O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The brief facts of the complaint filed by the complainant against the Ops are that Ops No.1, 2 & 3 issued an advertisement in the news paper. That he was lured by the publication applied for allotment of a plot to Ops who had assured to form a residential layout as Aishvaryaa Enclave near international air port at Chickballapur. The Ops also assured him on acquiring land getting conversion done and other requirements of the department will be met and he was offered plot No.30 measuring 30’ X 40’ for total sale consideration of Rs.6,12,000/-. That an agreement of sale was entered into on 02/03/2008 under which he has paid Rs.2,14,200/- as advance, agreeing to pay the balance sale consideration at the time of executing the sale deed. That the Ops had further agreed that they will execute sale deed within six months from the date of agreement with a further condition that in case of non-compliance of the assurance given in the agreement they will repay the advance amount together with interest from date of agreement. But the Ops have failed to keep up their promise and on enquiry he found that the Ops had not even taken possession of the total area they had proposed and that the Ops have diverted the money collected from them for their some other business. Then he by referring the legal notice dated 23/05/2009 has stated to had requested the Ops to refund his advance money with interest but have failed to do so and has sought for refund of his advance money with interest @ 24% p.a with Rs.2.00 lakhs as compensation with other reliefs and costs.<br /> <br /> We based on material allegations ordered for issue of notice against Op No.1 only who has appeared through his advocate and filed version. The first Op admitted to had entered into an agreement with the complainant for sale of plot bearing No.30 measuring 1200 sq. ft at a total cost of Rs.6,12,000/- and receipt of advance amount of Rs.2,14,200/- but has denied his liability to pay interest @ 24% p.a while refunding the advance amount. It is further stated because of prohibition by the government for developing land within 8 km of Chickballapur Town he could not get the approval for formation of layout but later on has obtained conversion order of the Dy Commissioner for converting the purchased land for residential purpose and also obtained layout approval permission from the concerned authority. It is because of these reasons he was not able to complete the layout in time and when informed the complainant to wait for some time has come up with this complaint to harass them and thereby has prayed for dismissal of the complaint.<br /> <br /> The complainant along with complaint has produced a copy of the agreement, copy of legal notice he got issued to the first OP. The first Op has produced a copy of layout plan and then copy of government order permitting conversion of the agricultural land and sanctioned plan.<br /> <br /> In the course of enquiry into the complaint, the complainant and first Op have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. Counsel for the Op has filed written arguments. We have heard the counsel for the complainant gone through the written arguments and perused the records.<br /> <br /> <br /> <br /> On the above materials following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Op No.1 has caused deficiency in his service in not providing him a plot agreed within time and has also caused deficiency in not refunding his advance money with interest.<br /> 2. To what relief the complainant is entitled to?<br /> <br /> Point No.1 : In the affirmative<br /> Point No.2 : To see the final order.<br /> <br /> Answer on point No.1: The fact as contended by the complainant that the first Op had agreed to sell a plot measuring 1200 sq. ft in his proposed layout near Chickballapur Town at cost of Rs.6,12,000/- and received Rs.2,14,200/- as advance and entered into an agreement of sale on 02/03/2008 is not in dispute. We find from the agreement of sale that the Op had agreed to refund advance amount in case, the land is not approved by DTCP within 6 months from the date of that agreement, we find this in clause 13 for the agreement. The OP is not denying that he was not able to get the approval from DTCP within 6 months from the date of this agreement and it is found that he had not even obtained permission of the concerned Deputy Commissioner for converting agricultural land for non-agricultural purpose. However, the OP has now produced a copy of the conversion order dated 27/02/2009 and plan approval order dated 21/03/2009. The first Op cannot deny that there is breach of condition of agreement of sale and therefore under the default clause he has agreed to refund the advance money with interest comes into operation.<br /> <br /> The complainant in his affidavit has stated that he after coming to know that no progress was done at the proposed layout and the Op No.1 was not even in possession of land chosen to take back his advance money with interest and thereby has come up with this complaint. We must realize that choice is of the consumer, under the facts of this case whether to go for a site or to get back the money paid particularly when there is failure on the part of the developer and when there is breach of condition of the contract therefore the first Op cannot refuse to pay back the advance amount of the complainant. As such we hold that Op No.1 is deficient in not keeping up his promise and therefore by answering point No.1 in the affirmative inclined to allow the complaint.<br /> <br /> The counsel for the first Op in his written arguments stated as if there was some hurdles in the progress of formation of layout and the issue involved in this proceeding is complicated one and this forum cannot decide the dispute and in support of his submission relied on a decision of the Hon’ble National Commission reported in I 1996 CPJ page 215 and two more decisions on the similar points which are in our view have no application to the facts of the case. As we in the present case do not find any complicated question of law and fact to relegate the complainant to Civil Court. Hence, we pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is allowed. Op No.1 is directed to refund Rs.2,14,200/- to the complainant within 60 days from the date of this order with interest @ 10% p.a from the date of payment of that amount until it is repaid.<br /> <br /> Op No.1 shall also pay cost of Rs.2,000/- to the complainant.<br /> <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 18th March 2010.<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />