COMPLAINT FILED:25-03-2009 <br /> DISPOSED ON: 27-10-2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 27TH OCTOBER 2009<br /> <br /> PRESENT :- SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> COMPLAINT NO.705/2009<br /> <br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> D.S.Raghavendra<br /> S/o. Late Sri.D.Sheshagiri Rao,<br /> Aged about 70 years,<br /> Residing at No.JP-14,<br /> ‘Pavamana” 6th Cross,<br /> LIC Colony, 3rd block East,<br /> Jayanagar, Bangalore – 11.<br /> <br /> Advocate – Sri.N.Vageesh<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTIES 1)M/s. Citilights Estates Pvt.Ltd.,<br /> A Company Registered under the Company’s Act, Having its Registeres office at No. 3795,<br /> 7th Main, HAL 2nd Stage, Indiranagar, <br /> Bangalore – 560 038.<br /> <br /> Represented by its Director<br /> <br /> 2) Senior Executive,<br /> Marketing & Services,<br /> 7th Main, HAL 2nd Stage, Indiranagar, <br /> Bangalore – 560 038.<br /> <br /> Advocate – Sri.Joshva H. Samuel<br /> <br /> <br /> O R D E R<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction to Opposite Party (herein after called as OP) to refund an amount of Rs.6,60,000/- which includes principal amount as well as interest and to pay above said interest at 24% p.a. and further an amount of Rs.2,00,000/- as compensation for the infliction of mental harassment, agony and causing loss to the complainant on an allegations of deficiency of service on the part of the OP.<br /> <br /> The case of the complainant to be stated in brief is: <br /> <br /> 2. During November’ 2004 OP 1 issued an advertisement regarding the formation of the residential layout, OP 2 represented the complainant that OP 1 would be forming residential layout after getting all the necessary approvals from the competent authority and the layout would be completed within a year. The representative of the OP 1 gave rosy picture of the layout and prevailed upon complainant to become a member. The complainant paid the amount of Rs.88,162/- towards Schedule A property and an amount of Rs.1,66,478/- towards Schedule B property. As there was no information about the further progress, the complainant approached OPs and OPs represented that on account of some administration problems, approval of the layout could not be obtained and infact the company was seriously persuing the matter and within 6 months the layout would be ready and also assured that there was no cause for worry or for any apprehension and complainant was asked to pay further amount of Rs.44,081/- towards agreement of sale of Schedule A property and Rs.83,239/- towards agreement of sale of Schedule B property. The complainant paid the said amounts and agreement of sale dated 29-09-2006 came to be executed in respect of Schedule A and Schedule B property. It is said that without furnishing a copy of the agreement of sale the complainant was pressurized to sign the agreement of sale in the office of the company. Hence the complainant could not fathom the real tenor of the agreement of sale, had he been provided with a copy of the agreement of sale and had there been sufficient time, he could have put an end to the contract at that time itself. The complainant has paid an amount of Rs.1,32,243/- towards Schedule A property and an amount of Rs.2,49,717/- towards the schedule B property. Again the complainant approached OPs for the delay in executing the sale deed and handing over the possession of the land. OP represented that there was some policy changes by BDA and BMRDA and there was some delay in procuring the approval for the formation of the layout and assured to hand over the sites within few months. When nothing happened for all these years, the complainant approached OP Company, demanded return of the amount along with interest at 24% p.a. OP threatening that the amount would be returned by deducting necessary charges amounting to 40%. Being horrified and shocked the complainant went through the long and technical agreement of sale but found to his dismay that the agreement is nothing but one sided and all draconian clauses have been inserted to suit the diabolical intention of the respondent. On the positive representations the complainant agreed to become a member with a condition that the site would be allotted and possession would be given within one year from the date of initial payment; however adhering to the representation and promise and without obtaining any of the sanction from the competent authority within the time limit; the respondents have made nothing but false promise. The complainant being dejected at the conduct of the respondents and being dejected over cheating got issued legal notice dated 21-11-2008 calling upon the OPs to refund amounts with 24% interest p.a. After receipt of that notice OPs represented that the sites are not formed and that on account of constant change in Government, it was impossible for them to procure the sanctions. Again they insisted if complainant is interested in cancellation of sites then they would deduct 40% amount paid and balance would be given. Schedule B property has been booked for the use and occupation of complainant’s son and payment is made in his name and agreement of sale has been executed in his name. The OPs are indulging in defrauding people by false assurances and promises and also cheating the people. OPs failed to discharge the duties cast on it. Hence they are guilty of deficiency of services. OP failed to hand over the actual and physical possession within the time limit, there is no hope of forming layout in the couple of months. Hence the complainant prayed for necessary direction to refund the amount with interest.<br /> <br /> 3. OPs filed version contending that the complaint is not maintainable; the same is barred by limitation. There is no deficiency in service on the part of the OPs. The complainant continued the proceedings despite the OPs after appearance deposited the entire amount paid by the complainant with interest at 9% p.a. from the date of respective payment till June’ 2009 which has been received by the complainant. The complainant was informed that the project proposed was subject to approval from appropriate Government authorities with regard to the layout title and permissions. Having full knowledge of the same; the complainant submitted applications on 02-12-2004 for allotment of plots in the proposed layout and paid advances. Due to change in the policies of the Government with regard to conversion of the land, layout approval and the BMRDA norms with regard to clearances the project has been moving slow. OPs have not made any assurance to the complainant in respect of the time period for obtaining approvals at in point of time. The approval of the layout has not been granted till date. The complainant has not cancelled his booking or approached the OPs for refund of the amounts at any point of time. For the legal notice got issued by the complainant, OPs have replied and requested to approach the OPs for refund of the amount paid. The complainant did not approach OPs for the refund and has approached this Forum with this frivolous complaint. There is no deficiency of service or unfair practice by the OPs, they are not liable to pay any compensation or costs. Hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 4. The complainant produced documents along with the complaint and filed affidavit to substantiate the complaint allegations. OP 2 filed affidavit in support of the version.<br /> <br /> 5. OPs on appearance, on 22-04-2009 deposited the amount by issuing two cheques one for Rs.2,49,717/- and another for Rs.1,32,243/- towards refund of the amount deposited by the complainant. On 15-06-2009 the complainant has received the said cheques without prejudice to his claim regarding the compensation and interest claimed. On 03.07.2009 memo with two cheques dated 23-06-2009 are deposited for a total amount of Rs.1,38,300/- drawn in favour of the complainant towards interest at 9% p.a. The complainant has not received the said cheques. The complainant filed written arguments and heard the arguments on both sides. The points that arise for our consideration are:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 9. Our findings on the above points are:-<br /> <br /> Point No.1:- Negative.<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N <br /> <br /> 10. It is not in dispute that the complainant applied for allotment of two sites one for himself and another for his son in the proposed layout to be formed by the OPs and deposited total amount of Rs.3,81,960/-. After appearance of OPs that amount has been deposited on 22.04.2009 by drawing two cheques in favour of the complainant. The complainant has received the said cheques on 15.06.2009. Thus it is clear that the complainant has received the entire principal amount. The case of the complainant is that at the time when he applied for allotment of the sites OPs represented him that within a year of initial payment layout approval will be completed and sites possession will be given but OPs failed to obtain approval of layout and hand over the possession of the sites as a result there is deficiency in service on the part of the OPs. The version of the OPs is at the time of allotment the complainant was well aware of the fact that subject to approval of the layout, sites are allotted and in the applications for allotment dated 02.12.2004 it is clearly mentioned that the layout still not formed and approved. In our view after persuing the application for allotment filed on 02.12.2004 by the complainant it is clearly mentioned that the complainant was aware that layout is still not formed and approved; OPs are in process of getting approval from the appropriate authority for the layout. Further it is stated that subject to the layout being approved and all the title and permissions being put in place; the complainant requested to consider his application for allotment of sites. Thus it becomes clear that the OPs have not suppressed any material facts while allotting the sites to the complainant. On 29.09.2006 OPs have executed the documents agreement to sell; the terms of the agreement does not stipulate any time limit to obtain the approval and to hand over the possession of the sites allotted to the complainant. It is difficult to accept the contention of the complainant that without knowing the terms and conditions of the sale agreements he has put his signature and the said sale agreements are one sided. The version of the OPs is that due to the change in the policies of the Government with regard to conversion of land, layout approvals and BMRDC norms with regard to clearances, the project has been moving slowly. Still they are persuing the matter to obtain the approval. On the basis of the material placed we are unable to hold that the OPs are negligent in persuing the matters or purposely they are avoiding to obtain the approval for the layout proposed. Under these circumstances we are of the view that there is no any deficiency in service on the part of the OPs. <br /> <br /> 11. The complainant is seeking compensation on the ground that he has under gone physical and mental harassment at the hands of the OPs. In our view for the legal notice got issued by the complainant dated 21.11.2008 calling upon the OPs to refund the amount with interest at 24% p.a.; the OPs have replied requesting the complainant to approach them for getting refund of the amount. There is no mention in the reply that the OPs threatened to deduct 40% of the amount deposited towards other charges. The case of the complainant that the OPs threatened to deduct 40% of the amount towards other charges and refund the remaining amount cannot be accepted. There was any written request from the complainant to cancel the sites allotted. In the booking form it is clearly mentioned that cancellation request is to be given in writing. Without there being any written request for cancellation; the complainant could not have sought for refund of the amount. Further OPs in the reply notice came forward to refund the amount but the complainant instead of approaching the OPs to get the refund of the amount; approached this Forum with this complaint. The complainant has not made out any grounds for awarding compensation. Therefore we are of the view that the complainant is not entitled for any compensation. Without their being any deficiency in service on the part of the OPs compensation cannot be awarded. <br /> <br /> 12. The dispute with regard to rate of interest to be awarded is, the complainant claims 24% p.a. on the amount refunded on the ground that OPs have invested the amount deposited in the real estate industry and as such OPs have used that amount for development of other properties. Hence he is entitled for interest at 24% p.a. The OPs have deposited the amount towards interest at the rate of 9% p.a. Even it appears that at the time of amicable settlement, the OPs have come forward to pay interest at 12% p.a. but the complainant has claimed interest with quarterly rests. In our view there is no agreement between the parties to pay the interest on the amount deposited in case of refund made after cancelling the allotment of sites. Interest can be awarded on equitable ground in appropriate cases. The rate of interest to be awarded on equity should neither be too high nor too low. It is difficult to accept the contention of the complainant that the OPs have invested the amount in real estate industry and got good returns. In our opinion awarding interest at the rate of 12% p.a. would be just and proper and meet the ends of justice. Accordingly OPs are to be directed to pay interest at the rate of 12% p.a. from the date of respective deposits made by the complainant till the amount was deposited in these proceedings. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant allowed in part. OPs are directed to pay interest at 12% p.a. on the amounts deposited by the complainant from the respective dates of deposit till the amounts were deposited by OPs in this proceedings for the refund to the complainant. Considering the nature of dispute no order as to costs. <br /> <br /> This order is to be complied within four weeks from the date of its communication. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (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 27th day of October 2009.) <br /> <br /> <br /> <br /> MEMBER PRESIDENT<br /> <br /> NRS<br /> <br />