BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 25^th DAY OF NOVEMBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to refund him a sum of Rs.3,50,000/- being principal amount together with interest in all totaling to Rs.5,49,500/- with litigation cost.

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

The complainant, a practicing Chartered Accountant at Bangalore approached the OP personnel with an intention to purchase two sites in a layout developed by OP under the name and style “Max Residency” situated near Devanahalli.  The complainant booked two sites bearing No.291 & 292 and paid an advance amount of Rs.75,000/- against each site.  He has also booked 19 bulk sites bearing Nos.249 to 268 and paid an advance amount of Rs.2,00,000/- by cheques as booking amount.  The OP promised to develop the layout with all amenities like roads, electricity etc., by the end of 30^th September 2012 and also promised to obtain necessary permission from BIAPPA by the end of 30^th September 2011.  The OP having received the advance amount as stated above failed to develop the layout within the stipulated period and also failed to execute the registered sale deeds in respect of the said sites and also failed to obtain necessary permission from BIAPPA.  Therefore, the complainant demanded OP to refund the advance amount paid by him.  Despite repeated reminders the OP neither executed the registered sale deed in respect of the said sites nor refunded the advance amount received by them.  This action of OP amounts to deficiency in service.  The OP is liable to return the principal amount of Rs.3,50,000/- received as advance and Rs.1,95,500/- being interest @ 18% p.a on the said amount from 16.05.2011 to 16.07.2014 together with litigation cost.

3. The OP in response to the notice issued appeared through their advocate and filed their version admitting the transaction as claimed by the complainant and also admitting the advance amount from the complainant as claimed by him and further contended as under:

That the complainant has paid a sum of Rs.3,50,000/- only towards booking amount.  Each site was booked at the price of Rs.700/- per square feet which comes to Rs.8,40,000/- per site.  The total price of the 19 sites comes to Rs.1,59,60,000/-, the complainant was to pay 15% of the total amount i.e., Rs.39,90,000/- for executing the agreement of sale.  However, the complainant failed to pay the advance amount as required.  Therefore, the OP could not execute the sale agreement.  There is no deficiency in service on the part of the OP.  The complainant himself has defaulted in complying the terms and conditions of the booking form.  Therefore, the OP prays for dismissal of the complaint.

4. On the rival contentions of both the parties, the points that arise for our determination in this case are as under:

        5. The complainant in support of his claim submitted his affidavit evidence in lieu of oral evidence so also the OP.  The complainant filed written arguments.

6. Perused the allegations made in the complaint, the averments made in the version, the sworn testimony of both the parties and the written submissions of the complainant.  We have heard the oral arguments advanced by both the parties.

7. Our answer to the above points are as under:

REASONS

8.  The transactions in respect of site Nos.291 & 292 as well as 19 bulk sites bearing Nos.249 to 268 is admitted by the OP.  OP also admitted the receipt of Rs.1,50,000/- being the advance amount towards site Nos.291 & 292.  The OP also admitted the receipt of Rs.2,00,000/- from the complainant towards the booking of 19 bulk sites bearing Nos.249 to 268.

9. During pendency of the case, the OP deposited a sum of Rs.3,50,000/- in the Forum to be paid to the complainant.  On the request of the complainant a cheque for the said amount of Rs.3,50,000/- on 03.02.2015 was issued to him.  Thus the complainant received the entire advance amount he has paid to the OP towards the purchase of the sites No.291 & 292 as well as 19 bulk sites.

10. The learned advocate for the complainant argued that the OP has failed to pay interest on the advance amount received by them since there is deficiency in service on their part.  It is also argued that the OP without there being valid cause withheld the said sum of Rs.3,50,000/- since from 16.05.2011 till 13.02.2015 therefore he is liable to pay interest on the same together with litigation cost.

11. Against this, the Learned Advocate for the OP argued that since the complainant failed to pay 15% of the price of bulk sites, agreement of sale could not be executed in his favour.  Therefore, it is argued that there is no any deficiency of service on the part of the OP. 

12. Admittedly the OP has executed Assignment Agreement dated 24.08.2011 in favour of complainant in respect of site Nos.291& 292.  It is mentioned in the copies of said Assignment Agreement that the OP would develop the layout by providing amenities like Tar Road, swimming pool, club house, Zim, Tennis court, Jogging tract, children’s play area, park, water connection to individual sites, Sewage, Drainage, Electricity, compound wall by January 2012.  However, it is apparent from the version filed by the OP that they could not complete the layout work as promised by them in the Assignment Agreement dated 24.08.2011.  The failure on the part of the OP in developing the layout as promised by them in the Assignment Agreement within a stipulated period amounts to deficiency in service.  The OP even had not completed the formation of layout on the date of filing of the complaint in the month of August 2014.  The OP neither completed the developments of the layout within stipulated period and executed the sale deed nor refunded the advance amount to the complainant when demanded by him.  This conduct of OP amounts to gross deficiency of service.  OP did not explain either in their version or in their affidavit as to what prevented them from completing the layout and what prevented from them executing the sale deed of the said sites in favour of the complainant by receiving balance amount.

13. Therefore, we are of the opinion that the OP has withheld huge sum of Rs.3,50,000/- without any valid reasons.  Therefore, the OPs are liable to pay interest @ 18% p.a to the complainant on the said amount of Rs.3,50,000/-.  As already stated above, the OP has deposited the said sum of Rs.3,50,000/- in the Forum on 13.02.2015 however the OP has failed to deposit interest on the same.  Therefore, the OP has to be directed to pay interest on the said amount of Rs.3,50,000/- @ 18% p.a from the date of receipt till 13.02.2015, together with litigation cost of Rs.5,000/-.  Accordingly point No.1 is answered.  The order could not be passed within the stipulated time due to heavy pendency.

14. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OP is directed to pay interest @ 18% p.a on Rs.3,50,000/- from 16.05.2011 till 13.02.2015 together with litigation cost of Rs.5,000/-.

The OP shall comply the order passed by this Forum within six weeks from the date of communication.

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

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 25^th day of November 2015)

MEMBER                                                            PRESIDENT

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Witnesses examined on behalf of the complainants dated 22.01.2015.

1. Sri.Abhimanyu Kumar

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 19.03.2015.

1. Sri.Roopesh Sulegai    

Document produced by the Opposite party:

MEMBER                                                             PRESIDENT

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