COMPLAINT FILED ON: 31.07.2010
DISPOSED ON: 12.01.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 12TH JANUARY 2011
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.1800/2010
Complainant | S. Suresh Chander, # 702, 5th “D” Cross, 7th Main, 80 Ft. Road, HRBR Layout, Kalyan Nagar, 2nd Block, Bangalore – 560 043. In Person V/s. |
OPPOSITE PARTIES | 1. Granity Properties Pvt. Ltd., 43, 3rd Cross, 10th A Main, Indiranagar 2nd Stage, Indiranagar, Bangalore – 560 038. Rep: by Managing Director. 2. Ashfak Ahmed, Managing Director, Granity Properties Pvt. Ltd., 74, Masjid Road, Krishnarajapuram Post, Bangalore. Advocate: Sri. BLF 3. Aajaz Ahmed, Director, (Granity Properties Pvt. Ltd.,) 74, Jahangir Manzil, Masjid Road, Krishnarajapuram, Bangalore. 4. Shri. Vijay Tata Ravipathi, Sole Proprietor, Orange Properties, 114/1, Tirumala Towers, Banaswadi Outer Ring Road, Opp: to ASR Kalyanamantap, Bangalore – 560 043. OPs-1, 3 and 4 Ex-Parte |
O R D E R
SRI. B.S.REDDY, PRESIDENT
The complainant filed this complaint seeking direction against the Opposite Parties-1 to 3 (herein after called as O.Ps) to refund an amount of Rs.12,00,000/- with interest at 24% p.a. from the date of agreement till the date of realization and to direct OP-4 to pay compensation of Rs.3,00,000/- with litigation costs on the allegations of deficiency in service on the part of the OPs.
2. The brief facts leading to this complaint are that:
OP-1 being a registered company incorporated under the Companies Act 1956, OPs-2 and 3 being the Managing Director and Director respectively of OP-1 engaged in business of forming layouts and development of residential townships advertised through OP-4 a proprietor of Orange Properties with regard to “European Township” project at Bangalore East Taluk, Old Madras Raod. The complainant being lured away with the advertisement paid totally an amount of Rs.12,00,000/- as initial payment for purchasing a plot bearing No.970 and booked the same. An amount of Rs.2,00,000/- and Rs.5,00,000/- was paid through cheques issued in favour of OP-1 and an amount of Rs.5,00,000/- paid in cash on 20.08.2008. OP-2 as a Managing Director of OP-1 acknowledging the receipt of the said advance amount executed agreement deed stipulating the terms and conditions. In the agreement deed it is provided that the property shown in the agreement deed is free from encumbrance, approvals in relation to the development of layout had been sought and was awaited. Further it was stipulated that on the failure of obtaining necessary approvals from BDA within three months from signing the agreement and completing all developments there to within 9 months, OP-1 would refund the entire amount with interest at 12% p.a. In the agreement it is also mentioned that OP-1 shall furnish the documents of the copies of BDA approval of the land. The complainant came to know that the OPs were not at all in a position to form any layout or sell any sites; OPs were planning to escape by closing their office; the complainant requested for refund of the deposit amount. The original agreement deed was taken back by OPs promising to refund the amount and OP-4 issued cheques in favour of complainant towards refund of the amount, but the said cheques were dishonoured. OPs failed to keep up their promises and failed to refund the amount paid, hence the complainant felt deficiency in service and was advised to file this complaint seeking necessary relies as stated above.
3. OPs-1, 3 & 4 inspite service of notices failed to appear, hence placed ex-parte.
4. On appearance, OP-2 filed version contending that no case has been made out against him and all the grievances are against OP-4. It is stated that as admitted by the complainant, the transaction is with OP-4 and he has received the cheques from OP-4 towards the refund of the amount, hence this OP is not responsible for any acts of OP-4. Further it is stated that the complainant has admitted that by rescinding the agreement, he has received the post dated cheques from OP-4, thereby severing alleged contract if any with this OP, this OP shall be discharged on this ground alone. It is admitted that OP-4 has undertaken to market residential sites proposed to be formed, it is not within the knowledge of this OP about advertisement in all leading newspapers, hoardings displays through out Bangalore City. The complainant has to approach Civil Court against OP-4 for the appropriate reliefs. Further it is stated that the alleged agreement for sale supposedly executed by this OP has been handed over to executive of M/s Orange Properties. This OP has not handed over the same to the executive to hand over the same to complainant. The complainant has not taken any action against OP-4 for the offence U/s 138 of N.I. Act. Orange Properties have not only cheated the complainant, but several other investors. Hence it is prayed to dismiss the complaint.
5. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. OP-2 filed affidavit evidence in support of the defence version.
6. Arguments on both sides heard. Points for consideration are:
Point No.1:- Whether the complainant is proved
the deficiency in service on the part
of the OPs?
Point No.2:- If so, whether the complainant is
entitled for the reliefs now claimed?
Point No.3:- To what Order?
7. We record our findings on the above points:
Point No.1:- Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final order.
R E A S O N S
8. From the complaint averments and affidavit evidence of the complainant it becomes clear that the complainant being lured away with the advertisement and propaganda issued by the OPs with regard to the proposed project “European Township” booked plot No.970 and paid advance consideration of Rs.12,00,000/-. OP-2 is not denying the fact of complainant having booked the plot and paid the advance sale consideration of Rs.12,00,000/-. An amount of Rs.2,00,000/- initially paid through cheque dated 24.08.2008 and further sum of Rs.5,00,000/- was paid through cheque dated 11.09.2008 and cash of Rs.5,00,000/- was paid on 11.09.2008. OP-2 as Managing Director of OP-1 executed the agreement deed, the copy of which has been produced, acknowledging the receipt of advance sale consideration. OPs without acquiring any right, title over the property; without forming any layout made the complainant to put with huge amount of Rs.12,00,000/-. After the complainant came to know that OPs are unable to complete the project, no property is acquired by them; demanded for refund of the amount paid. OPs with on assurance of refunding the amount made the complainant to return the original agreement deed. OP-4 as proprietor of Orange Properties issued post dated cheques towards refund of the amount, but all the cheques when presented were bounced. As per the terms of the agreement deed OPs have agreed to refund the entire amount paid with interest at 12% p.a. if they fail to complete all development of the layout within 9 months from the date of agreement. Further it was stipulated that within 3 months from the date of signing the agreement, OPs obtain necessary approvals from BDA. OPs failed to furnish the documents and approvals of land conversion, layout plan of schedule property within the period of 3 months from the date of agreement. When the complainant came to know that OPs are not in a position to form the layout and representation made by them were all false, demanded for refund of the amount. When the OPs were not able to form the layout and fulfill their obligations; it would have been fair on their part in refunding the amount as per the terms of the agreement deed.
9. We are unable to accept the version of OP-2 that the transaction is only between the complainant and OP-4, cheques for refund of the amount has been received from OP-4 and OP-2 is not liable for refunding the amount. OP-2 as a Managing Director of OP-1 executed the agreement deed acknowledging the receipt of advance sale consideration of Rs.12,00,000/-. The cheques are issued in favour of OP-1 while paying the advance sale consideration. Merely because OP-4 has issued the cheques towards refund of the amount and the said cheques are bounced it cannot be said that OP-2 is discharged from its liability to refund the amount to the complainant. There is no merit in the contention that the complainant could approach the Civil Court seeking necessary reliefs against OP-4. As OPs-1 to 3 failed to fulfill the obligations to furnish the required documents regarding title of the schedule property and obtained approval from statutory authorities for formation of layout; they are bound to refund the amounts with interest at 12% p.a. The failure of OPs-1 to 3 in fulfilling the obligations as per the terms of the agreement and failure to refund the amount to the complainant, amounts to deficiency in service on their part.
10. The reliefs claimed against OP-4 is to award compensation for causing mental agony and harassment, as OP-4 has mislead the complainant by widely publishing in all leading newspapers, misrepresenting the facts with sole aim to lure and induce the complainant to book the site thereby indulging in unfair trade practice. OP-4 made this complainant to part with huge amounts towards booking of the site in the proposed project of OPs-1 to 3 knowing fully well that OPs-1 to 3 have acquired no title over the property and the properties were not in their possession. The complainant was made to suffer mental agony and harassment on account of the act of OP-4; as such OP-4 is liable to pay compensation. Taking into consideration of all the facts and circumstances it would meet ends of justice by awarding compensation of Rs.25,000/- to the complainant directing OP-4 to pay the same. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is allowed in part. OPs-1 to 3 are directed to refund an amount of Rs.12,00,000/- with interest at 12% p.a. from the respective date of payments till the date of realization and OP-4 is directed to pay compensation of Rs.25,000/- to the complainant.
OPs are directed to pay litigation cost of Rs.2,000/- to the complainant.
This order is to be complied within four weeks from the date of this order.
Send the copy of this order to both the parties free of cost.
(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 12th day of January - 2011.)
PRESIDENT
MEMBER MEMBER
Snm:
