COMPLAINT FILED: 05.08.2010
DISPOSED ON: 19.04.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
19TH APRIL 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO. 1838/2010
Complainant | Ms. Manjari Gupta, D/o Mr. Ajai Kumar Gupta, Aged 28 years, 401, Block A 1, Sree Utopia Apartment, Bangalore-560 087. Advocate: Mr. Uday Shankar R.M., V/s. | |
OPPOSITE PARTY | M/s. Global Citi, Regd. Off at No.895/1 “Skanda”, 14th Cross, Mahalakshmi layout, Bangalore-560 086, Rept. by Mr. V. Bhaskar Reddy Advocate: R.P.Somashekaraiah |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to refund advance paid along with interest at 18% p.a. from 01.06.2007 till payment and litigation cost on the allegations of deficiency in service on the part of the OP.
2. The brief averments made in the complaint are as follows:
Lured away with the offer made by the OP who is engaged in the business of Real estate and forming residential sites and layouts on 13.05.2007 complainant made an application to purchase a plot bearing No. 734, situated in the layout called Global City, at Kodigehalli, Mandur Village, Bidrahalli Hobli, K.R.Puram, Bangalore East Taluk, totally measuring 1200 Sq.ft. at the rate of 735 per Sq. ft. for a total consideration of Rs.8,82,000/-. Complainant entered into an agreement to sell dated 09.06.2007 with Op and paid advance amount of Rs.3,50,000/- to OP by way of two cheques dated 13.05.2007 for a sum of Rs. 1 lakh and a cheque dated 26.05.2007 for a sum of Rs.2.5 lakhs. OP issued the receipts. As per clause-5 of the agreement to sell; OP had agreed to sell the said plot within one month from the date of approval and complainant would pay balance amount of consideration of Rs.5,32,000/- within one month from the approval from the concerned authority. Having waited for more than two year; on 14.09.2009 complainant sent a letter requesting OP to buy back the plot as per the terms of the agreement of sale. There is no reply from OP. On 24.12.2009 complainant sent another letter requesting OP to cancel the agreement to sell and to pay back the advance amount paid along with interest at 18% p.a. There is no response from OP. On 07.01.2010 complainant got issued legal notice requesting OP to refund Rs.3,50,000/- along with interest 18% p.a. from 01.06.2007 within 15 days. In reply OP offered alternative site at Mysore if complainant not interested to refund the amount within 5 months. The reply of the complainant to the said letter returned with an endorsement door lock. On 13.04.2010 and 15.07.2010 complainant sent letters to OP. Inspite of repeated requests and demands Op failed to refund the amount along with interest. Hence complainant felt deficiency in service on the part of the OP. Under these circumstances she is advised to file this complaint for the necessary reliefs.
3. On appearance Op field the version admitting the fact that complainant entered into agreement of sale in respect of plot bearing No.734 at M/s. Global City Layout, situated in Kodigehalli, Mandur Village, Bidrahalli Hobli, K.R.Puram, Bangalore and admits payment of Rs.3,50,000/-. Further OP immediately informed the complainant that the previous government in order to approve the master plan had banned land conversion and layout development from July 2006 because of which OP was unable to get conversion or any plan from the concerned authorities. The land lock was only for one year but later on extended. The said land lock was unlocked by the government on 08.09.2009 by approving the master plan; Now OP had applied for conversion and approval of the layout from the concerned authorities; OP offered alternative site at their “Royal Orchids” layout at Mysore for which plan was sanctioned on 27.02.2009. Complainant only to harass OP filed this complaint with ulterior motive. Among other grounds OP prayed for dismissal of the complaint.
4. To substantiate the complaint averments complainant filed her affidavit evidence and produced copy of the application form, agreement of sale, receipts issued by OP, Buy back application dated 14.09.2009, correspondences, notice and reply to notice, postal returned cover, reply notice of OP and reply of the complainant. On behalf of OP Mr. Bhaskar Reddy, Managing Director filed his affidavit evidence in support of the defence version and produced the copy of the partnership deed. Complainant filed written argument. Heard oral arguments from complainant and taken as heard from OP side.
5. In view of the above said facts the points now that arises for our consideration in this complaint are as under:
Point No. 1 :- Whether the complainant has Proved
the deficiency in service on the part of
the OP?
Point No. 2 :- If so, whether the complainant is
entitled for the relief’s now claimed?
Point No. 3 :- To what Order?
6. We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:
Point No.1:- In Affirmative
Point No.2:- Affirmative in part
Point No.3:- As per final Order.
R E A S O N S
7. At the out set it is not in dispute that complainant lured away with the offer made by the OP who is engaged in the business of Real estate and forming of residential sites and layout entered into an agreement of sale dated 09.06.2007 with OP and paid advance amount of Rs.3,50,000/- by way of two cheques dated 13.05.2007 for a sum of Rs.1 lakh and another cheque dated 26.05.2007 for a sum of Rs.2.5 lakh towards purchase of a plot bearing No. 734, situated in Global City layout, at Kodigehalli, Mandur Village, Bidrahalli hobli, K.R.Puram, Bangalore. To substantiate this fact complainant has produced the receipts issued by OP. The total consideration was fixed at Rs.8,82,000/- for a plot measuring 1200 Sq.ft. As per clause-5 of the agreement to sell OP had agreed to sell the said plot within one month from the date of approval and to receive the balance consideration amount. Inspite of repeated requests and correspondences and legal notice OP failed to register the plot till date. Hence complainant approached this forum for the necessary reliefs.
8. As against the case of the complainant the defence of the OP that complainant is not a consumer and the alleged dispute does not fall under the definition of consumer dispute. This defence of OP has no basis. OP has accepted the advance sale consideration from the complainant which not only includes the cost of the plot but it also includes the expenses incurred towards development of the layout and site. OP has accepted the part of the sale consideration and failed to form and develop the layout as promised. Hence complainant is a consumer. Further OP has contended that the complaint is barred by limitation. When OP has accepted the part of the sale consideration with a promise to register the plot in favour of the complainant, till the date of registration of the plot complainant will get recurring cause of action. Further the contention of the OP that he has executed the agreement on behalf of OP firm, he is not wholly responsible for alleged claim in the absence of non-joinder of other partners as necessary parties cannot be taken into consideration; as that there is no such defence in its version. Hence same cannot be accepted. OP being the partnership firm can settle the claim of the complainant and later on proceed against the other partners for recovery of the same. Complainant cannot be put to unnecessary burden of impleading all the partners.
9. Further it is contended by the OP that due to government ban on land conversion OP is unable to obtain the land conversion order and sanction plan from the concerned authorities. On 08.09.2009 the said land lock was unlocked by the government. Now OP has applied for conversion and approval from the concerned authorities. That means OP had entered in to agreement to sell with the complainant to sell the plot 2 years before obtaining conversion order and sanction plan and failed to register the site or to refund the amount till date evenafter lapse of 3 ½ years. This act of OP amounts to deficiency in service. If OP was aware of the fact that it cannot register the plot could have fairly refunded the amount to the complainant. Retention of amount for more than 3 ½ years inspite of repeated requests and correspondences made on 14.09.2009, 24.12.2009 and legal notice on 07.01.2010, 02.02.2010, 19.02.2010, 23.03.2010, 13.04.2010 and 15.07.2010 amounts to deficiency in service on the part of the OP. As per the reply notice dated 07.01.2010 even after lapse of five months OP failed to refund the amount. Complainant is not ready to take the alternative plot at Mysore instead of Bangalore. The period of five months as requested by OP ends on 26.06.2010. OP has retained the amount to gain wrongfully so as to cause wrongful loss to the complainant. Under these circumstances we are of the considered view that complainant is entitled for the relief of refund of amount paid along with interest and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:
ORDER
The complaint is allowed in part. OP is directed to refund Rs.3,50,000/- together with interest at the rate of 18% p.a. from the date of respective payment till realization and pay litigation cost of Rs.2,000/- to the complainant.
This order is to be complied within four weeks from the date of its communication.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 19th day of April 2011.)
PRESIDENT
MEMBER MEMBER
gm.
