Complaint filed on: 19-01-2010<br /> Disposed on: 31-07-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT <br /> CONSUMER DISPUTES REDRESSAL FORUM,<br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.121/2010<br /> DATED THIS THE 31st JULY 2010<br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> <br /> SRI.GANGANARASAIAH., MEMBER<br /> <br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> <br /> Complainant: - <br /> <br /> C.M.Serao, aged about 55 years,<br /> S/o. late Mr.M.Lawrence Serao,<br /> No.004, “Gaana Regent”,<br /> D.Block, Channasandra,<br /> Subramanyapura post,<br /> Uttarahalli, Bangalore-61<br /> <br /> <br /> V/s<br /> Opposite party: - <br /> <br /> M/s. ABM Build Tech Pvt Ltd, <br /> Builders, Developers and Promoters,<br /> No.657/58, “Laxmi Venkateshwara<br /> Arcade”, 2nd Floor, 11th Main,<br /> 33rd Cross, 4th Block,<br /> Jayanagar, Bangalore-11<br /> Chairman/Managing Director<br /> <br /> <br /> O R D E R<br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> Brief facts of the complaint filed by the complainant against the OP are that, the OP representative is a promoter of various layouts and selling sites issued advertisement proposing a residential layout called “LAKE VIEW” at Bidadi hobli. That he intended to purchase a site from OP on 2-3-2006 when the OP performed the Bhoomi Pooja for formation of layout, he applied for allotment of a site measuring 30 ft X 40 ft and agreed to pay the cost of site fixed as Rs.4,08,000/- and paid advance of Rs.1,00,000/- in two installments and balance Rs.3,08,000/- was payable at the time of registration of site. The OP started delaying in formation of layout had postponed on the ground that the government clearances are not given. That he was always and willing to pay balance sale consideration. But inspite of approaching the OP’s several times, the OP has not conveyed the site. Then he wrote letters on 17-1-2009 and 29-1-2009 besides sending legal notice dated 12-5-2009 calling upon the OP to allot him a site as agreed. But the OP sent untenable reply to the legal notice dated 21-5-2009 pleading as if clearances are not given for formation of layout. That he gave rejoinder to reply contending that the OP has caused deficiency of service in providing a site as promised and thus has prayed for a direction to the OP to provide an alternative site or in the alternative to direct the OP to refund advance money with interest at 24% per annum and also to award Rs.25,000/- towards mental agony. <br /> <br /> 2. OP to whom notice of this complaint is duly served, has remained absent and is set exparte. <br /> <br /> 3. In the course of enquiry into the complaint, the complainant has filed his affidavit evidence reproducing what he has stated in his complaint. The complainant alongwith complaint has produced receipt for having paid advance money, copies of correspondences and copies of legal notices with reply and rejoinder. We have heard the counsel for the complainant and perused the records. <br /> <br /> 4. The complainant has produced reply given by the OP through his advocate as reply to the legal notice dated 12-5-2009 issued by the complainant through his advocate. In this reply the OP has categorically admitted to had floated project as “LAKE VIEW” for formation of layout and receipt of advance amount of Rs.1,00,000/- from the complainant for allotting him a site measuring 30 ft X 40 ft. This admission of the OP made through his reply to the legal notice, affidavit evidence of the complainant and documents he has produced particularly money paid receipt prove that the complainant had paid Rs.1,00,000/- as advance to the OP, on the OP promising formation a layout called LAKE VIEW and to allot a site measuring 30 ft X 40 ft. The complainant has further stated that the OP thereafter did not make any progress in formation of layout and totally failed to provide a site has agreed by contending that the OP did not get clearances from the concerned authorities and the government. In the reply sent by the OP to the legal notice the OP himself has admitted that he could not get the approval from BMICAPA for formation of layout, on the ground that the lands proposed for formation of layout come within the agricultural zone and that can not be used for any other purpose. The OP has also further stated that the proposed land had been acquired by the government for formation of LAKE on 2-7-2007 and that the land owners without disclosing acquisition have cheated him by selling acquired land and thereby expressed his inability to provide site and as offered refund of advance money of the complainant. These facts have remained un-controverted and therefore prove that the OP did not succeeded in forming layout and could not allot a site as agreed.<br /> <br /> 5. The learned counsel appearing for the complainant without disputing this fact of OP has not formed the layout and there are no site at his disposal in the proposed layout submitted that the OP has formed several other layouts and he be directed to allot a site in any other layout formed by him. May be true that the OP has formed other layout but the complainant has not placed any materials to prove the availability of site in other layouts and he has a right to claim alternative site in other layouts we must bear in mind that other layouts formed by the OP or formed with a specific purpose of providing site to the members of that layout and without knowing the position ordering the allot a site in other layout would became un-executable. Besides this fact, the complainant it is evident that after paying advance of Rs.1,00,000/-through two installments and having had paid last installment on 11-3-2006 thereafter till 17-1-2009 till he addressed a letter to the OP neither paid the balance amount nor verified with OP as to what happened to the proposed layout. Thus, it is found that, the complainant also right from 2006 did not bother to enquire as to the step taken by OP and the stage of proposed layout. It is only after lapse of 3 years he has awaken to verify about the progress of layout. Further considering the circumstance under which the OP failed to form layout and also the amount paid by the complainant it is not feasible to direct the OP to allot a site in any one of the layouts, he has formed. Thus as prayed for by the complainant he is entitled for an alternative reliefs. Hence, the complainant is entitled for refund of money with interest and we pass the following order:<br /> O R D E R<br /> Complaint is allowed. OP is directed to refund Rs.1,00,000/- to the complainant with interest at 18% per annum from the date of receipt of payments till that amount is refunded. OP is directed to refund that amount with interest within 60 days from the date of receipt of this order. <br /> <br /> OP shall also pay cost of Rs.5000/- to the complainant. <br /> <br /> Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this the 31st July 2010.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT <br /> <br /> <br /> <br /> <br />