COMPLAINTS FILED ON:08.07.2011

DISPOSED ON:12.01.2012.

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

12^th DAY OF JANUARY-2012

  PRESENT:-  SRI. B.S. REDDY                   PRESIDENT       

                      SRI.A.MUNIYAPPA                     MEMBER              

COMPLAINT Nos. 1254. 1255. 1256 & 1257/2011

COMMON ORDER

SRI. B.S.REDDY, PRESIDENT

These complaints are filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants seeking direction against the Opposite Parties (herein after called as O.Ps) to refund the amount paid towards advance sale consideration for sale of the sites with interest at 18% p.a. on the allegations of deficiency in service on the part of the Ops.

Since OPs are common in all these complaints, the questions involved and the relief’s claimed is similar, in order to avoid the repetition of facts and multiplicity of reasoning’s all these complaints are stand disposed of by this common order.

2. The case of the complainants to be stated in brief is that:

OP1 is a Partnership Firm and Op2 and 3 are its partners. Ops had advertised and marketed themselves to be an organization dealing with real estate in and around Bangalore City, other than marketing themselves to be one of the most experienced, efficient and honest in their dealings. Ops also assured that in the event of any delay or dissatisfaction, the complainants would be entitled to a money back (return of the advance sale consideration) with 1/3^rd appreciation of any amounts that may have been paid by the complainants. Based on these assurances and promises, the complainants entered into an agreement of Sale dt.19.05.2008 with OP1 in respect of sites stated to have been formed in converted land bearing plot No.503, in layout called “GLOBAL CITI’ at Kodegehalli, Mandur Village, Bidrahalli Hobli, K.R.Puram Bangalore east Taluk, Bangalore Urban District, OP1 executed the agreement deeds acknowledging the receipt of advance sale consideration from each of these complainants and also issued the receipts. The balance consideration was payable after the due approval of the layout and at the time of registration of the sale deeds. Clause-2 of the agreement deeds provides that in the event of complainants failure of confirm whether or not they are opting for the ‘buy back’ scheme or to register the property within six months from the date of execution of the agreement of sale, the Ops shall be entitled to ‘buy back’ the Schedule properties at the appreciation of 1/3^rd value of the booking amount. The Ops failed to fulfill their obligations by furnishing the copies of the title deed documents in respect of the proposed layout. The complainants opted for the ‘buy back’ scheme as stipulated under the agreement of Sale and demanded Ops to repay the advance sale consideration with 1/3^rd appreciation in terms of agreement of sale. Ops failed to fulfill their obligation. The complainants got issued legal notice dt.31.08.2010, demanding the refund of the amount with interest at 18% p.a.. Ops neither complied the demand nor replied the notice. The complainants have also filed a Criminal complaint against the Ops before the CCB Police. The Ops issued D.D.dt.01.02.2011 for the sum of Rs.45,000/-. The said amount covers only 10% of the principal amount, the same has been endorsed in the original agreements. Thereafter, Ops failed to refund the amounts. Hence, the complainant felt deficiency in service and filed complaints. The details of the amounts paid, the site numbers, agreement date, legal notice date and amount refunded are shown in the chart below:-

4. Ops 1 and 3 though appeared through their counsel, in spite of sufficient opportunity given failed to file version. OP2 failed to appear, hence placed ex-parte.

5. The complainants in order to substantiate complaint averments, the complainant in complaint Nos.1254 & 1256/2011 being common filed affidavit evidence, the GPA Holder filed affidavit evidence for the complainants in complaint Nos.1255 and 1257/2011.  

6. Arguments from complainant’s heard, OP side taken as heard.

7. Points for consideration are:

       Point No.1:-  Whether the complainants proved the          

                           deficiency in service on the part of

                            the OPs?

 Point No.2:- Whether the complainants are entitled

                    for the reliefs now claimed?

       Point No.3:- To what Order?

8. 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

We have gone through the complaint averments, the documentary and affidavit evidence of the complainants and their Power of Attorney Holders. On the basis of these materials it becomes clear that these complainants being lured away with advertisement and propaganda of the Ops that they are forming the residential layout called ‘GLOBAL CITI’ at Kodegehalli, Mandur Village, Bidrahalli Hobli, K.R.Puram, Bangalore East Taluk, Bangalore Urban District, entered into an agreement to purchase of the sites to be proposed in the said layout by paying initial consideration amount as shown in the chart above by each of these complainants. Ops have executed the agreement deeds on 19.05.2008 stipulating the terms and conditions. Clause-2 of the Agreement Deeds provides that the purchaser shall have the option of getting the plot’s registered to his/her name or to sell under buy back scheme to the seller. The Seller undertakes to buy back the above plots with an appreciation of the 1/3^rd value on the booking amount, after six months from the date of the receipt of the amount paid at the time of booking of plots. The purchaser should confirm his/her option of getting the plots registered or selling the plot under the buy-back policy to the seller in writing within a period of 6 months from the date of booking of the plots (after paying the advance) failing which the seller will be entitled to buy back the plots without giving any further notice to the purchaser. Further Clause-5 of the agreement deed provides that the purchaser shall pay the balance amount within one month from the date of approval. The said layout approval shall be communicated to the purchaser with a notice of at least one month on obtaining the same through RPAD. Ops failed to perform their obligation by providing the title deeds of the property acquired for the purpose of forming the proposed layout and also failed to show any progress in acquiring or forming the layout. The complainants visited the office of the Ops for obtaining the copies of the title deeds, the layout approval and any other documents relating to the project but Ops failed to furnish any of these materials. In view of the same, the complainants opted for the buy back scheme as stipulated in the agreement of sale and requested Ops to repay the advance sale consideration with 1/3^rd appreciation in terms of the agreement of sale. Ops failed to comply the demand, the legal notice dt.31.08.2010 issued Ops demanding the refund with 18% interest was not replied by Ops. Only meager amount of Rs.35,000/- and 45,000/- is refunded as shown in the above chart. The act of Ops neither in forming the layout proposed and registering the sites or refunding the amount with interest amounts to deficiency in service on their part.

9. The complainants are claiming 1/3^rd of the initial advance sale consideration paid as appreciation under buy back scheme as stipulated in the agreement deeds. The complainants have not issued any notice as stipulated under Clause-2 of the agreement deeds by confirming the option of the getting the plots registered or selling the same under buy back policy to the seller within a period of 6 months from the date of booking of the plots. As the project itself has not materialized the buy back scheme cannot be enforced. The buy back scheme option stipulated under the agreement deeds cannot be enforced in the proceedings before the Consumer Forums. If the object of the complainants was only to get profit under the buy back scheme, they would not fall under the categorically of the ‘consumer’ as defined under the Act. Under these circumstances, we are of the view that the complainants are entitled for refund of the advance sale consideration paid with interest at 18% p.a. by way of compensation. The amounts refunded are to be given deduction in the total amount claimed. Accordingly, we proceed to pass the following:

O R D E R

The complaints filed by the complainants are allowed in part.

 In complaint Nos.1254/2011 and 1257/2011 Ops are directed to refund an amount of Rs.4,15,000/- with interest at 18% p.a. from 19.05.2008 till the date of realization and pay litigation cost of Rs.2,000/- in each case.

In complaint Nos.1255/2011 and 1256/2011 Ops are directed to refund an amount of Rs.3,15,000/- with interest at 18% p.a. from 19.05.2008 till the date of realization and pay litigation cost of Rs.2,000/- in each case.

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

This original order shall be kept in the file of the complaint No.1254/2011 and a copy of it shall be placed in other respective files.

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

(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  12^th day of JANUARY– 2011.)

MEMBER                                                           PRESIDENT

CS.,