COMPLAINT FILED: 28.01.2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 08th APRIL 2009<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO. 233/2009<br /> <br /> <br /> COMPLAINANT C. Tulasiram Singh,<br /> S/o. B. Chandra Singh,<br /> 302, Doddagollarahatti,<br /> Pipeline Road,<br /> Opposite Water Tank, <br /> Magadi Road,<br /> Bangalore – 560 091.<br /> <br /> <br /> Advocate (A. Anil Kumar Shetty)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. M/s. Granity Properties <br /> Pvt. Ltd.,<br /> A company registered under the Companies Act, 1956,<br /> #43, 3rd Cross, 10th A Main,<br /> Indiranagar 2nd Stage,<br /> Bangalore – 560 038.<br /> Rep. by its Managing Director.<br /> <br /> <br /> 2. Orange Properties Pvt. Ltd.,<br /> A company registered under the Companies Act, 1956,<br /> #405&406, Prestige Meridian II,<br /> 29-30, M.G. Road,<br /> Bangalore – 560 001.<br /> Rep. by its Managing Director.<br /> <br /> Advocate for OP.2 <br /> (T.S. Venkatesh)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to refund Rs.3,67,500/- with interest and pay a compensation of Rs.10,00,000/- and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant being lured away with the advertisement and publicity given by OP.1, who claims to be the developers and promoters of the townships in the name and style “European Township” at Bidarahalli Hobli, Bangalore, thought of purchasing a plot of his choice, then entered into an agreement on 18.10.2008. OP.2 is the Marketing Agent of OP.1. Then complainant paid in all Rs.3,67,500/- towards the cost of the said plot to OP.1. OP.1 acknowledged the same. But thereafter failed to complete the said project and register the plot in his favour. On enquiry complainant came to know that the BDA has not approved the said plan and layout. Then complainant immediately wrote a letter to OP to cancel the agreement and refund the cost paid with interest and compensation on 10.11.2008, there was no positive response. Though complainant invested his hard earned money, he is unable to reap the fruits of his investment because of the hostile attitude of the OP’s. Hence complainant felt the deficiency in service. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On admission and registration of the complaint, notices were sent to the OP’s. Though OP.1 served with a notice, remained absent without sufficient reason or cause, hence OP.1 is placed ex-parte. OP.2 appeared and filed the version mainly contending that it is only a Marketing Agent of OP.1. There is no privity of contract. OP.2 is only a communicator between complainant and OP.1. Complainant has not availed the services of OP.2. Hence OP.2 is not liable to pay the amount claimed under the petition. There is no deficiency in service on the part of OP.2. Among these grounds, OP.2 prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP.2 has also filed the affidavit evidence. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP’s?<br /> <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 /> <br /> 5. 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:<br /> <br /> Point No.1:- In Affirmative in part<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the OP.1 is engaged in development and promotion of residential layouts in the name and style “European Township” and OP.2 is the Marketing Agent of OP.1. It is also not at dispute that OP.1 agreed to sell a plot to the complainant under agreement dated 18.10.2008. Towards the cost of the said plot OP.1 has received Rs.3,67,500/-. The documents to that effect are produced. Now the grievance of the complainant is that though he paid lump sum amount of the plot, OP.1 failed to allot a plot and register a plot in his favour. On enquiry complainant came to know that the alleged layout is not approved by the BDA. Then complainant immediately sought for the refund of the said money by addressing a letter to OP.1 and also sought for the cancellation of the agreement. The documents to that effect are produced. Though OP.1 agreed to refund the said amount by the end of December 2008 so for so good OP.1 has not kept up its promise. Hence complainant felt the deficiency in service.<br /> <br /> 7. The evidence of the complainant, which finds full corroboration with the contents of the undisputed documents, appears to be very much natural, cogent and consistent. There is nothing to discard the sworn testimony of the complainant. It is a quality of evidence that is more important than that of the quantity. The non-appearance of the OP.1 leads us to draw an inference that he admits all the allegations made by the complainant in toto. Of course OP.2 being only a Marketing Agent, there is no privity of contract between OP.2 and the complainant. In the strict sense complainant has not availed the services of the OP.2 nor any consideration is passed in favour of the OP.2. Hence we find the role played by OP.2 is that of a communicator between the complainant and OP.1. There is an obligation and liability on the part of OP.1, OP.2 is not a party to the said sale agreement. Hence for these reasons we find there is a substance in the defence set out by OP.2 that there is no deficiency in service on their part.<br /> <br /> 8. In view of the discussions made by us in the above said paras, we are satisfied that complainant is able to prove the deficiency in service against OP.1. Though he has invested his hard earned money, he is unable to reap the fruits of the investment because of the hostile attitude and carelessness of OP.1. OP.1 having retained the said huge amount for all these days accrued the wrongful gain to self and thereby caused wrongful loss to the complainant, that too for no fault of his. Under such circumstances the complainant is entitled for the relief claimed. In view of the fact that the proposed residential layout is not approved by the statutory authority like BDA, in a nearest future there is no possibility of OP.1 selling the plot in favour of the complainant. Complainant cannot kept waiting indefinitely. Hence for these reasons we answer point nos.1 and 2 accordingly and proceed to pass the following: <br /> <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP.1 is directed to refund Rs.3,67,500/- with interest at the rate of 12% p.a. from 18.10.2008 till realization and pay a compensation of Rs.25,000/- and litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 weeks from the date of its communication. <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 08th day of April 2009.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> p.n.g. <br /> <br /> <br /> <br />