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

DATED 20^TH DAY OF JUNE 2023

ORDER

SMT.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.7,01,500/- with bank interest plus 2% surcharge as per terms of agreement to the complainant from September 2018 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.464 at TALA VALLEY, Village Choravli, Taluka Tala, District Raigad, Maharashtra, for a total cost of Rs.8,00,000/- in the year 2013. Based on the agreement dated 03^rd September 2013, complainant has paid an advance amount of Rs.2,08,500/-.   They have entered into an agreement on 03.09.2013.

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 September 2018 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 after received Rs.7,01,500/- has stopped receiving further installment and after enquiry the complainant came to know that there is a little delay in the project and hence the balance will be received after some month by giving intimation to the complainant. Accordingly the complainant waited till December 2018 but no further deduction was made.

5. It is further case of the complainant that she visited the OP office in October 2018 and asked for the schedule for handing over of the land and its registration. The OP representative after discussion with the authorities replied that the registration will soon start and it will be intimated the date of registration shortly.  The complainant has also requested to organize a site visit for which she was asked to get in touch with the Relationship Manager Ms. Chaya Puttur @ Ms.Chaya H Bolar.

6. The complainant waited for few more months and again visited the OP office where she was 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 2019.  Complainant 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 complainant 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 complainant 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 her financial reach and not acceptable to her.  Again the complainant has contacted the relationship manager and explained her position.  After that the complainant has not got the suitable reply.  

7. When the complainant has not got the suitable reply she has requested the relationship manager to process for return of her money.  At that time the relationship manager informed that no money refund will be given. When the complainant drew her attention to the clause of refund in the agreement then she informed to the complainant that she has to move the court to take the refund.  This is in utter violation of terms of agreement. The complainant has 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 she tried to contact the relationship Manager Ms.Chaya Puttur, she did not take her call. When the complainant tried to registered office of OP at Bangalore the office was locked. With great difficulty she was able to locate new address of the company, the complainant went to the new location of the company when she wanted to meet the vice president of the company he was not available. When she asked for his contact number the staff told her that VP’s number will not be shared.

9. It is further case of the complainant that the conduct of the senior management people avoiding to speak her and frequent change of the office of the OP company without intimating the clients raised suspicion about the intention of the company and the complainant decided to take back the amount. When she failed to reach out the company authorities and evasive reply from the staff. She 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 complainant has 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 complainant. 

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 September 2018 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 complainant is not a consumer 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 complainant. 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 Inbaskaran is merely an employee and authorized signatory of the OP company and their 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 complainant has not approached this Commission in clean hands as she defaulted in making payment of Rs.1,07,000/-. As per clause 4 to 6 of the token receipt of the agreement dated 03.09.2013, the complainant is not entitled to relief sought in the complaint, since the complainant is 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 she has not fulfilled as agreed between them.  The OP has also denied the paragraph 1 to 16 of the complaint and prays for dismissal of the complaint as not maintainable.

16. The complainant has filed affidavit evidence of and relies on Ex.A1 to A6 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.464 at TALA VALLEY, Village Choravli, Taluka Tala, District Raigad, Maharashtra, for a total cost of Rs.8,00,000/- in the year 2013 and entered into token receipt agreement on 03^rd September 2013 as per document No.1. The complainant has paid an advance amount of Rs.2,08,500/- i.e., Rs.2,00,000/- towards booking advance and Rs.8,500/- was the first installment payment. The complainant has totally pay an amount of Rs.7,01,500/- as per document No.2 the statement of accounts. After that the complainant has waited till 2019 and the complainant was regular in payment of the installment. The OP have stopped receiving the balance amount of Rs.1,01,500/- stating that there may be some delay in the project and they will intimate the registration date after completion of the project. 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 complainant for refund of the amount the complainant has 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 complainant is not a consumer as per the C.P. act and the complainant has not approached this commission with clean hands the complainant is 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 complainant and themselves and the amount received by them Rs.7,01,500/-.  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.464 in one acre agricultural land in Tala Valley Project in five years i.e., by September 2018 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 complainant has produced the copy of the bank statement for having paid the amount to the OP as per document NO.2. The complainant has produced the document No.3 letter issued by the OP to the complainant after booking of the project and requested the complainant 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 complainant to the Ops to refund of the amount paid by the complainant Rs.7,01,500/- 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 complainant.

26. The main objection raised by the OP is that the complainant is not a consumer 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.464 in the project within September 2018. If they failed to hand over the plot the OP have agreed to refund the entire amount paid by the purchaser/complainant 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 complainant.

30. It is clear from the very averments made by the complainant that she has paid a total amount of Rs.7,01,500/- and when she was about to pay the balance amount of Rs.1,07,000/- the Ops have stopped receiving the installment amount on the ground that there may be delay in handing over the possession of the plot and they will receive the balance amount at the time of registration and they will notify the registration date to the complainant.  When the Ops have refused to receive the last installment of Rs.1,07,000/- the complainant was unable to pay the amount.  After that she has got doubt about the OP company she is started demanding the OP for refund of the amount. The OPs have failed to hand over the plot even after lapse of 2 to 3 years after the fixed term after September 2016. Even though the complainant has 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 refund 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 complainant arose when the Ops have failed to refund the amount or allot the plot as agreed din 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 complainant. Under these circumstances, the question of limitation does not arise since the Ops after collecting substantial amount from the complainant 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 document NO.3 the letter sent by the OP to the complainant dated 03.09.2013, 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 September 2018.  The complainant has 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 Thala Valley to form the layout and to sell the plots in favour of the intending buyers.  The complainant who is also one of the prospective buyer has entered into the token agreement for purchase of the plot No.465 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 complainant and they have demarcated the plot by furnishing the measurement that they are going to sell the plot NO.464 and they agreed to give the measurement of the plot after demarcation process is completed and after the complainant paid 70% of the sale consideration in favour of the Ops.  Under these circumstances it is clear that the complainant entered into token agreement for purchase of the plot in the layout formed by the Ops namely Tala Valley and she has 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 has stopped receiving the last payment from the complainant and made the complainant 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 sites 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 complainant.

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 complainant has invested her all hard earned money in the year 2013 itself and waited for the plot till 2021. The complainant has suffered financial loss and also mental agony when the Ops have failed to refund the amount and deliver the possession of the plot in her favour. Under these circumstances the complainant is also entitle for the compensation of Rs.1,00,000/- and litigation expenses of Rs.20,000/-.  The Ops are directed to refund Rs.7,01,500/- in favour of the complainant 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.7,01,500/- 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.7,01,500/- 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;