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

DATED 20^TH DAY OF JUNE 2023

ORDER

SRI.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act 2019(hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OPs to refund the entire amount Rs.5,50,000/- with bank interest plus 2% surcharge as per terms of agreement to the complainant from May 2016 till realization.
2. Direct the OP to pay Rs.5,00,000/- as compensation for mental, financial and physical harassment caused to the complainant.
3. Direct the OP to pay Rs.25,000/- as litigation cost.
4. Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The complainant for having filed an application for allotment of Plot No.50 at MRITSA PROJECT, Village Kusgaon, District Raigad, Maharashtra, for a total cost of Rs.5,50,000/- in the year 2011. Based on the agreement dated 07^th December 2010, complainant has paid an advance amount of Rs.1,00,000/-.   They have entered into an agreement on 27.05.2011.

3. As per the terms of the agreement the OP has to hand over vacant possession of the land property within five years i.e., in May 2016 and the agreement further mandates that if there is a delay in development beyond extended period or if the developer is unable to deliver the plot due to governmental restrictions and circumstances beyond their control the developer agreed to refund the entire amount paid by the purchaser along with accrued interest at the existing bank rate + additional 2% surcharge.

4. As per the terms of the agreement the complainant was regular in making the payment. The OP has received the entire amount of Rs.5,50,000/-. The complainants have visited the registered office of the OP and asked for the schedule for handing over of the land and its registration.  After that the dealing representative has replied that registration will soon start and they will intimate the date of registration. Accordingly the complainant waited till May 2016.
5. The complainants have also requested to organize a site visit for which they were asked to get in touch with the Relationship Manager Ms. Chaya Puttur @ Ms.Chaya H Bolar.

6. The complainants waited for few more months and again contacted Ms.Chaya Puttur, OP office where they were shown print of some site photographs and she was informed that the project is delayed by few months due to some government approval and the registration will taken place in 2017.  Complainants after waited for 5 to 6 months again visited the office of the OP where she was taken to the briefing room and some website pictures were shown and she was told to wait for few more months.  The complainants getting suspicious about the intention of the company has decided to discuss the further details with Relationship Manager.  The Relationship manager informed that due to delay in processing of land deal the handing over and registration of the plot will be delayed further and she was suggested to the complainants to apt for alternative project and she has shared the details of the project or deliberation the complainant found that all the alternative projects are beyond their financial reach and not acceptable to them.  Again the complainants have contacted the relationship manager and explained their position.  After that the complainants have not got the suitable reply. 

7. When the complainants have not got the suitable reply they have requested the relationship manager to process for return of their money.  At that time the Relationship Manager informed that no money refund will be given. When the complainants drew their attention to the clause of refund in the agreement then they informed to the complainants that they have to move the court to take the refund.  This is in utter violation of terms of agreement. The complainants have also asked for CMD and VP contact numbers to resolve the issue.  When she tried to contact the CMD it was revealed that he is in Dubai and cannot be contacted.
8. It is further case of the complainant that when they tried to contact the Relationship Manager Ms.Chaya Puttur, she did not take her call. When the complainants tried to go to registered office of OP at Bangalore the office was locked. With great difficulty the complainants were able to locate new address of the company, the complainants went to the new location of the company when they wanted to meet the vice president of the company he was not available. When they asked for his contact number the staff told them that VP’s number will not be shared.

9. It is further case of the complainants that the conduct of the senior management people avoiding to speak to them and frequent change of the office of the OP company without intimating the clients raised suspicion about the intention of the company and the complainants decided to take back the amount. When they failed to reach out the company authorities and evasive reply from the staff. They sent a legal notice on 18.06.2020.  The Ops have neither replied to the notice nor come forward to comply the demand of the complainant. Hence the complainants have filed this complaint for causing financial loss and mental agony and for deficiency of service by the OP company.

10. After receipt of the notice OP3 appeared and later the OP1 and 2 were deleted as per order dated 30.06.2022 and OP4 the company was impleaded by the complainants. 

11. OP3 files version stating that the complaint is not maintainable and the complaint is barred by limitation and it is liable to be dismissed. The cause of action for the present complaint arose in 27.05.2016 when the plot became due for possession. The complainant preferred this complaint only after 02.02.2021 which is almost 5 months after the period of limitation.

12. It is further case of the OP that the present complaint was initially filed on 02.02.2021 against previous OP1 to 3 i.e., Directors and employers of Expat project and development pvt. Ltd. when the case was posted for judgement on 05.04.2022 and when the Hon’ble commission was passing the judgement, noticed that the previous OP has taken the contention that the complaint is bad for misjoinder and thereafter granted an opportunity to the complainant to add the OP herein.  After that on 24.04.2022 the OP4 was impleaded.

13. It is further case of the OP that the complainants are not a consumers under the C.P. Act 2019 as per sec 27 of the C.P. Act. As the complainant herein intends to purchase an agricultural plot and the OP herein are also not liable to render any services to the complainants. In addition to this the transaction in question pertains to purchase of an agricultural plot/land do not falls under the definition of the goods as defined u/s 2(21) of the C.P.Act 2019.  The transaction involved is in respect simplicitor sale of plot between the parties and no services were promised to be provided by the Ops.

14. It is further case of the OP that the complaint is bad for misjoinder of parties as the OP Mr.Henry D’Souza is merely an employee and authorized signatory of the OP company and there lies no cause of action against him.  The present complaint is liable to be dismissed on this ground.   

15. It is further case of the OP that the complainants have not approached this Commission in clean hands. The complainants are not entitled to relief sought in the complaint, since there is no obligation to provide any service by the OP herein. The complainants are praying for such exorbitant reliefs without mentioning the reason and the relief sought is in arbitrary manner and liable to be dismissed.  This commission is not a commission for recovery of money. This commission cannot be used as a means of money recovery Commission to extract money from the OP.  The complaint is liable to dismissed on this ground also.  The complaint is also liable to be dismissed as per terms and conditions agreed between the complainant and OP1 as they have not fulfilled as agreed between them.  The OP has also denied the paragraph 1 to 14 of the complaint and prays for dismissal of the complaint as not maintainable.

16. The complainants have filed affidavit evidence of and relies on Ex.A1 to A5 documents. The authorized signatory of OP has filed its affidavit evidence and one document is marked.

17. Heard the arguments of the OP. Both the parties have filed their written arguments. Perused the written arguments.

18. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

19. Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2:  Affirmative in part

      Point No.3: As per final orders

REASONS

20. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of the complainant and written arguments filed by both the parties and documents.

21. The complainant filed an application for allotment of Plot No.50 at MRITSA PROJECT, Village Kusgaon, District Raigad, Maharashtra, for a total cost of Rs.5,50,000/- in the year 2011 and entered into token receipt agreement on 03.02.2013 as per document No.1. The complainant has paid an advance amount of Rs.1,00,000/- towards booking advance. After that the complainants have paid the entire amount of Rs.5,50,000/- as document No.Ex.P2 and P4. The complainants have waited till May 2016.  When the Ops have not turned up till 2020 the complainant was forced to issue legal notice to the Ops as per document No.4 on 18.06.2020.  When the Ops have failed to reply to the notice and to comply the demands of the complainants for refund of the amount the complainants have filed this complaint.

22. The main contention taken by the OP is that the complaint is barred by limitation and it is bad for misjoinder of parties. The complainants are not consumer as per the C.P. act and the complainants have not approached this commission with clean hands the complainants are not entitle for the reliefs.

23. It is pertinent to note here that the OP has not at all denied the token receipt agreement entered between the complainants and themselves and the amount received by them Rs.5,50,000/-.  On this back ground we have gone through the receipt Token Agreement Document No.1.

24. It is clear from the document No.1 token agreement that the OP has to hand over the vacant possession of plot No.50 in one acre agricultural land in Mritsa Project in five years i.e., by May 2016 and the para No.8 and 9 of the agreement further mandates that if there is a delay in development beyond extended period or if the developer is unable to deliver the plot due to government restrictions or circumstances beyond their control then the developer agrees to refund the entire amount paid by the purchaser along with accrued interest at the existing bank rate + an additional 2% sur charge. 

25. Even though the OP have taken several contentions about the maintainability of the complaint have not at all denied the token agreement entered between them and the complainant. The complainants have produced the copy of the bank statement for having paid the amount to the OP as per document NO.3. The complainants have produced the document No.2 letter issued by the OP to the complainant after booking of the project and requested the complainants to put her signature in the document No.1 on each page and return the same to their office.  Document No.4 is the legal notice got issued by the complainants to the Ops to refund of the amount paid by the complainants Rs.5,50,000/- with interest and legal notice fee and compensation of Rs.5,00,000/-.  The document No.5 is the copy of the postal receipts for having sent the notice through registered post.  Inspite of receival of the notice the Ops have neither replied to the notice nor come forward to comply the demands made by the complainants.

26. The main objection raised by the OP is that the complainants are not consumers since the sale of plot /land does not fall under the definition of the goods u/s 2(21) of the C.P. Act 2019. In support of their contention the OP has also relied on the decision of Devindra Singh Grewal and others –vs- R.S.Real Estate and other 2017(2) CPR 477 and stating that the simplicitor sale of a plot of land where no services are provided the said transaction will fall outside the jurisdiction of the C.P.Act.  The OP has also relied on the Rev. Petition NO.3421/2017 in S.G.Shankar –vs- U.Venkataraja Reddy, passed by the Hon’ble High Court of Hyderabad. 

27. It is also the contention taken by the OP that the complaint filed against OP2 is not maintainable since they are only authorized signatory and employee of OP1 company. The transaction entered between complainant and OP1 as per document No.1 and the OP1 is a company which has a separate legal entity and separate existence and hence the employees of company cannot be made as responsible and liable for the company.

28. It is pertinent to note here that the OP 1 and 2 were deleted as per the order of this Commission dated 30.06.2022 and OP4 the company was impleaded by allowing the implead application filed by the complainant.  Hence the objection raised by the OP relating to misjoinder and non joinder of parties does not arise.

29. It is also the main objection raised by the OP that the complaint is barred by limitation. It is pertinent to note here that as per the terms of the document No.1 token agreement the OP have agreed to develop and hand over the plot NO.50 in the project within May 2016. If they failed to hand over the plot the OP have agreed to refund the entire amount paid by the purchaser/complainants along with accrued interest at the existing bank rate + additional 2% sur charge. The OP has not at all denied the token agreement and the consideration received by them from the complainants.

30. It is clear from the very averments made by the complainants that they have paid a total amount of Rs.5,50,000/-.  After that they have got doubt about the OP company and they have started demanding the OP for refund of the amount. The OPs have failed to hand over the plot even after lapse of more than five years after the fixed term after May 2016. Even though the complainants have made several efforts to get the refund amount the Ops have refused to pay the amount.  It is clear from the very objections raised by the Ops that they have neither refunded the amount nor given possession of the plot as agreed in the token agreement.  The cause of action for filing of the complaint to the complainants arose when the Ops have failed to refund the amount or allot the plot as agreed in document NO.1.  The cause of action is a continuous one and it exists till the OP refund the amount or deliver the possession of the plot or hand over the plot in favour of the complainants. Under these circumstances, the question of limitation does not arise since the Ops after collecting substantial amount from the complainants have neither refunded the amount nor able to develop the project as per their document NO.1 and failed to hand over the possession.

31. It is also clear from the letter sent by the OP to the complainants dated 06.01.2010, they being the company which was involved in development of the property have entered into the agreement with the purchasers on the assurance that they will develop the property and hand over the possession of the plots in favour of the purchasers within May 2016.  The complainants have not entered into the token agreement for purchase of the agricultural land. As per the contentions taken by the OP4 they have initiated the project namely Mritsa Project to form the layout and to sell the plots in favour of the intending buyers.  The complainants who are also the prospective buyers have entered into the token agreement for purchase of the plot No.50 as per the very document executed by the OP as document No.1.  It is also clear from the document No.1 that they have tentatively propose the layout plan and it was shown to the complainants and they have demarcated the plot by furnishing the measurement that they are going to sell the plot NO.50 and they agreed to give the measurement of the plot after demarcation process is completed and the complainants have paid the entire amount. Under these circumstances it is clear that the complainants entered into token agreement for purchase of the plot in the layout formed by the Ops namely Mirsta Project and they have not entered into token agreement for purchase of any land.  In addition to this the Ops have failed to perform their part of the agreement as per the terms and conditions of the token agreement document NO.1.

32. The conduct of the Ops clearly discloses that they have received the substantial amount towards sale consideration and they have with malafide intention and made the complainants to run from pillar to post either to refund the amount or to hand over the plot.  The Ops being the company have practiced unfair trade practice and collected huge money from the purchasers and at last they have cheated the purchasers without refunding the amount and without delivering the plots in their favour as agreed under the agreement. On the other hand, the Ops have raised objections regarding maintainability of the complaint and also limitation and misjoinder and nonjoinder of parties without complying the demands of the complainants.

33. Hence the decisions relied on by the Ops are not at all applicable to the present case. Under these circumstances the complainants have established the deficiency in service and unfair trade practice on the part of the Ops. Hence we answer point No.1 in the affirmative and Point No.2 partly in the affirmative. 

34. Point No.3:- In view the discussion referred above, it is clear that the complainants have invested their all hard earned money in the year 2011 itself and waited for the plot till 2021. The complainants have suffered financial loss and also mental agony when the Ops have failed to refund the amount and deliver the possession of the plot in their favour. Under these circumstances the complainants are also entitle for the compensation of Rs.1,00,000/- and litigation expenses of Rs.20,000/-.  The Ops are directed to refund Rs.5,50,000/- in favour of the complainants with interest at 12% p.a., from the date of respective payments till realization. Hence we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP3 and 4 are directed to refund Rs.5,50,000/- with interest at 12% p.a., from the date of payment till realization.
3. OP3 and 4 are further directed to pay compensation of Rs.1,00,000/- to the complainant along with litigation expenses of Rs.20,000/- to the complainant.
4. OP3 and 4 shall comply this order within 60 days from this date, failing which the OP3 and 4 shall refund Rs.5,50,000/- with interest at 14% p.a., after expiry of 60 days from this date till final payment.
5. Furnish the copy of this order to both the parties and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 20^TH day of June, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;