COMPLAINT FILED ON: 30.08.2010

DISPOSED ON:16.07.2011

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

DATED THIS THE 16^th JULY– 2011

       PRESENT:- SRI. B.S.REDDY                 PRESIDENT                        

                         SMT. M. YASHODHAMMA         MEMBER    

                         SRI. A. MUNIYAPPA                 MEMBER

O R D E R S

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 to direct the OPs (herein after called as O.Ps) to refund the amount of Rs.2,00,000/- deposited towards allotment of site with interest at 24% p.a. and compensation of Rs.5,00,000/- on the allegation of deficiency in service on the part of the OPs.

2.  The case of the complainant to be stated in brief is that:

          OP1 is a company incorporated under the Companies Act 1956, OP3, OP4 are directors of the said company. OP2 is a proprietary concern, OP5 is its Vice President, OP6 is its Proprietor. OP1 & OP2 advertised with regard to a residential township an ‘European Township’ stating that the sites would be made available to the members of the public and the complainant being carried away with advertisement and broacher issued, booked site bearing NO.671 measuring 30 X 40 feet by paying initial payment of Rs.50,000/- on 28.06.2008 and further sum of Rs.1,50,000/- on 03.07.2008 in all Rs.2,00,000/- to OP1. OP2 issued the receipt for the same, as the amount was credited to the account of OP1. OP5 failed to form the proposed township, the complainant demanded for refund of the amount paid. The complainant was directed to return all original receipts and documents as a pre-condition to receive the refund of the amount. On 19.02.2009 the complainant returned original documents to OP2 and OP2 issued two post dated cheques dt.17.05.2009 and 27.05.2009 towards refund of the amount but both the cheqes were dishonoured on the ground, the account was seized. Some of the persons who booked the sites filed Criminal complaints against the OPs and the case was registered for the offence punishable Under Section 420 IPC. OP3 and 6 filed Criminal Petitions before the Hon’ble High Court Under Section482 of CRPC to quash FIRS filed against them. The said Criminal Petitions were dismissed with an observation that the FIR should be quashed subject to payments by these OPs. OPs have not made payments. The complainant felt deficiency in service on the part of the OPs in not refunding the amount deposited and filed this complaint.

3. OP1 and 4 remained absent, hence placed ex-parte. The complaint against OP5 dismissed as not pressed.

4. OP3 filed version contending that the transactions are between the complainant and OP6, OP3 is in no way responsible for any act of OP6. The complainant by rescinding agreement received the post dated cheques from OP6, there by severing alleged contract if any with OP3. The alleged agreement for sale executed by this OP2 was handed over to the complainant by executive of M/s Orange Properties, this OP3 has not handed over to the executive of M/s Orange Properties to handover to the complainant. The M/s Orange Properties have not only cheated the complainant but several other investors.

5. Hence, it is prayed to dismiss the complaint. OP2 and 6 filed joint version contending that OP2 is just a marketing agent. OP2 and 6 were required to market the sites which were to developed by OP1. Acting on the agreement entered into between the parties, OP2 invested huge amount for promoting the sales of the sites by way of advertising in several newspapers, several customers approached OP2 & 6 and booked the plots by paying advance in favour of OP1. The complainant also paid the amount to OP1. OP1 failed to develop the township and the customers started demanding refund of the amount. OP1 requested OP6 to issue cheques for the amounts collected and they shall pay the same to OP2 and 6. Believing the words of OP1, OP2 & 6 issued the cheques towards the refund of the amount but OP1 failed to pay the amount as a result the cheques were bounced. OP2 and 6 are not responsible for the amount received by OP1. OP2 & 6 are not liable to pay any amount to the complainant. Hence, it is prayed to dismiss the complaint.

6. The complainant in order to substantiate complaint averments filed affidavit evidence. In spite of sufficient opportunity given OP2, OP3 and OP6 not failed affidavit evidence.

7. The complainant filed written arguments. Heard from complainant’s side. OPs side taken has heard.

8. Points for our consideration are:  

      Point No.1:- Whether the complainant proved the        

                          deficiency in service on the part of

                            the OP?

Point No.2:- Whether the complainant is entitled

                   for the reliefs claimed?

       Point No.3:- To what Order?

9.   We record our findings on the above points are:

Point No.1:- Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

At the out set, it is not at dispute that the complainant on the basis of the advertisements and brochures issued by OPs with regard to a project called ‘European Township’ wherein sites would be formed and sold to the members of the public, paid an amount of Rs.50,000/- initially on 28.06.2009 and further sum of Rs.1,50,000/- on 03.07.2008 applied for allotment of site bearing No.671 proposed to be formed in the said township. OP2 has issued the receipt acknowledging the payment of Rs.2,00,000/- to OP1. The total cost of the said site was fixed at Rs.13,50,000/-. OPs failed to develop the said township and allot the site. The complainant and other investors filed Police complaint against OP3 & OP6 and the case was registered for the Offence punishable Under Section-420 IPC. OP3 & OP6 approached the Hon’ble High Court to quash the proceedings of Criminal case registered by CCB Police. The said Criminal Petitions were dismissed with an observation that in the event of payments are not made to the investors as undertaken, the Police is at liberty to proceed against the accused. Quashing of the FIR is subject to complete payment to the complainants. OP6 as Proprietor of OP2 filed Criminal Petition No.3866/2009 Under Section-482 CRPC. The said petition was dismissed with an observation that the petitioner is at liberty to compromise petition before the trial court by returning the investment to all the investors cheated by him and after obtaining their consent for compromise. The copies of the Orders passed by the Hon’ble High Court in Criminal Petitions are produced by the complainant. There is no merit in the contention of the OP6 that the two cheques issued towards the refund of the amount to the complainant was on the assurance of OP1 that the amount would be paid to OP6 but the amount not paid, hence OP6 is not liable for the said amount. OP6 is the main person for having issued advertisements and brochures making the complainant and others to believe that the township would be developed and sites would be allotted. Further, the original documents were returned back by the complainant only on the assurance of refunding the amount by OP6. The cheques issued by OP6 are bounced. The acts of OPs in not developing the township and allotting the site or refunding the amount to the complainant amounts to deficiency in service on the part of OPs. The series of complaints filed against these OPs in respect this same project are allowed by this Forum and other Forums the copies of the orders are produced by the complainant.   Under these circumstances, we are of the view that the complainant is entitled for refund of the amount with interest at 18% p.a. from the respective date of payments till the date of realization. Awarding of interest is to be taken towards loss of returns for the amount paid and also compensation. Accordingly, we proceed to pass the following:               

                                      O R D E R

The complainant filed by the complaint is allowed in part.

The OPs 1 to 4 and OP6 are directed to refund an amount of Rs.2,00,000/- to the complainant with interest at 18% p.a. from the respective date of payment till the date of realization and pay litigation cost of RS.3,000/- to the complainant.

This order is to be complied within four weeks from the date of this order.

Send copy of this order to both the parties free of costs.

(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 16^th day of July – 2011.)

MEMBER                           MEMBER                   PRESIDENT                  

  Cs: