COMPLAINT FILED ON: 27.05.2009<br /> DISPOSED ON: 18.11.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> DATED THIS THE 18TH NOVEMBER 2010<br /> <br /> PRESENT:- SRI. B.S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER<br /> <br /> COMPLAINT NO.1204/2009<br /> <br /> COMPLAINANT Shri K.R. Garudadhwajan,<br /> S/o Shri K.G. Rama Iyengar,<br /> Aged about 61 years,<br /> R/at No.633, II Block,<br /> III Stage, Basaveshwarnagar,<br /> Bangalore – 560 079.<br /> <br /> Advocate: Sri. Veerendra Patil<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTIES 1. Dee Estate & Properties <br /> Private Limited,<br /> Having it’s Registered Office at<br /> No.177, 1st Main, 12th ‘A’ Cross,<br /> West of Chord Road, 2nd Stage,<br /> Mahalakshmipuram,<br /> Bangalore – 560 086.<br /> <br /> By its Managing Director.<br /> <br /> 2. Shri R. Mahadev Gowda,<br /> Managing Director,<br /> Dee Estate & Properties<br /> Private Limited,<br /> Having its Registered Office at<br /> No.177, 1st Main, 12th ‘A’ Cross,<br /> West of Chord Road, 2nd Stage,<br /> Mahalakshmipuram,<br /> Bangalore – 560 086.<br /> <br /> Advocate: Sri. S. Vinod<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 Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps) to register the plot and hand over vacant possession of the same formed in the layout of OPs, to pay interest at 24% p.a. on the sale consideration paid until actual possession is delivered. Alternatively to direct the OPs to pay an amount of Rs.13,92,590/- with interest at 24% p.a. along with costs of the litigation on the allegations of deficiency in service on the part of the OPs. <br /> <br /> 2. The case of the complainant is to be stated in brief is that: <br /> <br /> During the beginning of the year 1996, OP-1 represented by OP-2 as it’s Managing Director approached the complainant representing themselves to be developers developing vast tracts of land situated in the outskirts of Bangalore and also within the Bangalore District too. OP-2 as Managing Director of OP-1 represented that they were in possession of the land bearing Sy. Nos. 17/1, 17/2, 18 and 84 of Somasagara Village, Thymagondly Hobli, Nelamangala Taluk, Bangalore Rural District measuring in all more than 23 acres. The said lands were being developed by OPs into vast plots of land consisting flora and fauna, comfortable for a living. The complainant evinced interest in purchasing one of such plots to be formed and entered into an agreement dated 08.05.1996 in respect of plot No.493 measuring East to West 76.15 feet and 143 feet North to South, in all measuring 10,890 sq. ft. On the same day OP-1 represented by OP-2 also executed memorandum of agreement to develop the said plot of land and have the same developed by planting certain trees and coupled with all round development of the plot in question. It was agreed between the parties that the complainant pay Rs.1,10,000/- towards cost of plot and Rs.1,30,000/- towards cost of development of plot and on the date of agreement, the complainant paid Rs.20,000/- and Rs.10,000/- under the said agreement and the balance amount agreed to be paid in installments of Rs.3,500/- per month. The complainant paid more than 35 installments; there was no development in the work. The complainant paid installments upto July – 2000. Even though the year 2001 ended no development has been done by the OPs and OPs requested for the time and they have sent communication dated 14.01.2002. The complainant was enquiring with OPs when the development will be completed and when they are going to execute the sale deeds, OPs informed the complainant to pay the balance installments and also the registration charges. On 15.05.2006 the complainant has paid the balance amount and also the registration and miscellaneous charges amounting to Rs.78,500/- through cheque. Thus the complainant has in all paid Rs.2,80,000/- to the OPs for getting the developed plot. After payment of plot value and registration expenses when the complainant asked for registration of plot, the OPs have furnished the draft sale deed along sketch for perusal by the complainant. After seeing the draft the complainant was astonished as the draft sale deed was pertaining different survey number and hence has sought for the copies of the documents through letter dated 27.03.2006. Thereafter the complainant reminded the OPs for documents through letters dated 29.03.2006, 11.04.2006 and 02.05.2006. OPs sent letter dated 25.06.2008 communicating that revenue or farm land cannot be registered and has interalia agriculture certificate etc., are required. The complainant was never at any point of time, was ever told about land being farmland, as it was always represented that the land is a converted one and that individual plots are developed. OPs who along knew the status of the complainant was called him to furnish them with the said documents. The letter dated 25.06.2008 is highly belated, bereft of any form of reasons and is definitely malafide in nature, meant to expose the complainant to untold misery in term of physical, mental and monetary loss and injury. The complainant got issued legal notice dated 18.08.2008 and 19.01.2009 to the OPs and also to the owners of the lands in question, out of which the OPs had represented that they have formed the plots under the name and style of DEE MANDALA. The OPs have not replied for the said notice. On 05.02.2009 when the encumbrance certificate was obtained; it was revealed that the lands referred to hereinabove out of which OP promised 10 guntas of land will be sold to the complainant is no more in existence as they have been sold to various parties, thereby leaving the complainant in cold. OPs being the lands developers, having promised plot of land for valuable consideration by not doing so, have committed acts which amount to deficiency of service. Thus the complainant claims the amounts as under:<br /> <br /> i) Amount paid by complainant : Rs.2,80,000/-<br /> ii) Interest on the said amount from <br /> 1996 to April 2009 at 24% : Rs.6,02,590/-<br /> iii) Amount spent for visiting the office<br /> of OP, telephone charges, expenses<br /> for correspondence : Rs. 10,000/-<br /> iv) Damages by way of compensation<br /> for mental agony suffered : Rs.5,00,000/-<br /> Total : Rs.13,92,590/-<br /> <br /> Thus the complainant seeking necessary reliefs stated above: <br /> <br /> 3. On appearance, OPs filed version admitting that the OP-2 is the Managing Director of OP-1; OPs are in possession and enjoyment of the agricultural land property bearing survey Nos.17/1, 17/2, 18 and 84 measuring in all 23 acres, situated at Somasagar Village, Thyamagondlu Hobli, Nelamangala Taluk, Bangalore Rural District as per the general power of attorney dated 06.07.1995 executed by Smt. Varalakashmamma who is the kathedar of the said properties. It is denied that OPs put forth before complainant that the said lands were developed and also being converted for the purpose of carving out of plots. OPs never agreed to give converted plot carving out in afore said properties. The complainant after proper verification of documents and inspecting the property agreed to purchase unit of land measuring 10,890 sq. ft. (Approximately 10 guntas) in the above survey numbers. Thereafter the complainant was not in a position to purchase the said land at one time payment and then OPs accommodated him and agreed to accept the sale consideration amount in 60 installments. OPs have allotted a unit No.493 measuring 10,890 sq. ft. (Approx 10 guntas) in the above mentioned survey numbers and thereby entered into an agreement to sale dated 08.05.1996. Further one more developmental agreement was also made, which is for planting trees on the said unit of land and to look after the said trees and land. It is admitted that the sale consideration for purchase of unit in the said land was fixed at Rs.1,10,000/- and complainant had paid Rs.20,000/- as advance and further the developmental charge was fixed at Rs.1,30,000/- and complainant had paid Rs.10,000/- as advance and thereby entered into sale agreement and development agreement. The complainant agreed to pay remaining sale consideration amount and development charges in 60 equal monthly installments of Rs.3,500/-. The complainant had paid the installments amount till 12.07.2000; thereafter he stopped making payment for the best known reasons to him. The complainant saw the developments in the project and thereafter he came to the office of OP and paid the balance amount and obtained the receipts. OPs even after the lapse of six years and after termination of the agreement accepted the said payment only with an intention to give the said land to the complainant. On receipt of the balance sale consideration OPs have furnished draft sale deed and sketch and requested to the complainant to fix the date to fulfill the registration formalities, then the complainant instead of registering the sale deed started enquiring about the survey numbers etc., and thereby delayed sale formalities. It is admitted that OPs have sent letter dated 25.06.2008 to the complainant requesting to him to provide certain documents to complete the registration formalities. OPs never said that they will give converted land, further the said land is in agricultural zone and it cannot be converted for non agriculture purposes, even the complainant is also aware of the same. OPs are always ready and willing to give the said land to the complainant, but it was complainant who delayed to register the sale deed. There is no deficiency of service on the part of the OPs. OPs are ready to give the land provided, the complainant furnish the required documents of the registration of the sale deed. Hence it is prayed to dismiss the complaint. <br /> <br /> 4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. OP-2 filed affidavit evidence and produced documents in support of the defence version. <br /> <br /> 5. Arguments on both sides heard. Points for consideration:<br /> <br /> Point No.1:- Whether the complainant proved the <br /> deficiency in service on the part of<br /> the OP?<br /> Point No.2:- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 6. We record our findings on the above points: <br /> <br /> Point No.1:- In Affirmative. <br /> Point No.2:- Affirmative in part. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the out set it is not at dispute that OP-2 being the Managing Director of OP-1 and also as the power of attorney holder of land owner Mrs. Varalakshmamma agreed to sell unit No.493 in DEE Mandala Estate at Somasagara Village, Thyamagondlu Hobli, Nelamangala Taluk measuring East to West 76.15 feet and North to South 143 feet, total extent 10890 square feet under the sale agreement dated 08.05.1996 for total consideration of Rs.1,10,000/- and received an advance of Rs.20,000/- on the date of agreement deed. Further OP-2 also executed development agreement on the same day i.e., 08.05.1996 agreeing to develop the said unit No.493 for a total development charge of Rs.1,30,000/- and received an advance of Rs.10,000/-. The balance amount was agreed to be paid under the sale agreement and development agreement in 60 monthly installments. The complainant in all has paid entire amount of Rs.2,40,000/- along with registration and miscellaneous charges of Rs.40,000/-. The complainant has produced the receipts as documents No.12 to 60. The sale agreement is at document No.10 and development agreement is at document No.11. The General Power of Attorney executed by the owner of the land in favour of OP-2 is at document No.1, RTC extract of land No.17, 18 and 86 are at document No.2 to 8, encumbrance certificate is at document No.9. As per document No.61 letter dated 14.01.2002 OPs sought for further time of three years from January – 2002 to complete the entire development work as per development agreement. The complainant claims that till today OPs have not carried out developmental works as agreed under the development agreement. Further after paying the balance consideration and registration charges on 15.03.2006 OPs failed to execute the sale deed. The draft sale deed dated 22.03.2006 at document No.63 furnished to complainant by OPs related to a different survey number bearing No.9/2. The owner of the said land was one Moodalappa and others represented by their GPA holder DEE Estate and Properties Private Limited. The complainant by letter dated 27.03.2006 at document No.64 requested OPs to furnish the registered PA, and other documents shown therein to ascertain the title of the property proposed to be sold. The complainant further sought the same documents in his letters dated 29.03.2006, 11.04.2006 and 02.05.2006 marked at documents 65 to 67. OPs failed to provide those documents; in view of the same, the complainant could not get registered sale deed in respect of the property which was a converted land. OPs by their letter dated 25.06.2008 at document No.68 intimated the complainant that as per the agreement they had agreed to register farm land, but according to the new rules no more revenue or farm land can be registered, as per the Government CDP plan agreed land falls under agricultural zone. At present without the agricultural certificate / status and other few documents like Family Tree, RTC, etc., is required without all these documents, complainant is not eligible for buying agricultural land and registration cannot happen without the required documents. <br /> <br /> It is contended for the complainant that soon after the registration charges and the balance consideration was paid in March – 2006, OPs failed to execute the sale deed in respect of agreed unit of land, at that time there was no any bar for purchasing the farm land by the complainant. Because of the delay on the part of the OPs in executing the sale deed; as per the new rules no revenue or farm land can be registered in favour of a person without the agricultural certificate and other documents like Family Tree, RTC, etc., Now the complainant is having no agricultural certificate and he has no other agricultural land, hence he is not eligible to get the registered sale deed in respect of the unit of land agreed to be purchased. Thus it is contended that failure on the part of the OPs execute the sale deed in the year – 2006 and not furnishing the required documents in respect of non agricultural land shown in the draft sale deed amounts to deficiency in service. Thus it is contended that the complainant is entitled for refund of the amount of Rs.2,80,000/- with interest at 24% from the respective date of payments along with compensation of Rs.5,00,000/- and other miscellaneous charges of Rs.10,000/-. <br /> <br /> 8. OP produced documents, copy of the sale deed dated 22.09.2005 in respect of land survey No.17/P1 executed by Smt. Varalakshmamma in favour of OP-2, copy of the encumbrance certificate of the said land, copy of village map, copy of RTC, mutation extract, copy of the report of Nelamangala Planning Authority stating that land survey no.17/P-1, 17/P2, 18/P2, 84 and 86 falls within agricultural zone as per the CDP plan. <br /> <br /> The learned counsel for the OPs contended that even now OPs are ready to execute the sale deed in respect of the unit of land agreed to be sold, but the complainant is not eligible to get the sale deed executed on account of the fact that the necessary documents to get the sale deed are not available with the complainant, as such there is no deficiency in service on the part of the OPs. In our view entire balance sale consideration and registration charges were paid by the complainant in the month of March – 2006, soon after that if the OPs came forward to execute the sale deed, there was no bar for the complainant to get the sale deed; as that point of time this unit of land was not included in the CDP plan within agricultural zone. Because of the delay on the part of OPs, new rules came into force; complainant is unable to produce the required documents for getting the sale deed executed. Therefore the delay on the part of OPs to come forward to execute the sale deed and not furnishing the required documents in respect of the converted land shown in the draft sale deed is deficiency in service on the part of the OPs. <br /> <br /> 9. The complainant has paid the total consideration of Rs.2,40,000/- and an amount of Rs.40,000/- towards registration charges, thus in all an amount of Rs.2,80,000/- is paid to the OPs. The complainant is entitled for refund of the said amount. The claim of the complainant; interest at the rate of 24% and the amount of compensation of Rs.5,00,000/- for mental agony suffered, are on higher side. We are of the considered view that awarding interest at the rate of 18% p.a. would be reasonable. Having awarded interest at 18% p.a. on the amount paid, it would meet ends of justice by awarding compensation of Rs.1,00,000/- towards mental agony. Accordingly we proceed to pass the following: <br /> <br /> <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is allowed in part. OPs are directed to refund an amount of Rs.2,80,000/- with interest at 18% p.a. from the respective date of payments, till the date of realization and pay compensation of Rs.1,00,000/- along with litigation cost of Rs.5,000/- to the complainant. <br /> <br /> This order is to be complied within four weeks from the date of this order. <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 him, verified and corrected, and then pronounced in the Open Court by us on this the 18th day of November 2010) <br /> <br /> <br /> MEMBER PRESIDENT<br /> <br /> s.n.m. <br />