BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 29TH JUNE 2010 PRESENT:- SRI. B.S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT Nos.2695, 2696, 2697, 2698, 2699, 2700, 2701, 2702/2009 COMPLAINT NO.2695/09 COMPLAINANT Mr. Anand Venkataramana Bhat, A 46, Century Carbel, 60 Ft Road, Sahakar Nagar, Bangalore 560 092. Advocate: Sri K.P. Thriumurthy COMPLAINT NO.2696/09 COMPLAINANT Smt. Neelambika G.S., No.53, 50 Feet Road, Hanumantha Nagar, Bangalore 560 019. Advocate: Sri K.P. Thriumurthy COMPLAINT NO.2697/09 COMPLAINANT Mr. Promod Kumar Choudhury, Frontier Foam Products Pvt. Ltd., Industrial Area, Bagmuni Maidan, Guwahati 781 021. Advocate: Sri K.P. Thriumurthy COMPLAINT NO.2698/09 COMPLAINANT Smt. Manju Choudhury, Aged about 40 years, W/o Dinesh Kumar Choudhury, Frontier Foam Products Pvt. Ltd., Industrial Area, Bamuni Maidan, Guwahati 781 021. Advocate: Sri K.P. Thriumurthy COMPLAINT NO.2699/09 COMPLAINANT Sri. Nikhil S Dhruv, 301-6-, 6th Main Road, Mahalaxmi Layout, Bangalore 560 086. Advocate: Sri K.P. Thriumurthy COMPLAINT NO.2700/09 COMPLAINANT Mr. Ketan S Dhruv, 301-6-, 6th Main Road, Mahalaxmi Layout, Bangalore 560 086. Advocate: Sri K.P. Thriumurthy COMPLAINT NO.2701/09 COMPLAINANT Mr. Eeranna, Aged about 48 years, S/o Sri. Veerbhadraiah, No.29, FCI Colony, Mysore Road, BHEL Post, Deepanjalinagar, Bangalore 560 004. Advocate: Sri K.P. Thriumurthy COMPLAINT NO.2702/09 COMPLAINANT Smt. Renuka B Raman, No.701, Vijay Tower, II Main Road, Vijayanagar II Stage, Bangalore 560 040. Advocate: Sri K.P. Thriumurthy V/s OPPOSITE PARTY M/s Megacity (Bangalore) Developers and Builders Pvt. Ltd., No.1, 5th Cross, Chandraloka Apartments, Gandhinagar, Bangalore 560 009. Rep: by its Managing Director, Mr. C.P. Yogeeshwara. Advocate: Sri. R. Tharesha O R D E R S In all these complaints filed U/s. 12 of the Consumer Protection Act of 1986, the complainants are seeking direction against Opposite Party (herein after called as O.P) to execute and register the sale deeds in respect of the sites allotted in their favour. In addition the complainants in complaint No.2695/09 to 2698 and 2702/09 claiming compensation of Rs.2,00,000/- each and complainant in complaint No.2701/09 claiming compensation of Rs.3,00,000/-. Further the complainants in complaint Nos.2699/09 and 2700/09 are seeking alternative direction to refund the part of the sale consideration paid with interest at 18% p.a. and to pay compensation of Rs.1,00,000/- to each, on an allegations of deficiency in service on the part of the OP. As the OP in all these complaints is common, question involved and relief claimed being the same, in order to avoid the repetition of facts and multiplicity of reasonings; in the interest of justice, all these cases stand disposed of by this common order. 2. The brief averments as could be seen from the contents of the complaints are that: OP being engaged in the business of land development by forming residential layouts, during 1995 gave wide publicity that they are reputed developers and builders and about the launch of new township by name Vajragiri Township on Mysore Road located just 24 kms from Bangalores green belt. The complainants being attracted by this advertisement of OP, with an intention to purchase residential sites became the members of the OP by paying prescribed amount. OP entered into sale agreements with all the complainants except complainant in complaint No.2697/09 for sale of sites in Vajragiri Township and collected the sale consideration in monthly installments. In complaint No.2697/09 allotment letter is issued in favour of complainant. Further OP also collected development charges, stamp duty, registration charges, miscellaneous charges, etc., from some of the complainants. After receipt of the amounts OP has allotted sites and issued possession certificate to the some of the complainants. For the convenience sake the membership number, date of sale agreement, total amount paid by each of the complainants is as noted in the form of a chart below: Complaint Nos. Membership No. Date of allotment/ agreement to sell Total amount paid 2695/09 1875 11.07.1995 Rs.1,61,850/- 2696/09 8120 15.03.1996 Rs. 88,200/- 2697/09 9321 08.12.2000 Rs.1,51,400/- 2698/09 9498 30.05.1996 Rs.1,65,200/- 2699/09 3158 31.07.1995 Rs. 66,400/- 2700/09 3159 31.07.1995 Rs. 67,200/- 2701/09 5668 15.03.1995 Rs.1,67,833/- 2702/09 6383 15.03.1996 Rs.2,97,000/- The complainants caused the legal notice to the OP to register sites allotted, but there was no response from OP. Thus each one of these complainants felt the deficiency in service on the part of the OP. Under the circumstances they are advised file these complaints and sought for the reliefs stated above. 3. On appearance, OP filed the version. The defence set out by the OP in all these complaints is almost same and identical. It is contended that OP applied for conversion of agricultural lands into non agricultural to form the layout to the concerned revenue department. The proposed layout comes within Bangalore Mysore Infrastructure Corridor area planning authority and therefore the revenue department sought clarification / no objection from BMICAPA by its letter dated 18.07.2001. BMICAPA issued letter dated 13.08.2001 to the revenue department to the effect that the lands in question cannot be converted for non agricultural purposes. In view of the same OP is not in a position to form a residential layout as proposed earlier. The cause of action arose from the last payment of installment and the complainants have not taken any steps within 2 years from the last payment made, hence the complaints are to be dismissed on the ground of limitation. The complainants in complaint No.2697/09 and 2698/09 requested to refund the amount by canceling the allotment of sites, the allotment of sites was cancelled and the sites have been allotted to other members. The Complainants are estopped from filing the complaints. Further site No.461 allotted to the complainant in complaint No.2695/09 was formed out of Sy. No.28. Landlord of the said land entered into an agreement with OP for selling the land, after collecting the amount for conversion and sale consideration, has sold the land in favour of third party. The site No.7 allotted in favour of the complainant in complaint No.2701/09 was formed out of Sy. No.19, 47 and 48. The said lands are notified by the State Government for formation of ashraya sites. The same has been challenged by the landlord of Sy. No.19 in OS No.57/2003 and the lands where sites formed are involved in two suits namely O.S. 13391/2006 and O.S. 57/2003 pending before the Bangalore, Principal Civil Judge (Jr. Dvn.). In the version filed in complaint No.2702/09 it is contended that OP secured the conversion order in favour of the landlords, but before approval of the layout, the same lands have been notified by KIADB for the purpose of Industrial development, preliminary notification dated 11.12.1998 has been issued. OP has not allotted the sites, OP is awaiting further order by the Government. OP is not in a position to execute the sale deed. In all these cases OP is ready and willing to refund the amount with bank rate of interest. OP has invested amounts received from the complainants towards the purchase of the lands and huge investment is held up in civil litigation and the acquisition proceedings. Therefore OP is not liable to pay interest / damages claimed by the complainants. Thus it is contended that there is no deficiency in service on the part of the OP. Hence it is prayed to dismiss the complaints. 4. In order to substantiate the complaint averments, the complainants filed affidavit evidence and produced documents. The Director of the OP filed affidavit evidence and produced documents. 5. In the main complaint No.2695/09 the documents are produced with respect to the sale deeds and the list of property executed by OP in favour of M/s Prestige Bidadi Holdings and list of sites offered by OP in execution proceedings and copies of the orders passed by the Honble National Commission and State Commission in respect of the sites formed in the same layout in complaints filed by other complainants. 6. Written arguments filed by both the parties. Arguments on both sides heard. Points for consideration are: Point No.1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No.2 :- If so, whether the complainants are entitled for the relief now claimed? Point No.3 :- To what Order? 7. We have gone through the pleadings of the parties, affidavit and documentary evidence. In view of the reasons given by us in the following paragraphs our findings on: 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 8. At the outset it is not at dispute that the complainants became the members of the project floated by the OP in the name and style Vajragiri Township and intended to purchase sites of various dimensions. OP accepted their membership and allotted the sites. The complainants paid the amounts as shown in the above chart to the OP. The complainants in complaint No.2695/09, 2697/09, 2698/09, 2701/09 and 2702/09 paid the entire site value and development charges. OP has executed the deed of agreement to sell in favour of the complainants and the period fixed for completion of the project was 60 months. The grievances of the complainants is that inspite of receipt of the sale consideration and development charges, registration charges OP has not executed the registered sale deeds in respect of the sites in favour of the complainants who have paid the entire sale consideration; other complainants are prepared to pay the balance consideration with development charges and registration charges, hence OP failed to full fill its obligation, as such there is deficiency in service on the part of the OP. 9. The main defence set out in the version filed by OP is, the project could not be completed as the lands purchased for completing the project were not allowed to be converted to non agricultural purposes, some of the lands proposed were acquired by the State Government for KAIDB and in some lands ashraya sites were formed by the Government and civil litigations are pending. Further the land Sy. No.28 was sold by the landlords to the third party; inspite of the agreement executed in favour of OP in which site No.461 allotted to the complainant in complaint No.2695/09 was formed. The lands purchased for formation of layout comes within Bangalore Mysore Infrastructure Corridor area planning authority and the revenue department received letter dated 13.08.2001 from BMICAPA that the lands in question cannot be converted for non agricultural purposes. Thus OP is not in a position to form a residential layout as proposed earlier and OP is prepared to refund the amount with bank rate interest. 10. The brochure Annexure A relating to Vajragiri Township project issued by OP reveals that OP has launched Vajragiri Town Ship a new township on Mysore road 24 kms just out side of Bangalores green belt sandwiched between the existing highway and the proposed six lane express way. Vajragiri is prime property of about 500 acres. About 250 acres is being developed in the first phase; development of another 250 acres has now commenced. Further the dimension of sites and the cost and number of installments are also mentioned. Further it is stated that Vajragiri Township is a residentially converted layout approved by statutory authorities. This means that the plots carry all the legal sanctions that will enable the benefit of loan from all financial institutions and the LIC. The other details are also mentioned in the brochure attracting the intended purchasers to become the members and purchase the sites. Thus it becomes clear that as per the brochure OP has stated that the Vajragiri Township is residentially converted layout approved by statutory authorities. Now OP has come up with a version that the project could not be completed as the permission was not granted for converting the lands from agricultural to non agricultural purposes. 11. The complainants have produced the balance sheet of OP; the copies of the orders passed in the revision petition No.4615 4639/08 by the Honble National Commission in a petitions against OP directing OP to collect development charges as existed in 1999 and execute the sale deeds. Further in Appeal No.1540 to 1565/08 and Appeal No.1945 and 1947/08 OP has submitted no objection to execute the sale deeds in favour of the complainants as directed by the District Forum provided some more time is granted for execution of the sale deeds. Further the complainants have produced the list of execution cases in which OP has offered alternative sites to the complainants in those cases. The complainants have also produced the copies of the sale deeds in respect of the properties purchased by OP and sold to M/s Prestige Bidadi Holdings and also the details of the lands sold during 1995 2008 by OP. The copies of the sale deeds dated 13.06.2009 and 13.05.2009 reveals that OP has executed the sale deeds in respect of site bearing No.251 and 133 situated at Vajragiri Township in favour of the purchasers formed in Sy. No.13 and 14. The complainants also produced list of sites available for registration, in respect of duly converted sites of Megacity (Bangalore) Developers and Builders with Annexure 1 and 2 which show the sites standing in the name of the Directors and Managing Director of OP. Totally 386 sites are shown as available for registration. Further the details of the lands approved by BMRDA up to 20.01.1997 reveals that totally to an extent of 261.16 acres of land has been approved situated in different villages relating to the OP; the list of lands converted into residential purposes and registered in favour of OP company standing the name of Directors of OP in different villages is also produced. After going through the orders of the Honble State Commission in appeal No.1945 and 1947/08 it is clear that OP was directed to execute the sale deeds in favour of the complainants in respect of sites formed at Vajragiri layout. In appeal No.1540 to 1565/08 the Honble State Commission on the submission made by the learned counsel for the OP that OP has no objection to execute the sale deeds as directed by the District Forum; OP was granted time to execute the sale deeds till the end of November 2008. Thus it becomes clear that OP has executed the sale deeds in respect of the sites formed in Vajragiri Township in favour of some of the complainants. In view of the same we are unable to accept the contention of the OP, that no sites are available in the Vajragiri Township. 12. It is contended for the complainants that OP is selling the sites in Vajragiri Township to others at a higher rate; even though the sites are available OP is avoiding to execute the sale deeds with an intention of making un-law full gain. Thus it is contended that OP is to be directed to execute the sale deeds in respect of the sites allotted in favour of the complainants or any alternative sites of the same dimension and to pay compensation for the delay in executing the sale deeds and to put the complainants in possession of the same. 13. The complainants in complaint Nos.2695/09 and 2701/09 were allotted corner sites and OP collected additional land cost for having allotted the corner sites, apart from development charges, registration charges and miscellaneous charges. The complainants in complaint Nos.2697/09, 2698/09 and 2702/09 have paid the development charges apart from the entire site value. The complainants in complaint No.2697/09 and 2698/09 sought for refund of the amount by addressing letters to the OP, the copies of the said letters are produced. The complainant in complaint No.2696/09 has paid a sum of Rs.88,200/- out of the total cost of the site amounting to Rs.1,32,000/-. The complainants in complaint Nos.2699/09 and 2700/09 have paid part of the sale consideration amount of Rs.66,400/- and Rs.67,200/- respectively out of the total cost of each site of Rs.1,92,000/-. The complainants proved deficiency in service on the part of the OP, as OP inspite of receipt of the entire sale consideration, development charges, registration charges and miscellaneous charges failed to execute the sale deeds in favour of the complainants who have paid the entire sale consideration. Further OP has failed to refund the amount claimed by the complainants in complaint Nos.2697/09 and 2698/09 and also to the complainants who have paid part of the sale consideration, the same amounts to deficiency in service on the part of the OP. 14. OP has not produced the approved layout plan of Vajragiri Township and the total number of plots formed in the approved portion of the layout and the list of purchasers of all those sites to prove that no sites are available in respect of the approved portion of the layout. Further OP has also not produced any material to show that the sites proposed to be allotted in favour of these complainants were formed in the lands for which conversion order has been refused and civil litigation is pending and KIADB acquisition proceedings are initiated. Admittingly OP has executed the sale deeds in respect of the sites formed in the same layout for which the approval was given. Therefore it cannot be said that entire Vajragiri Township project was not approved and OP is unable to execute the sale deeds in respect of the sites formed in the said layout. OP failed to prove the fact that the sites allotted in favour of the complainants in these complaints were formed in the portion of the layout which has not been approved on account of failure to get the conversion order. 15. It is contended for the OP that the complaints are barred by limitation on the ground that the complaints ought to have been filed within 2 years of the last installments paid by each of the complainants. In our view when once OP accepted the sital value with a promise to allot sites to these complainants, till OP allot and execute the sale deeds recurring cause of action will accrue to these complainants. OP despite the receipt of legal notice failed to execute the sale deeds, as such these complainants were forced to approach this Forum within 2 years; as such the complaints are not barred by limitation. 16. In complaint No.2697/09 and 2698/09 the complainants have already sought for refund of the amounts paid through their letters dated 01.03.2007, the copies of which have been produced by OP. As per the defence version in view of the complainants request to refund the amounts, the allotment of the sites were cancelled and the same sites were re-allotted to other members. In our view in view of the fact that the complainants themselves have sought for refund of amount paid now they are not entitled to claim the relief for executing the sale deeds in respect of the sites allotted in their favour. They are entitled for the relief of refund of amounts paid with interest. 17. The complainants in complaint Nos.2695/09, 2701/09 and 2702/09 who have deposited the entire sale consideration and development charges are entitled for the relief directing the OP to execute the registered sale deed in respect of the sites and put them in possession of the same. Failing in which OP is to be directed to refund the amount paid by the complainants with interest at the rate of 12% p.a. and to pay compensation of Rs.1,00,000/- with litigation cost of Rs.2,000/- to each of the complainants. 18. The complainants in complaint Nos.2696/09, 2699/09 and 2700/09 have deposited only part of the sale consideration as such they are not entitled for the relief directing OP to execute the sale deeds in respect of the sites. They are entitled for the relief of refund of the amounts paid with interest and litigation costs. Under these circumstances we proceed to pass the following: O R D E R The complaints filed by the complainants are allowed in part. In complaint Nos.2695/09 and 2701/09 OP is directed to execute the registered sale deeds at its own cost in respect of the respective sites allotted in favour of the complainants and put them in possession of the same within three months from the date of this order or to allot any alternative sites of the same dimension in the same layout and execute the sale deeds at its own costs and put them in possession of the same within six months from the date of this order. Failing in which OP is directed to refund the entire amounts paid as shown in the chart at para 2 of the order with interest at 12% p.a. from the respective date of payments, till the date of realization and in addition to pay compensation of Rs.1,00,000/- with litigation cost of Rs.2,000/- to each of the complainants. In complaint No.2702/09 OP is directed to allot a site measuring 60 X 80 in Vajragiri Township layout and execute the registered sale deed in favour of the complainant and put her in possession of the same within three months from the date of this order. Failing in which OP is directed to refund the entire amounts of Rs.2,97,600/- with interest at 12% p.a. from the respective date of payments, till the date of realization and in addition to pay compensation of Rs.1,00,000/- with litigation cost of Rs.2,000/- to the complainant. In complaint Nos.2696/09, 2697/09, 2698/09, 2699/09 and 2700/09 OP is directed to refund the entire amounts paid by each of the complainants as shown in the chart at para 2 of the order with interest at 12% p.a. from the respective date of payments, till the date of realization with litigation cost of Rs.2,000/- to each of the complainants within four weeks from the date of this order. Send the copy of this order to both the parties free of cost. This original order shall be kept in the file of the complaint No.2695/2009 and a copy of it shall be placed in other respective files. (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 29th day of June 2010.) MEMBER MEMBER PRESIDENT Snm:
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