BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 03^rd DAY OF NOVEMBER 2016

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 Parties (herein after referred as OPs) for refund of Rs.4,21,000/- with interest 18% p.a with cost of litigation alleging deficiency of service.

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

That the complainant booked plot No.429 in “Orchid Paradise” layout measuring 4000 sq. ft at the rate of Rs.350/- per square feet + 3267 sq. ft farm land in Sira Madugiri road of farm land by paying Rs.1,001/- on 08.08.2010.  That plot no.429 is not approved by the District Town and Country Planning Authority (DTCP).  Now OP is stating that the Government has changed, therefore they cannot give him the farm land as well.  That the DTCP approved other plots but not plot No.429.  That at the time of booking it was agreed that the purchaser will pay 30% of the total value of the plot which comes to Rs.4,20,000/- and the balance amount of Rs.9,80,000/- shall have to be paid with Bank loan which OP promised to arrange.  OPs have failed in getting DTCP approval of plot No.429 and are not ready to give farm land measuring 3267 sq. ft and also have failed to arrange Bank loan.  That the complainant has paid the above said sum of Rs.4,20,000/- by way of cheque drawn on HDFC Bank.  That as per the Article 16 of agreement of sale OP is liable to refund the advance amount together with interest as per existing Bank rate in event the land is not approved by DTCP.  That OP till now not obtained necessary approval from the DTCP.  Therefore they shall be directed to refund the advance amount of Rs.4,21,000/- together with interest @ 18% p.a and other expenses together with litigation cost. 

3. In pursuance of the notice issued, OPs entered their appearance and filed their version contending in brief as under:

That the entire residential project “Orchid Paradise” is developed in Chikkaballapur District and the same has been approved by jurisdictional Town Planning Authority.  That the plot no.429 is also included in the plan approved by DTCP.  That the allegations of complainant that plot No.429 allotted to him is not approved by DTCP is false and baseless.  That it is true that complainant has paid a sum of Rs.4,20,000/- as advance towards plot No.429.  That the allegations that OP is not ready to give 3267 sq. ft of farm land after completion of the sale proceeds is false and baseless.  That it is true that as per clause 16 of the agreement if OP fails to get approval from the DTCP the initial sale proceeds shall be refunded with interest as per the existing rate of interest.  That at the time of booking the complainant submitted that he is agriculturist therefore he was promised farm land measuring 3267 sq. ft in Sira Madugiri road as a gift only upon completion of the sale transaction but later complainant submitted that he is not an agriculturist, therefore as per the existing laws he is not entitled for farm land.  That as per clause-17 of the agreement of sale if a purchaser fails to adhere to the time limit for the payment of balance sale consideration immediately after approval of DTCP, OP has power to cancel the agreement without notice for the breach of contract and thereafter OP would be free to deal with the schedule property in any manner he likes.  That the complainant did not come forward to get register the sale deed in respect of the said plot by paying balance consideration amount.  Many of the agreement holders have obtained registered sale deed by paying balance consideration amount.  That the complainant having failed to adhere to the terms and conditions of the agreement of sale is not entitled for any of the reliefs as claimed in the complaint.  That there is no deficiency of service on the part of OP.  Therefore, OPs pray for dismissal of the complaint with exemplary cost.

4. The points that arise for our determination in this case are as under:

        5. Both the parties have tendered their evidence by way of affidavit and produced documents in support of the respective contentions.  Written arguments have also been filed.  We have also heard the oral arguments.

6. Our answer to the above issues are as under:

REASONS

7.  Complainant booked a plot bearing No.429 in “Orchid Paradise” a layout being developed by OP at Malemanchanahalli Village, Sidlaghatta Taluk, Chikkaballapur District.  The said plot was agreed to be sold to the complainant at the rate of Rs.350/- per sq. ft and the total measurement of the site is 4000 sq. ft.  It is further agreed by the OP that on completion of the sale transactions of the above said plot, the complainant is entitled to 3267 sq. ft of farm land in Sira Madugiri road by paying a sum of Rs.1,001/-.  Admittedly, the complainant has paid a sum of Rs.1,40,000/- by cheque dated 24.08.2010, Rs.1,40,000/- by way of cheque dated 24.09.2010 and Rs.1,40,000/- by way of cheque dated 24.10.2010, all drawn on HDFC Bank.  OP has issued receipt for having received the above said amount of Rs.4,20,000/-.  The complainant has also paid a sum of Rs.1,000/- on 08.08.2010 by way of cash towards farm land measuring 3267 sq. ft situated in Sira Madugiri road for which OP has issued a receipt.  Dimension of plot No.429 has been clearly mentioned in the receipts issued by the OP.  After having received the above said sum of Rs.4,21,000/-, the OP has executed an agreement of sale on 23.08.2010 in favour of complainant.  The copy of which is produced by the complainant.  The plot number, measurement of the plot, total area and the boundaries have been mentioned in the agreement of sale executed by OP.  OP in their version admitted the execution of said agreement of sale in favour of complainant after having received Rs.4,21,000/-.

8. The complainant has produced the brochure issued by the OPs towards promotion of sale of plots in the said residential layout “Orchid Paradise’.  The brochure discloses that the OPs have promised Bank loan with 0% processing fee + 2 years free maintenance to the purchasers of the plot in the said layout.  Further in the said brochure OP has declared that those who booked the plot at the spot will be given a farm land measuring 3267 sq. ft together with club membership.  OPs did not deny the issuance of brochure and the promise made by them in the said brochure.  Admittedly OPs have never arranged for Bank loan to the complainant for payment of the balance amount as promised in the brochure.  Moreover OPs never intimated/informed the complainant regarding obtaining approval from the DTCP and their readiness to execute the sale deed in terms of the agreement of sale.  For the first time, only after receipt of legal notice from the complainant, OPs have informed the complainant that the necessary approval have been obtained from DTCP and have called upon him to come and get the sale deed registered by paying balance amount.  However as promised in the brochure, OPs did not make arrangement for Bank loan for payment of remaining consideration amount.  OPs also failed to assure two years free maintenance of the plots as promised in the brochure.

9. It is pertinent to note that the plot No.429 at “Orchid Paradise” agreed to be sold to the complainant measures 50x80 (4000) sq. ft.  However in the order of conversion produced by OP there is no any site in the said layout measuring 50x80 (4000) sq. ft.  In the brochure it has been declared by the OPs that 725 sites of different dimensions are being formed in the said layout in a total area of 51 acres 20 guntats of land.  However the copies of conversion orders produced by the OPs disclosed that the approval by the Government is in respect of 19 acres 10.5 guntas only and there are only 253 plots of different measurement in the said layout.  Infact none of the sites in the said approved layout measures 50x80 sq. ft.  Thus it is apparent that the OPs have failed to form a layout as promised by them in their brochure and also have failed to develop any plot measuring 50x80 sq. ft.  The said act of OPs in failing to form 725 plots of different dimensions including 50x80 sq. feet sites amounts to unfair trade practice and also deficiency of service.  Moreover as promised in the brochure OPs have also not arranged Bank loan for payment of balance consideration amount as promised in the brochure.  This also amounts to unfair trade practice as well as deficiency of service on the part of OPs.  Without there being any site measuring 50x80 sq. ft OPs in their reply notice have called upon the complainant to come and get the sale deed registered in his favour by paying balance consideration amount in terms of the agreement of sale.  When OPs have failed to develop any site of the dimension of 50x80 they are not at all justified in calling upon the complainant to pay the balance consideration amount for getting the sale deed in his favour.  The whole conduct of OPs, as stated above, is highly questionable and amounts to unfair trade practice.

10. As rightly pointed out by the complainant even till today the OPs have failed to form site measuring 50x80 sq. ft in the said residential project as agreed by them in the agreement of sale.  Therefore, OPs are liable to refund the advance amount received from the complainant together with interest in terms of the agreement of sale.  Looking to the unfair conduct and unfair trade practice on the part of OPs, we feel it appropriate to direct them to pay interest @ 18% p.,a instead of Bank rate of interest as agreed under the agreement of sale.  The said conduct of OP, must have put the complainant to great hardship, inconvenience and mental agony.  Though the complainant has not asked for separate compensation but looking to the unfair trade practice as well as deficiency of service on their part, we feel it appropriate to award compensation of Rs.1,00,000/- to the complainant for hardship, inconvenience and mental agony undergone by him.

11. The order could not be passed within the stipulated time due to heavy pendency.   

12. 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.  OPs are directed to refund a sum of Rs.4,21,000/- (Rupees Four Lakhs Twenty One Thousand only) to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further OPs are directed to pay compensation of Rs.1,00,000/- to the complainant for the hardship, inconvenience and mental agony suffered by him together with litigation cost of Rs.10,000/-.

OPs shall comply the said order within four weeks from the date of communication.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 03^rd day of November 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 16.04.2016.

1. Sri.Mohamed Aneesulla.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties-1 & 2 dated 21.06.2016.

1. Shashikala Belagod.  

Document produced by the Opposite parties.1 & 2:

   MEMBER                         MEMBER                       PRESIDENT

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