COMPLAINTS FILED ON:21.10.2011

DISPOSED ON:30.03.2012.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

30^th DAY OF MARCH-2012

  PRESENT:-  SRI. B.S. REDDY                   PRESIDENT       

                      SRI.A.MUNIYAPPA                MEMBER              

COMPLAINT Nos. 1936, 1937, 2089 & 2317/2011

C O M M O N  O R D E R

SRI. B.S.REDDY, PRESIDENT

All these complaints Under Section 12 of the Consumer Protection Act of 1986 are filed by the respective complainants against the same Opposite Party (herein after called as O.P.) on the allegation of deficiency in service on the part of the OP.

2. In order to avoid the repetition of facts and multiplicity of reasoning’s, these complaints are stand disposed off by this common order.

3. The complainant in complaint No.2317/201 booked site bearing No.7 in the project “APNA AASHIANA” by paying sale consideration of total Rs.3,50,000/- in 4 instalments between 29.07.2006 to 07.07.2008. Since the OP failed to fulfill its obligation of forming a layout and allotting a site, the complainant cancelled the booking and got refunded Rs.1,50,000/- on 14.09.2010, 50,000/- During June 2011 totally Rs.2,00,000/-. Out of the same, an amount of Rs.1,34,500/- is paid towards refund of the principle amount and sum of Rs.65,500/- towards the interest on the amount of Rs.3,50,000/-. Thus OP is still due to an extent of Rs.2,84,750/- towards principle and interest at 10% p.a. The complainant contended that through e-mails OP was demanded to refund the amount, OP has not complied the demand hence the complainant is seeking for refund of Rs.2,84,750/- with interest at 10% p.a. from June-2011 and Rs.20,000/- towards compensation.

4. The complainants in complaint No.1936/2011, 1937/2011 and 2089/2011 filed the complaints through their Power of Attorney Holder. In complaint No.1936/2011, the complainant booked a site bearing No.42 measuring 30 X 40 feet in the project called “APNA AASHIANA” by paying consideration amount of Rs.1,66,250/- through cheque on 09.12.2006. OP issued the receipt acknowledging the receipt of the said amount. OP failed to fulfill its obligation, the complainant demanded for refund of the amount and Op has issued a cheque for Rs.25,000/- to one Balkrishna Prasad, due in that amount a sum of Rs.12,000/- has been deposited to the complainants account. The balance amount of Rs.1,54,250/- is still due towards principle from the Op. In spite of several demands and legal notice, OP has not paid the balance principle amount with interest. Hence the complaint is seeking direction to handover the possession of the said site and to refund the outstanding amount of Rs.1,54,250/- with interest at 12% p.a.

5. In complaint No.1937/2011, the complainant has booked the site No.43 in the same project by paying total consideration of Rs.1,81,625/- through cheque on 09.12.2006 and OP has issued the receipt. When OP was not able to fulfill its obligation, the complainant demanded for refund of the amount and Op has refunded the amount to an extent of Rs.13,000/-, the balance amount due is Rs.1,68,625/- with interest at 12% p.a. Thus the complainant is seeking direction to handover the possession of the site No.43 and to refund the outstanding amount of Rs.1,68,625/- with interest at 12% p.a.

6. In complaint No.2089/2011, the complainant booked a site No.06 in the same project by paying an amount of Rs.1,83,125/- through cheque dt.09.12.2006 and OP has issued the receipt. When OP failed to fulfill its obligation, the complainant demanded for refund of the amount with interest at 12% p.a. OP refunded an amount of Rs.1,33,125/- on 13.05.2010 through cheque and another sum of Rs.50,000/- and Rs.25,000/- respectively inclusive of a sum of Rs.12,000/- and Rs.13,000/- for customers Smt.Sarwatiya Devi and Smt.Sangeetha kumari, relatives of the complainant. Thus the complainant has received total refund of Rs.1,83,125/-. The OP is liable to pay interest at 12% on the said amount which amounts to Rs.1,09,875/-. The complainant is seeking direction to handover the possession of the site No.06 and to pay interest outstanding amount of Rs.1,09,875/- at the rate of 12% p.a. from the date of payment till realization.

7. In the version filed, the fact that all these complainants booked the sites as mentioned in the respective complainants “APNA AASHIANA”, Phase-III proposed to be formed by OP is admitted. It is contended that the complaints are not maintainable, as the complainants claim is for recovery of the money, the nature of dispute is of civil nature, the complainants have to approach the Civil Court. It is stated that the Op purchased the lands in and around Thimmasandra Villages to form a residential layout during December-2006. At the time of booking the sites these complainants were informed that Op has applied for all the required approval to form a residential layout and the process of getting the same may take some time, as soon as the OP get the approvals the sites will be registered. OP has admitted the fact of these complainants having deposited the amount while booking the site as shown in the complaints. It is stated that while the approvals were pending the Government has taken decision declaring the villages where these lands are situated as Industrial Zone and BMRDA has planned STTR Road to be formed in the said lands. Hence getting of approval for the formation of sites was delayed. Now based on the application made by OP, BMRDA has already passed an order changing the land use from Industrial purpose to residential purpose, OP will form a layout and get the layout plan approved and get register the sites in favour of the complainants. The complainants after booked the sites changed their minds and informed OP that they wanted to cancel the sites and requested to refund the advance amount paid by them. Accordingly OP has refunded sum of Rs.2,00,000/- in complaint No.2137/2011 and agreed to pay the remaining amount of Rs.1,50,000/- in instalments. After receiving the said amount, the complainant has filed this false complaint. Similarly in complaint No.1936/2011, 1937/2011 and 2089/2011. OP has refunded part of the amount paid and agreed to pay the remaining amount. The complainants are not entitled for interest as at the time of booking sites it was agreed between the complainants and the OP that in the event of cancellation of the sites, the complainants are entitled only for the refund of the principle amount and not for the interest if the full amount of the sites is not paid. As per the terms and conditions of booking of sites the complainants are entitled for the interest, only if the full payment of the sites is made. OP has not utilized the amount deposited by the complainants to make profit in the business. Due to the global recession there was drastic fall down in the real estate business in and around Bangalore, because of the same OP has under gone huge loss in the business, he has invested huge money on the above said lands. Hence, it is prayed to dismiss the complaints.

8. In order to substantiate complaint averments, the complainant in complaint No.2317/2011 filed affidavit evidence, the P.A.Holder of complainants in other complaints filed affidavit evidence.

9. The Managing Partner of OP filed affidavit evidence in support of the defence version.

10. Arguments on complainants side heard, OP side was taken as heard.

11. Points for consideration are:

    Point No.1:- Whether the complainants proved

                       proved the deficiency in service on the

                        part of  the OP?

     Point No.2:- Whether the complainants are entitled

                 for the reliefs now claimed?

   Point No.3:- To what Order?

12.We record out findings on the above points:

   Point No.1:- Affirmative

           Point No.2:- Affirmative in part.

           Point No.3:- As per final Order.

R E A S O N S

13.OP is a registered Partnership Firm involved in the business of the Real Estate. These complainants were lured away by OP with a wide publicity in Daily Newspapers and their Websites about the proposed residential layout to be formed in the land situated near Adur Village, Kasaba Hobli, Anekal Taluk, near Bannerghatta-Anekal Road called ‘APNA AASHIANA-PHASE III’ these complainants booked sites in the proposed layout and paid the amounts to the Op. Out of total amount of Rs.3,50,000/- paid in complaint No.2317/2011, OP has refunded Rs.2,00,000/- out of that refunded amount of Rs.2,00,000/-, the complainant has adjusted an amount of Rs.1,34,500/- towards principle amount and sum of Rs.65,500/- towards interest on the amount of Rs.3,50,000/- and he has claimed the balance amount of Rs.2,84,750/- with interest at 10% p.a. from June-2011.

14. OP was unable to form the layout on account of the State Government having declared the area where lands are purchased for a layout, as Industrial Zone and BMRDA has planned STTR Road to be formed in the said lands. Thus OP claims that because of the same there was delay in getting approval for formation of the sites and now on the basis of their application the BMRDA has already passed an Order changing the land use from Industrial purpose to residential purpose and Op will form the layout and get the layout of due plan approved and register the sites in favour of the complainants. In our view, OP has not produced any material to substantiate this defence to show that BMRDA has passed the order changing the land use from Industrial purpose to residential purpose. These complainants paid the amounts in between 2006 and 2008 for purchase of the sites, till now there is no any progress in the layout proposed to be formed. The complainants cannot be made to wait indefinitely till OP gets the approval for the layout to register the sites. Under these circumstances, we are of the view that the complainants were justified in demanding the refund of the amount. In the E-mails addressed Op has admitted the liability to refund the amount. We are unable to accept the defence of the Op that only complainants are entitled for refund of the principle amount as they have not paid the entire sale consideration for the sites, only part of amount was deposited. When OP was not able to form the layout and register the sites, it would have been fair enough on its part to refund the amount received from these complainants. OP has retained the amounts making use of the same for purchase of the lands thereby depriving the complainants the returns from such amounts, as such OP is liable to pay interest on the said amounts. There is no material to show that the complainants were entitled to interest only when the full payment was made for the sites. Whatever the amount deposited by these complainants, has been made use of by this OP for his benefit as such the complainants are entitled for interest at 10% p.a. by way of compensation which is reasonable. The act of OP in not refunding the amount with interest on its failure to form the layout is deficiency in service on its part. Accordingly, we proceed to pass the following:

O R D E R

The complaints filed by the complainants allowed in part.

In complaint No.1936/2011 OP is directed to refund an amount of Rs.1,54,250/- with interest at 10% p.a. from 09/12/2006 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

In complaint No.1937/2011 OP is directed to refund an amount of Rs.1,68,625/- with interest at 10% p.a. from 09/12/2006 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

In complaint No.2089/2011 OP is directed to pay interest at 10% p.a. on the amount of Rs.1,83,125/- from 09.12.2006 till 13.05.2010 and pay litigation cost of Rs.2,000/- to the complainant.

In complaint No.2317/2011 OP is directed to refund an amount of Rs.2,84,750/- with interest at 10% p.a. from June-2011 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

OPs to comply the order within four weeks from the date of this order.

Send the copy of this order to both the parties free of cost.

This original order shall be kept in the file of the complaint No.1936/2011 and a copy of it shall be placed in other complaint.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 30^th day of  MARCH– 2012.)

MEMBER                                                         PRESIDENT

Cs.