REMANDED COMPLAINT FILED ON: 25.10.2010

DISPOSED ON: 09.03.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

9^th MARCH 2011

       PRESENT :- SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

SMT. M. YASHODHAMMA, MEMBER

These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986 by respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to pay the balance of amount with interest and compensation on the allegations of deficiency in service.

As the opposite parties in these complaints are common, the question involved, relief claimed being the same, in order to avoid the repetition of facts and multiciplity of reasoning, in the interest of the justice these cases stand disposed of by this common order.

The brief averments, as could be seen from the contents of the each complaint, are as under:

2. Complainants being lured away with the advertisement and publicity as well as propaganda made by the OP who claims to be a promoter and developer of residential layout consisting of sites of various dimensions in and around Bangalore under the project ‘Sri. Balaji Nagar’ thought of purchasing a site of their choice.  Each one of these complainants opted to purchase a site measuring 30’ x 40’. OP fixed the total cost of the site as Rs.60,000/-. Then each one of these complainants went on paying the cost of the site. OP accepted their membership and promised to allot a site in their project.  In the meantime on enquiry complainants came to know that there were no developmental activities at all.  When they approached the OP, OP promised to accommodate them in their another project ‘Sri.Balaji Township’, but for the enhanced price. Not only that there after they changed their firm name and started claiming enhanced sital value to the tune of Rs.1,15,000/- as against Rs.60,000/- fixed earlier. Thus complainant felt unfair trade practice and deficiency in service on the part of the OP. For no fault of theirs they were made to suffer both mental agony and financial loss.  Complainants felt that OP is not going to complete the said project and the layout in the nearest future.  Hence they sought for the refund of the sital value with interest.  OP did refund certain amount, but not as per their demands. Hence they felt deficiency in service. For the convenience sake the member ship No, measurement of the site, total cost of the site, cost paid, refund made by the OP and the balance in due as per the complainants is mentioned in a below chart. 

3. Though complainants made the repeated requests and demands to OP to compensate them, it went in futile. Hence, they are advised to file these complaints and sought for relief accordingly.

 4. On appearance, OP filed the version; the defence set out by the OP in all these complaints are similar and identical. 

The brief averments as could be seen from the contents of the version is as under :

5. That the complaints are barred by time.  Complainants became the members with the Classic Developers, present OP has not enrolled them as a member.  So there is no privity of contract between complainants and the OP.  With all fairness when OP took over the said project from the Classic Developers as per the demand made by the complainants OP refunded the sital value with interest.  Complainants received the same without any protest or objection.  The said payment was made towards the full and final settlement of the claim. Now the complainants are estopped from reclaiming the arrears.  If the complainants want to recover the said arrears if any they have to file civil suit.  There is no consumer dispute, no cause of action has aroused in favour of the complainants. Complaints are devoid of merits. There is no deficiency in service on the part of the OP.  Among these grounds OP prayed for the dismissal of the complaints.

          6. This Forum vide its order dated 24.08.2009 dismissed all these complaints. Aggrieved by the said order except complainant in complaint No.1511/2009 all other complainants preferred Appeals No. 3043/2009 to 3049/2009 before the Hon’ble State Consumer Disputes Redressal Commission. The said seven appeals came to be allowed and order of this forum was set aside in Complaint No.1512, 1513, 1514, 1415, 1516, 1517/2009 and 1518/2009 and matter remanded for fresh disposal with an observation that the liability of the OP/Respondents continues and developer is unable to complete the layout.  Since OP has insisted for enhanced cost of the sites in another project complainants have not agreed to pay the enhanced sital value.  The demand of the complainants for the refund with interest at 18% p.a. appears to be reasonable.  Though OP has contended that amount already refunded in the year 2006 itself but failed to produce the bank statements to establish that the cheques have been encashed or not.  Further observed that there is a binding contract between the complainants and OP. OP has taken over the project from the earlier developer. Hence OP is bound to pay the balance amount with interest and present market value has reached the Sky and would get more value for money what the complainants have invested. OP has not produced any documents to show that whether the said cheques issued to the complainants/appellants have been encashed or not.  There was no finding on that point.  On these ground matter remanded for fresh disposal to give an opportunity to OP to produce documents.

  7. In view of the above said facts, the points now that arise for our consideration in these complaints are as under:

Point No. 1 :- Whether the complainants have Proved

                     the deficiency in service on the part of

                      the OP?

     Point No. 2 :- If so, whether the complainants are

                   entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

8. 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:

Point No.1:-  In Negative

Point No.2:-  Negative

Point No.3:-  As per final Order.

R E A S O N S

9. At the outset it is not at dispute that these complainants became the members of the project floated by Classic Developers in the name and style ‘Sri.Balaji Nagar’ and the said developer having accepted their membership allotted them the membership number. Each complainants opted to purchase the site measuring 30 ’ x 40 ’ for a total cost of Rs.60,000/-. They paid part of the sital value as noted in the chart above.  It is also not at dispute that subsequently the said project was taken over by present OP from the Classic Developers.  Hence OP stepped into the shoes of the earlier contractor i.e classic developers and liability of the OP continues.  It is also not in dispute that the present OP is also unable to complete the project and allot the site. If the layout was ready for allotment, OP ought to have informed the complainants to pay the balance of sital value within the stipulated period. No such attempt has been made by the OP. When OP insisted the complainants to pay the enhanced cost of the sites in another project; complainants have not agreed to pay the enhanced sital value and demanded for refund of the amount paid by the complainants with interest at 18% p.a. OP has refunded the deposited amount with 25% of deposit additional amount to the respective complainants on 23.02.2006 as noted in the chart.  Complainants received the amounts without any objection and protest. 

10. After the remand of the matters, complainants in all seven complaints filed a memo claiming balance interest at the rate of 18% p.a. from 03.07.1996 to 01.02.1998. OP filed additional affidavit evidence along with documents such as letters of the complainants dated 13.12.2006 regarding cancellation of membership, receipt acknowledging the receipt of cheques towards full and final settlement, copy of the membership card and bank statement of OP. We have perused the documents produced by the OP. Each of the complainants have accepted the amount noted in the chart in full and final settlement without registering their protest. Now complainants cannot re-agitate their rights once again by filing these complaints.

11. In order to substantiate the fact that OP has refunded the amount in the year 2006 itself through cheques it has produced its bank statement and established that each of the complainants has withdrawn the amount on the respective dates mentioned in the bank statement of account for the period from 01.04.2006 to 10.03.2007. So complainants are now estopped from claiming the arrears.  From the available evidence on record it is clear that complainants have received the amount in full and final settlement towards the cancellation of the membership.  The contents of the said letters produced by OP are not disputed by the complainants.  When that is so now the complainants after 2½ years filed these complaints which are an after thought.  There is no cause of action to these complaints.  Complainants have failed to establish the alleged deficiency in service on the part of the OP. Complaints are devoid of merits. Hence in our considered view complainants are not entitled for the relief claimed. Accordingly we proceed to pass the following:

O R D E R

Complaint Nos.1512/2009, 1513/2009, 1514/2009, 1515/2009, 1516/2009, 1517/2009 & 1518/2009 are dismissed.  In view of the nature of dispute no order as to costs.

The original order shall be kept in the file of the complaint No.1512/2009 and a copy of it shall be placed in the file of the other respective complaints.

(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 9^th day of March 2011.)

                                                PRESIDENT

   MEMBER                                         MEMBER

gm.