BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.979/2013

DATED THIS THE 27^th JANUARY 2014

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.JANARDHANA, MEMBER

Complainant: -   

                                                Geeta Vishwanath,

                                                C/o. Purushotham.K.R

                                                Ananda, Door no.2,

                                                1^st floor, Gunasheela layout,

                                                19^th Cross, (Road Diagonally

                                                Opp. To Sobha Tulip apartments)

                                                24^th Main, Jaya Prakash (JP) Nagar,

                                                5^th Phase, Bangalore-78

V/s

Opposite party: -          

                                                Mr.Mahadev Gowda.R

                                                Managing Director, Chairman

                                                & CEO, Dee Estates and Properties

                                                Pvt. Ltd, 177, First main, 12^th “A”

                                                Cross, Second stage, West of Chord

Road, Mahalakshmipuram,

Bangalore-86

Karnataka 

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the Opposite Party, praying to pass an order, directing the OP to execute the sale deed of site of the same size in any other project of the OP after receiving the balance price amount and alternatively to pay refund Rs.15.00 lakhs as compensation and to pay Rs.1,84,000=00 as additional relief alongwith cost of litigation.

2. The brief facts of the complaint can be stated as under.

          The OP is the MD, Chairman and CEO of Dee Estates and Properties Pvt. Ltd engaged in the business of development and selling of sites. Based on an advertisement of Dee Estates and Properties Ltd in prestigious English daily i.e. Deccan Herald one day during 1996, the complainant came to know of a project called Dee Mandala located on the state highway between Dobbaspet-Doddaballapur near Nelamangala taluk of Bangalore District. This gated community project was being developed by the OP. Since the complainant wanted to cherish her longstanding dreams of owning a property in Bangalore, she and her husband approached the OP and met Mr.Jagadish Patil senior management person of OP and also met the concerned marketing personnel Dee estates and properties Pvt. Ltd and they also showed the copies of documents pertaining to the ownership of the property by OP and stated that all the documents are authentic and the title of the property is clear and they also offered the complainant a lucrative price as Ugadi-Baisakhi offer for purchasing 50 X 100 ft intermediate plot for a total price of Rs.1.00 lakh with a down payment of Rs.10,000=00 to be paid upfront before 20-3-1996 and also assured zero development costs for plots booked prior to 20-3-1996 and the balance Rs.90,000=00 was to be paid in equated monthly installment’s of Rs.1,500=00 per month for the next 60 months and by the time the property was guaranteed to be fully developed as per the memorandum of agreement. After a couple of day, they were taken on a visit to the project site and showed certain initial developments like ground work and they were also assured by the construction team that the project is going as per schedule and will be completed within the stipulated period. Thereafter they were asked to select the site and accordingly the complainant selected site no.423 which was available for sale at that point of time. Once, they agreed for the offer price, the complainant was asked to pay the down payment of Rs.10,000=00 which was paid on 9-3-2003 vide cheque no.120660 drawn on SBI, Vidyaranyapuram, Bangalore from the complainant’s husband account at SBI. This was the day when the complainant met R.Mahadev Gowda, Managing Director, Chairman and CEO of Dee Estates and Properties Pvt. Ltd who being the OP and he congratulated the complainant on deciding to invest in Dee Mandala. The complainant and her husband had decided to take the property jointly and they returned home very happy couple thinking that their longstanding dream of owning a property had come true and started dreaming of building a house and thereafter they were then subsequently asked to sign the sale agreement and memorandum of agreement which the complainant did it, on mutual signature of the sale agreement and memorandum of agreement. The complainant started to pay the stipulated EMI’s of Rs.1,500=00 for the next 19 months and the EMI’s were all paid through SBI, Vidyaranyapuram branch and Yeshawantapura branch, Bangalore.  During August 1997 the complainant entire family moved out of Bangalore to Mumbai since husband of complainant was transferred by his company. However, the complainant continued to pay the EMI’s and were still in constant touch with the OP and enquiring about the progress of the project. In the meantime, the complainant’s husband started getting doubts on the entire dealing. On 11-8-1998 husband of complainant wrote a letter asking for the development status of the project and again requested for a copy of BMRDA approval or NOC.  In response to his letter the OP demanded for the balance amount and he kept on insisting to know more on the progress and the status of the project. Not convinced with the vague replies provided to the complainant about the progress, approvals and the status of the project. The complainant herself has made clear to the OP over telephone about intentions to stop the EMI’s and then literally stopped paying the EMI’s from March 1998 onwards. Sometime during 1999 after great pressurization and insistence personally during visit of the complainant to office of the OP which was then shifted to a different location at no.177, first main, 12^th A cross, 2^nd stage, West of Chord Road, Mahalakshmipuram, Bangalore reluctantly they provided a copy of the Dossier of Dee Mandala project. On going through the copy of the Dossier, the complainant had a feeling that there was something wrong with the authenticity of the ownership of the property and by that time the complainant was more than convinced that she had been funding the project without a positive approach by Dee Estates and properties Pvt. Ltd. This was evident when the complainant has made a visit to their site in 2003, till such time the complainant had already paid them an amount of Rs.38,500=00. Looking at their few letters on the progress the complainant realized that there seemed to be a setback at Dee Estates on the development of the project. There was literally no effort from their end to satisfy the consumer, as per the schedules. The OP and his team only wrote to the complainant about the delays in the project giving vague excuses. The Complainant wrote one final letter on 5-2-2013 and it was by the advocate for the OP in the reply, the complainant is being branded as a defaulter of payment, this is totally false, so the complainant has come up with the present complaint.

          3. After service of notice, the OP did not appear before the forum and he was called out absent and he has been placed exparte, and posted the case for filing the affidavit of the complainant.

          4. So as to prove the case, the complainant has filed his affidavit by way of evidence, and produced 36 copies of documents with list dated 22-3-2013. We have heard the arguments of the complainant and we have gone through the oral and documentary evidence of the complainant meticulously. 

5. One Geeta Vishwanath, who being the complainant has stated in her affidavit evidence that, Mr.Mahadev Gowda is the MD, Chairman and CEO of Dee Estates and Properties Pvt. Ltd who engaged in the business of development and selling of sites. Based on an advertisement of Dee Estates and Properties Ltd in prestigious English daily remember it to be Deccan Herald one day during 1996, she came to know of a project called Dee Mandala located on the state highway between Dobbaspet-Doddaballapur near Nelamangala taluk of Bangalore District. This gated community project was being developed by the OP which offered sites to prospective buyers. Since she wanted to cherish her longstanding dreams of owning a property in Bangalore, her husband and herself approached their office at 67, East Park Road, 18^th Cross, Malleshwaram, Bangalore to obtain more details and she met Mr.Jagadish Patil senior management person and he was prompted by him to meet the concerned marketing personnel of OP and provided her a detailed brochure and also showed the copies of documents pertaining to the ownership of the property of Mr.Mahadev Gowda and Dee Estates and properties Pvt. Ltd and stated that all the documents are authentic and the title of the property is clear and that the property can be legally transferred to her on completion of the project, however they did not provide her with copies of any documents even after insisting on the same. They also mentioned that all approvals are underway and shall be obtained on schedule and informed to them, but they refused to provide any copies of the same and they also offered her a lucrative price as Ugadi-Baisakhi offer for purchasing 50 X 100 ft intermediate plot for a total price of Rs.1.00 lakh with a down payment of Rs.10,000=00 to be paid before 20-3-1996 to avail the Ugadi-Baisakhi offer and also assured zero development costs for plots booked prior to 20-3-1996 and the balance Rs.90,000=00 was to be paid in equated monthly installment’s of Rs.1,500=00 per month for the next 60 months and by the time the property was guaranteed to be fully developed as per the memorandum of agreement, and after a couple of day, they were taken on a visit to the project site and showed certain initial developments like ground work and they were also assured by the construction team that the project is going as per schedule and will be completed within the stipulated time, and they were to a certain extent convinced about the development and assurance from them and thereafter they were asked to select the site and they selected site no.423 which was available for sale at that point of time, and they were allotted the site no.423 in Dee Mandala project at Jakkasandra Village. Once they agreed for the offer price, she was asked to pay the down payment of Rs.10,000=00 which was paid by them on 9-3-2003 vide cheque no.120660 drawn on SBI, Vidyaranyapuram, Bangalore from her husband’s account at SBI official receipt. On that day they met R.Mahadev Gowda, Managing Director, Chairman and CEO of Dee Estates and Properties Pvt. Ltd and he congratulated them for having investment in Dee Mandala, and he also assured them that he will personally keep them posted regularly on the developments of the project as per schedules and herself and her husband had decided to take the property jointly. On realization of the down payment a sale agreement and memorandum of agreement were executed, she started to pay EMI’s of Rs.1,500=00 for the next 19 months through SBI, Vidyaranyapuram branch, Bangalore and Bank of India, Yeshawantapura branch, Bangalore from her husband SB account vide cheques.  During August 1997 her entire family moved out of Bangalore to Mumbai as her husband was transferred by his company. However, she continued to pay the EMI’s and in the meantime, her husband started getting doubts on the entire dealing as the OP has started giving vague and unconvincing replies. On 11-8-1998 her husband wrote a letter to know the status of the project and also requested to provide him BMRDA approval or NOC, but they did not send it she made herself clear to the OP over telephone about her intention to stop the EMI’s from March 1998 onwards. After great pressurization and insistence personally during her visit to their office, reluctantly they provided her copy of the Dossier of Dee Mandala project alongwith the GPA. Detailed Map/Drawing/Plan of the project with her site no.423 marked and on going through the Dossier copy, she had a feeling that there was something wrong with the authenticity of the ownership of the property as the property on paper belonged to somebody legally and the same was being developed by Mr.Mahadev Gowda based on power of attorney issued by the owner. The OP did not have the property in his name and planned to sell/transfer it to customer, when she made a visit to their site in 2003 there was literally no much development and till such time she had already paid them an amount of Rs.38,500=000 vide cheque /cash receipts. Looking at their few letters on the progress, she realized that there seemed to be a setback at Dee Estates on the development of the project, which was not being revealed to her by anybody. The OP started to write to her requesting for the balance installments and the OP and his team wrote to her about the delays in the project giving vague excuses. But she was surprised that it was replied by a letter by advocate of the OP  on 26-2-2013 that her account was closed and she is being branded as a defaulter of payment  and this disturbed her mentally, so she has come up with the present complaint, so the complaint be allowed and pass an order as prayed for.

6. The above said assertions of the complainant have remained uncontroverted. The OP has neither appeared nor denied the sworn testimony of the complainant. So under the circumstance, we have no reasons to disbelieve the sworn testimony of the complainant.

7. Let us have a cursory glance at the documents of complainant. The complainant has produced reply notice of the OP dated 26-2-2013 addressed to the complainant denying the contents of notice of complainant. The second document of the list of complainant is letter of complainant dated 5-2-2013 addressed to the OP stating that she requested to supply BMRDA approval and clearance/NOC but those documents not furnished and requested her to pay the balance amount and she stopped paying the installment of the agreed amount and utterly disappointed and she is ready to pay agreed amount of Rs.61,500=00 as per the agreement and she has paid Rs.38,500=00 and she has paid her hard earned money with an intention of fulfilling her long standing dream of owning a home at his project and she hopes that he will give reply suitable and do the needful. One sketch of Dee Mandala is produced wherein the site no.423 of the complainant is marked with yellow colour. The fourth document of complainant is the copy of letter of OP addressed to the complainant dated 4-5-1999 stating total plot value is Rs.1.00 lakh and amount paid till the date is Rs.38,500=00, the balance is of Rs.61,500=00, kindly arrange to clear the overdue balance at the earliest. The fifth document of complainant is the copy of ledger account of complainant issued by the OP stating that the complainant has paid Rs.10,000=00 on 14-3-1996 and in all the complainant has paid Rs.38,500=00 to the OP out of total value of Rs.1.00 lakh and the balance payable is Rs.61,500=00. The sixth document of the complainant is the copy of letter of OP dated 12-8-1998 addressed to the complainant praying to make payment of the backlog immediately. The seventh document of the complainant is letter of complainant dated 11-8-1998 addressed to the OP requesting to inform about the prospectus of the project as they received the news papers, as they read news papers that the proposed international airport near their site is not likely to takeoff. The eight document of the complainant is letter of OP to its customers dated 7-8-1998 stating that the foundation work is over and the super structure work is about to begin, and they are targeting for early completion so as to enable their customers to enjoy at Dee Mandala and called upon the customers to make payment of balance amount. The ninth document of the complainant is letter of OP for having sent statement to the complainant. The complainant has produced three original receipts issued by authorized signatory of OP in the name complainant for having received Rs.1,500=00, 1,500=00 and Rs.3,000=00 through cheques. The complainant has produced one letter of OP dated 30-1-1997 addressed to the customers in general stating that, they had stopped construction of swimming pool, restaurant and they are negotiating with a Canadian Construction company for installation of low cost ready to build houses at their site. Document no.14 is receipt issued by the OP in the name of complainant for having received Rs.1,500=00 by cheque on 12-10-1997 in respect of plot no.423. Document no.15 is letter of OP addressed to the complainant dated 25-9-1997 stating that the development has taken up again at Jakkasandra, re-marking of the road and plot are under progress and saplings have been planted and they would be speeding up the development work. The complainant has produced five original receipts issued by the OP in her name for having received Rs.3,000=00, Rs.4,500=00, Rs.1,500=00, Rs.1,500=00 and Rs.1,500=00 through cheques. The twenty first document of complainant is letter of OP dated 4-4-1997 welcoming the complainant for having invested on their project. 22^nd document of complainant is original receipt issued in the name of complainant by OP for having received Rs.1,500=00 as installment through cheque of Bank of India. Document no.23 is letter of OP to its customers dated 31-1-1997 stating that, the restaurant is getting ready and the planting is completed and bore-wells have been sunk and a children’s play ground is ready and from now the customers will be receiving regular updates about the new developments at Dee Mandala. The complainant has produced eight original receipts issued by the OP for having received Rs.1,500=00 each by installments in respect of plot no.423. Document no.32 of the complainant is memorandum of agreement dated 16-5-1996 executed by the OP in the names of complainant and her husband in respect of plot no.423 and in that memorandum of agreement it is stated that, agreed development charges under memorandum of agreement is Rs.65,000=00 and out of it, complainant has paid Rs.5,000=00 as advance still she has to pay Rs.60,000=00 and the same shall be paid in 60 EMI’s of Rs.1,000=00 before 10^th of February every month. Document no.33 of the complainant is sale agreement executed by OP and complainant and her husband dated 16-3-1996 in respect of plot no.423 for a sum of Rs.35,000=00 and out of it the complainant has paid Rs.5,000=00 and the balance of Rs.30,000=00 shall be paid in 60 monthly installments of Rs.500=00 before 10^th of every month. Document no.34 of the complainant is report issued by the OP in the name of complainant and her husband for having paid Rs.10,000=00 on 9-3-1996. Document no.35 of the complainant is the copy of statement of Dee Mandala project. Document no.36 of the complainant is colourful brochure of Dee Mandala with offer details to general public.

8. On making careful scrutiny of the oral and documentary evidence of the complainant as mentioned supra, it is made unambiguously clear that, the oral testimony of complainant in relation to giving no positive response by the OP showing achievement of progress in the development of Dee Mandala project after receipt of Rs.38,500=00 from her out of total price of Rs.1.00 lakh in respect of plot no.423 stands corroborated by correspondences made between the complainant and OP, the original receipts issued by the OP, agreement of sale, memorandum of agreement, sketch and brochure of the OP. The act of OP in not executing the sale deed in the name of complainant by completing the project as promised, amounts to negligence and deficiency of service on the part of the OP. The oral and documentary evidence of complainant placed before the forum are sufficient enough to hold that the OP has received Rs.38,500=00 from the complainant by way of advance by way of installments out of total price of Rs.1.00 lakh as promised and OP went on postponing the development of the project taking enough time and the act of OP made the complainant to stop EMIs as promised. The OP who agreed to execute the sale deed in the name of complainant well within a time as per sale agreement and memorandum of agreement after receiving the balance amount has failed to complete the project for the reasons best known to him. The negligent act of OP has made the complainant to knock the door of the forum by filing the present complaint seeking relief under CP Act. The complainant who comes to forum seeking relief has proved with clear cogent and consistent material evidence that, the OP is negligent and there is deficiency of service on the part of the OP in not executing regular sale deed in her favour in respect of plot no.423 as per terms and conditions of the said sale agreement. In view of negligence and deficiency of service on the part of the OP, the complainant is entitled to seek the OP to execute the sale deed of the plot no.423 in her name after receiving the balance amount from her. So the OP is directed to execute the sale deed in the name of complainant in respect of plot no.423 in Dee Mandala at Jakkasandra village within 60 days from the date of receipt of this order after receiving the balance amount from the complainant, failing which the OP shall pay an amount of Rs.38,500=00 to the complainant alongwith 18% interest per annum on the said amount from the date of respective payments to till the date of realization, and the OP is further directed to pay Rs.8,000=00 and Rs.2,000=00 to the complainant towards compensation and cost of litigation respectively, and accordingly, we hold that the complaint of the complainant is partly sustainable. In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint of the complainant is partly allowed. The OP is directed to execute the registered sale deed in the name of complainant in respect of plot no.423 in Dee Mandala situated at Jakkasandra, after receiving the balance amount from her as per agreement within 60 days from the receipt of the order, failing which, the OP shall pay an amount of Rs.38,500=00 to the complainant alongwith 18% interest per annum on the said amount from the dates of receipt of the payment to till the date of realization.

The OP is further directed to pay Rs.8,000=00 and Rs.2,000=00 to the complainant towards compensation and cost of litigation respectively.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 27^th January 2014).

MEMBER                                  PRESIDENT