COMPLAINT FILED: 29.11.2010

DISPOSED ON: 06.06.2011

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

 6^th DAY OF JUNE-2011

  PRESENT :-  SRI. B.S. REDDY                          PRESIDENT

                     SMT. M. YASHODHAMMA                 MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER

       COMPLAINT NO. 2687/2010

O R D E R

Sri.B.S.REDDY,PRESIDENT

1. The complainant filed this complaint Under Section 12 of the Consumer Protection Act of 1986 seeking directions against the opposite party (herein after refer to as OP) to pay sum of Rs.1,80,400/- with interest at 18% p.a. and to pay compensation of Rs.50,000/-on the allegation of deficiency in service on the part of the OP.

2.      The brief averments made in the complaint are as follows:

          The Opposite Party has entered into an agreement of sale with the complainant agreeing to sell the plot No.355 in the Layout Called “Aishwarya Royals” at Kolavanahalli Village, Nandi Hobli, Chikkaballapur Taluk and District measuring 30 X 40 feet for a total sale consideration of Rs.5,41,200/- on 04.12.2007 and as on the date of the agreement of sale the complainant paid advance sale consideration of Rs.1,80,400/- through cheque dt.03.12.2007 drawn on ICICI Bank. The complainant was ready and willing to perform his part of the contractual obligation by paying the balance consideration to the Opposite Party and get the registered sale deed in respect of the said site. The Opposite Party on one or the other pretext went on postponing the registration of the sale deed. The complainant recently enquired in the office of the Opposite Party and learnt that the project “Aishwarya Royals” intended to be formed is closed and DTCP plan is not approved and that the Opposite Party would return the advance amount together with interest. The complainant requested the Opposite Party to return the advance amount, though the Opposite Party agreed to do so, but with a malafide intention had not returned the advance in order to enrich themselves illegally and unlawfully. The complainant has suffered great inconvenience, hardship, injury, the act of the Opposite Party in not refunding the amount amounts to deficiency in service. The complainant caused legal notice to the Opposite Party demanding to refund the amount with interest at 18% p.a. The Opposite Party has not replied to the said notice nor complied the demand hence the complaint seeking relief stated above.

3.      The Opposite Party through his Advocate got filed the Version without verification of the pleadings. The version filed by the Advocate for the Opposite Party without signature of the Opposite Party and without verification, the pleadings is not at all valid. However, in the version filed by the Advocate for the Opposite Party, It is stated that the Opposite Party is ready to execute the registered sale deed, if the complainant chose the site in the project “Down town” which is adjacent to the proposed Aishwarya Royals project. If the complainant is not interested in the down town, the Opposite Party sought some more time for completion of the Aishwarya Royals project and execute the sale deed as early as possible immediately after conversion and approval of the Layout Plan.

4.      In order to substantiate the complaint averments, the complainant filed his affidavit evidence and produced documents. The Opposite Party has not filed any affidavit evidence. The arguments on the complainant side heard, the Opposite Party side was taken as heard.

5       In view of the above said facts, the points now that arises for our consideration in this complaint are as under:

       Point No.1:-  Whether the complainant has

   proved the deficiency in service

    on the part of the OP?

Point No.2:-   If so, whether the complainant is

                     entitled for the relief’s claimed?

       Point No.3:-  To what Order?

6.      We record our findings on the above points:

Point No.1:- In Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

7.           We have perused the pleadings, documents produced, and affidavit evidence of the complainant. After going through these materials it becomes clear that the Opposite Party being a developer entered into an agreement to sell with the complainant with regard to site No.355 proposed to be formed in the Layout Aishwarya Royals measuring 30 X 40 feet for a total consideration of Rs.5,41,200/- and received advance sale consideration of Rs.1,80,400/- through cheque dt.03.12.2007 drawn on ICICI Bank. The said agreement of sale executed by the Opposite Party contains the terms and conditions along with the acknowledgement for having received advance sale consideration of Rs.1,80,400/-. The balance sale consideration of Rs.3,60,800/- was agreed to be paid by the complainant within two months from the date of DTCP approval. The Opposite Party failed to fulfill its obligation informing the proposed Layout. As the Opposite Party has not obtained conversion order and Layout plan approval. For the legal notice got issued by the complainant which has been duly served, the Opposite Party has not replied for the same nor complied the demand. The only defence of the Opposite Party is in another Layout called “Down town” sites are available, if the complainant is willing to take the site in the said Layout, the Opposite Party is prepared to execute the sale deed. The complainant is not prepared to accept that proposal hence the Opposite Party cannot avoid its liability to refund the amount received towards advance sale consideration. Clause-13 of the agreement deed provides that in case of land has not been approved by the DTCP, initial amount will be refunded with interest as per the prevailing Bank rate of interest. The complainant cannot be made to wait indefinitely till the Opposite Party gets conversion order and Layout plan approval for the proposed project, so as to make the complainant to obtain the sale deed after completion of all de-formalities. When the Opposite Party was unable to get the conversion and approval of the Layout it would have been fair enough on his part to refund the advance amount received. The act of the Opposite Party in not refunding the advance sale consideration amounts to deficiency in service. The complainant is entitled for refund of the said amount with interest at 12% p.a. along with litigation costs. Accordingly, we proceed to pass the following:

O R D E R

          The complaint filed by the complainant is allowed in part. OP is directed to refund an amount of 1.80,400/- along with interest at 12% p.a. from 04.12.2007till the date of realization and pay litigation costs of Rs.2,000/- to the complainant.

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

(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 06^th day of June 2011.)

MEMBER                           MEMBER                   PRESIDENT

Cs.