COMPLAINT FILED ON:19.08.2010
DISPOSED ON:07.07.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
7th DAY OF JULY-2011
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT Nos.1945, 1946, 1947,
1948, 1949, 1950/2010
Complaintno.1945/2010 Complainant | Ms. Soumya Bijjal, D/o Shri.A.S.Bijjal, Age about 29 years, Represented by Power of Attorney holder Mr.Rajiv Bijjal, Residing at A-205, Aishwarya Agate Apartments, 13th Cross, Sarakki, 1st Phase, JP Nagar, Bangalore – 560 078. |
Complaintno.1946/2010 Complainant | 1) Mr.Rajiv Bijjal S/o Dr.Tippanna S.Bijjal, Age about 45 years. 2) Mrs. Madhavi Bijjal W/o Rajiv Bijjal, Age about 39 years, Both are residing at A-205, Aishwarya Agate Apartments, 13th Cross, Sarakki, 1st Phase, JP Nagar, Bangalore – 560 078. |
Complaintno.1947/2010 Complainant | 1) Mr.M.R.Seshadri, S/o Dr.Ramachandra Rao, Age about 73 years. 2) Mrs. Indira Seshadri, W/o M.R. Seshadri, Age about 64 years, Both are residing at No.431, ‘Aditya’ 8th Main, 9th Cross, Vijaya Bank Colony, Off Bannerghatta Road, BANGALORE – 560 076. |
Complaintno.1948/2010 Complainant | 1) Mr. Rajiv Bijjal, S/o Dr. Tippanna S.Bijjal, Age about 45 years. 2) Mrs. Madhavi Bijjal, W/o Rajiv Bijjal, Age about 39 years, Both are residing at A-205, Aishwarya Agate Apartments, 13th Cross, Sarakki, 1st Phase, JP Nagar, BANGALORE -560 078. |
Complaintno.1949/2010 Complainant | Mrs. INDIRA SESHADRI, W/o Shri M.R.Seshadri, Aged about 64 years, Represented by Power of Attorney holder Mr.M.R.SESHADRI, Residing at No.431, ‘Aditya’ 8th Main, 9th Cross, Vijaya Bank Colony, Off Bannerghatta Road, BANGALORE – 560 076. |
Complaintno.1950/2010 Complainant | Mrs. SETTA SATISH BELGAVI, W/o Satish U.Belgavi, Aged about 35 years, Represented by Power of Attorney holder Mr. SATISH U.BELGAVI, Residing at ‘Yashasvi Niwas’, No.10 & 11, R.S.No.182/1A, Basava Nagar Extension, GOKAK – 591307. ADVOCATE: Shri. Basavaraj M.Mekki. Vs. |
OPPOSITE PARTY/S | 1) Mr.V.BHASKAR REDDY, S/o V.Balavenkata Reddy, Partner, M/s ROYAL COUNTY. 2) Mr.T.RIPUNJAYA REDDY, S/o T.V.Raghava Reddy, Partner, M/s ROYAL COUNTY. Having their office at: M/s Aishwarya Projects, 717, 2nd Floor, Poorna Shashi Complex, Modi Hospital Road, 2nd Stage, West of Chord Road, Basaweshwar Nagar, BANGALORE – 560086. ALSO AT: M/s Samyuktha Projects, No.21/83, 2nd Floor, Ram Chandra Arcade, Above Balaji Medicals, South End Road, Basavanagudi, BANGALORE -560004. V. Bhaskar Reddy, No. 199, 5th Main, Bikasipura, ISRO Layout Extension, BANGALORE – 560061. T.R. Reddy, No.345, 16th Cross, 18th Main, 5th Phase, J.P.Nagar, BANGALORE – 560078. Advocate: Sri. Dhananjaya. C.P., |
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COMMON ORDER
SRI. B.S.REDDY, PRESIDENT
These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants seeking direction against Opposite Parties (herein after called as O.Ps) to refund the deposited amounts towards sital value with interest at 18% p.a. and for damages to an extent of Rs.1,00,000/- each with costs of the proceedings on the allegations of deficiency in service on the part of the OPs.
As the OPs in all these complaints is common, the questions involved, relief claimed being the same, in order to avoid the repetition of facts and multiplicity of reasonings, all these complaints are disposed of by this common order.
2. The case of the complainants to be stated in brief is that:
During the year 2006-07, the OPs advertised for sale of residential plots in layout at suburbs of Mysore. The complainants made enquiries with these OPs regarding advertisements. OPs approached the complainants for sale of sites at the proposed layout “ROYAL COUNTY’. The OPs informed that the proposed layout is advanced stage of obtaining necessary residential layout plan approvals from Mysore Urban Development Authority (‘MUDA’) which essentially involves obtaining clearances from the District Revenue Authorities for permitting the use of the land for non-agricultural purpose, pollution control Board, Electricity Board, Water supply and Sewerage Board. OPs promised to develop the layout with all essential amenities including Club house, Swimming Pool and parks before executing the sale deed. These complainants due to inducement of the OPs, agreed to purchase plots in the proposed layout and paid the advance sale consideration, OPs executed the sale agreements agreeing to receive the balance after obtaining the approval from MUDA and furnishing the necessary documents relating to title deeds, clearance of title NOC from a pollution control board conversion order, layout approval by MUDA and approved layout plan, release order of the plot and khata of the site and tax-paid receipt. OPs agreed to form layout out within 12 months and provide all the facilities. Further it was agreed by OPs that if they fail to obtain necessary approvals from MUDA within 6 months from the date of agreement, to refund the advance money with a premium of Rs.40 per square feet over and above the agreed sales price. OPs failed to obtain the MUDA approval as per the agreement and they have not furnished the original documents for verification, the complainants got issued legal notice and OPs issued reply to the said notice admitting the receipt of advance sale consideration and also execution of the agreement deeds. The complainants visited the proposed location of the layout, they did not find any development activity of “ROYAL COUNTY’ but instead, the major portion of the proposed layout is being developed into residential plots by another developer. The complainants insisted OPs to refund the advance amount along with premium and interest. OPs though promised to refund the amount, but till today they have not made any payment to the complainants. The complainants felt deficiency in service on the part of the OPs and filed these complaints. The complainants are claiming refund of the advance money with premium and interest. The details of the amounts paid, the site numbers, date of payment and the total amount claimed are mentioned in the chart below for convenience sake:
Sl. No. | Complaint Nos. | Flat No. and Project Name | Total Advance amount paid with Date | Total Amount Claimed |
1 | 1945/2010 | 346 | 1,44,000/- | 2,90,378/- |
2 | 1946/2010 | 344 and 345 | 2,00,000/- 09.01.2007 88,000/- 17/01/2007 Rs.2,88,000/- | 5,80,775/- |
3 | 1947/2010 | 347 and 348 | 2,88,000 10/01/2007 and 12/01/2007 | 5,80,566/- |
4 | 1948/2010 | 220 | 75,000/- 31/01/2007 Rs.1,75,000 31/01/2007 2,50,000 | 4,91,525/- |
5 | 1949/2010 | 173 | 2,00,000/- 16/11/2006 23/11/2006 29/11/2006 | Rs.3,33,742/- |
6 | 1950/2010 | 349 | Rs.1,44,000 16/01/2007 | 2,90,283/- |
The complainants also claimed damages of Rs.1,00,000/- each for mental agony, tortures, harassment and humiliation. Hence, these complaints.
3. On appearance, OPs filed the versions with similar contentions in all the complaints. It is admitted that these complainants have entered into an agreement of sale and have paid the advance sale consideration as stated in the complaints. It is submitted that OPs had immediately informed the complainants that the previous Government in order to approve the Master Plan had banned land conversion and layout development from July 2006 because of which the OPs were not able to get any conversion or any plan from the concerned authority. The act of the OPs is not intentional one but a bonafide reason and OPs have not committed any deficiency of service. The completion of the project is very much on and the OPs already obtained necessary conversion and layout plan from the competent authorities. OPs already informed the complainants about the completion of the project and requested them to pay the balance sale consideration and get the sale process completed. As per Clause-7 of the terms and conditions in the Application for allotment of plot, OPs clearly explained that they are not responsible for any delay or inconvenience or loss caused due to the act of the Government Agencies or Nature or Unforeseen circumstances beyond their control. As per condition NO.6 of the terms and conditions in the Application for Allotment of Plot, OPs has clearly explained that the amount once paid will not be refundable. The complaints are barred by limitation. The complainants are not ‘consumer’ as defined Under Section-2(1)(d) of the Consumer Protection Act 1986. There is no relationship between the complainants and OPs regarding the alleged transactions and the complainants have not availed any services of the OPs, hence the complaints are not maintainable. The intention of the complainants is to extort as much money as possible from the OPs through the police, hence the complaints are to be dismissed.
4. Affidavit evidence filed by the complainants and their power of attorney, OP2 filed affidavit evidence in support of the defense version and produced documents.
5. Arguments on both sides heard. Points for consideration are:
Point No.1:- Whether the complainants proved the
deficiency in service on the part of
the OPs?
Point No.2:- Whether the complainants are entitled
for the reliefs now claimed?
Point No.3:- To what Order?
6. We record out 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
At the outset it is not in dispute that these complainants after going through the advertisements and propaganda issued by OPs with regard to the residential plots to be made in the proposed layout ‘Royal County’ at suburbs of Mysore booked plots by depositing the initial advance amounts as shown in the chart above and OPs executed agreement deeds incorporating the terms and conditions. In the reply notices issued by OPs and the versions filed the payment of advance amounts from these complainants is admitted. As per terms of the agreement deeds, OPs agreed to provide the facilities and develop the layout within 12 months from the date of the agreement as shown at Cluase-1 and obtain the necessary approvals and sanctions from ‘MUDA’ within 6 months from the date of the agreement as per Clause-2 of the agreement and OPs also agreed to refund the advance paid with a premium of Rs.40 per squire feet and Rs.50/- per squire feet over and above the agreed sale price in case of their failure to obtain the necessary approvals within a period of 6 months. These complainants were required to pay the balance amounts towards costs of the sites within a month from the date of receipt of intimation from OPs informing approvals from ‘MUDA’ and OPs agreed to furnish the documents to the complainants for verification of original documents like the documents relating to land acquired by the OPs, the title clearance documents, NOC from Pollution Control Board, Order from District Commissioner permitting the use of the land for non-agricultural purpose, Layout Approval Order by ‘MUDA’ and Approved Layout plan, Release order of the Plot by ‘MUDA’, Khata of each site and Tax-paid receipt.
7. The location and area of the proposed layout called as ‘ROYAL COUNTY’ was at Huyilala Village, Yelavala Hobli, Mysore Taluk, Mysore district. OPs have not produced any material to show that any conversion has been obtained in respect of lands situated in that village and title has been acquired by OPs for formation of the layout. Further, OPs have not produced any material like Mysore Urban Development Authority (‘MUDA’) approval of the layout and any other documents as agreed to be produced as per the terms of the agreement. In view of the same, these complainants demanded for refund of he amount paid but OPs have not complied the said demand. The act of OPs in not forming the proposed layout or in not refunding the advance amount received amounts to deficiency in service on their part.
8. There is no merit in the contention that the complainants are not consumers as defined Under Section-2(1)(d) of the Consumer Protection Act, for the reason that the cost of site proposed and part of the same being collected from each of these complainants includes the service charges of the service to be rendered by the OPs in forming the layout. Therefore, the complainants have availed the services of OPs for forming the proposed layout for consideration. Further, when once OPs accepted the initial advance amounts from these complainant towards allotment and sale of the sites, till OPs allots and execute the sale deed or repay the advance amount, the cause of action accrues to the complainants continuously, as such the complaints filed are not barred by limitation.
9. OPs produced the approved layout plan copy, conversion order copy and copies of the sale deeds executed in respect of certain sites formed in the “ROYAL COUNTY’ at Bommenahally Village, Yelavala Hobli, Mysore Taluk. The said layout is stated to have been approved by the village Panchayath. The lands where the said layout is formed is in Sy.No.29,30, 32, 33, 34, 41 and 42 of Bommenahally Village. It appears that these OPs shifted the location of the proposed “ROYAL COUNTY’ Project from Hyuilala Village area to Bommenahally Village and got the approval of the Village Panchayath for the layout plan. As per the terms of the agreement, OPs were required to obtain clearance from ‘MUDA’ including the layout plan approval. When the location of the proposed layout has been changed from one area to another area the complainants cannot be insisted to get the sites registered in the said layout by paying the balance sale consideration. When OPs failed to form the layout in the area where it was proposed earlier, it is not open to contend that the amounts received as initial advance is nonrefundable.
10. In complaint No.1945/2010 to 1947/2010 and 1950/2010 as per Clause-2 of the agreement OPs agreed to refund the amount with a premium of Rs.40 per squire feet over and above the agreed sale price. The agreed sale price is Rs.350 per squire feet. In complaint No.1948 and 1949/2010 as per Clause-2 of the agreement OPs agreed to refund the advance amount received with premium of Rs.50 per squire feet over and above the agreed sale price. The agreed sale price is Rs.500 per squire feet.
11.When the complainants have agreed to receive the advance amount with a fixed premium, they are not entitled to claim interest on the advance amount and the premium amount at 18% p.a. There is no agreement between the parties to pay any interest while refunding the amount paid as advance sale consideration and premium amounts. Under these circumstances, we are of the view that the complainants are entitled for refund of the amount with agreed premium amounts.
12. In complaint Nos.1945 and 1950/2010 each of the complainants agreed to purchase site measuring 30 X 40 feet i.e., 1200 squire feet. The premium per squire feet at the rate of 40 works out at Rs.48,000/- as such each of them are entitled for premium amount of Rs.48,000/- along with advance amount paid. In complaint Nos.1946 and 1947/2010 the complainants in each case have paid the advance for two sites, each measuring 30 X 40 feet as such each complainants are entitled for premium amount of Rs.96,000/- along with advance amount paid. In Complaint Nos.1948 and 1949/2010 each complainants agreed to purchase site measuring 30 X 50 feet i.e.,1500 squire feet and the premium amount per squire feet at the rate of Rs.50/- per squire feet works out at Rs.75,000/- as such each of them are entitled for premium amount of Rs.75,000/-. Accordingly, we proceed to pass the following:
O R D E R
The complaints filed by the complainants are allowed in part.
1. In complaint No.1945/2010 OPs are directed to refund an amount of Rs.1,44,000/- and pay premium amount of Rs.48,000/- total Rs.1,92,000/-with interest at 12% p.a. from the date of complaint, till the date of realization to the complainant.
2. In complaint No.1946/2010 OPs are directed to refund an amount of Rs.2,88,000/- and pay premium amount of Rs.96,000/- total Rs.3,84,000/- with interest at 12% p.a. from the date of complaint, till the date of realization to the complainants.
3. In complaint No.1947/2010 OPs are directed to refund an amount of Rs.2,88,000/- and pay premium amount of Rs.96,000/-total Rs.3,84,000/- with interest at 12% p.a. from the date of complaint, till the date of realization to the complainants.
4. In complaint No.1948/2010 OPs are directed to refund an amount of Rs.2,50,000/- and pay premium amount of Rs.75,000/- total Rs.3,25,000/- with interest at 12% p.a. from the date of complaint, till the date of realization to the complainants.
5. In complaint No.1949/2010 OPs are directed to refund an amount of Rs.2,00,000/- and pay premium amount of Rs.75,000/-total Rs.2,75,000/- with interest at 12% p.a. from the date of complaint, till the date of realization to the complainant.
6. In complaint No.1950/2010 OPs are directed to refund an amount of Rs.1,44,000/- and pay premium amount of Rs.48,000/- total Rs.1,92,000/- with interest at 12% p.a. from the date of complaint, till the date of realization to the complainant.
OPs to pay litigation cost of Rs.2,000/- in each case.
OPs to comply the order within four weeks from the date of this order.
This original order shall be kept in the file of the complaint No.1945/2010 and a copy of it shall be placed in other respective files.
Send the copy of this order to both the parties free of cost.
(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 7th day of July 2011.)
MEMBER MEMBER PRESIDENT
CS.,
