contemplated under natural justice. But no such steps are taken by the OP and its directors. Thus OP can’t invoke or take undue advantage of clause like 6 and 10 of the said agreement.<br /> <br /> 13. It is strangely contended by the OP that there is no privity of contract between themselves and the complainants. It may amounts to repetition if we say, when OP admits that it has taken over the OP company from previous directors then naturally they are liable to answer all the obligations of the ex directors of the OP company. Of course OP has contended that as on today no plots are available at their disposal so as to allot and register. At the same time complainants have not produced any other documents to show that OP completed the said project, formed the layout consisting of farm land, plots of various dimensions and such vacant plots are still available at the disposal of the OP free from all encumbrances and that the said layout is approved by the statutory authorities. So in absence of production of such documents, in our view complainants are not entitled for the relief of allotment of plot and registration of the plot that too by receiving remaining EMI.<br /> <br /> 14. Having considered the facts and circumstances of the case in our opinion justice will be met by directing the OP to refund what ever the amount that is received along with interest and litigation cost to the complainants. With these observation we answer point Nos.1 & 2 accordingly and proceed to pass the following: <br /> O R D E R<br /> <br /> The complaints are allowed.<br /> <br /> 1. In complaint No.744/2009 OP is directed to refund Rs.88,000/- together with interest at the rate of 12% p.a from October 1996 till realization along with litigation cost of Rs.2,000/- to the complainant.<br /> <br /> 2. In complaint No.745/2009 OP is directed to refund Rs.72,000/- together with interest at the rate of 12% p.a from October 1997 till realization along with litigation cost of Rs.2,000/- to the complainant.<br /> <br /> 3. In complaint No.746/2009 OP is directed to refund Rs.82,000/- together with interest at the rate of 12% p.a from August 1998 till realization along with litigation cost of Rs.2,000/-to the complainant.<br /> <br /> 4. In complaint No.747/2009 OP is directed to refund Rs.54,000/- together with interest at the rate of 12% p.a from February 1998 till realization along with litigation cost of Rs.2,000/- to the complainant. <br /> <br /> 5. In complaint No.748/2009 OP is directed to refund Rs.64,000/- together with interest at the rate of 12% p.a from August 1998 till realization along with litigation cost of Rs.2,000/-to the complainant.<br /> <br /> 6. In complaint No.749/2009 OP is directed to refund Rs.1,36,000/- together with interest at the rate of 12% p.a from August 1997 till realization along with litigation cost of Rs.2,000/-to the complainant.<br /> <br /> 7. In complaint No.750/2009 OP is directed to refund Rs.1,20,000/- together with interest at the rate of 12% p.a from December 1999 till realization along with litigation cost of Rs.2,000/- to the complainant.<br /> 8. In complaint No.751/2009 OP is directed to refund Rs.1,20,000/- together with interest at the rate of 12% p.a from December 1999 till realization along with litigation cost of Rs.2,000/- to the complainant.<br /> <br /> This order is to be complied within four weeks from the date of its communication.<br /> <br /> This original order shall be kept in the file of the complaint No.744/2009 and a copy of it shall be placed in other respective files.<br /> <br /> (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 10th day of July 2009.) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> Vln* <br /> <br />