Date of Filing:14.12.2007<br /> Date of Order:31.05.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 31ST DAY OF MAY 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> COMPLAINT NO: 2500 OF 2007 <br /> <br /> Anwesh Adhikari,<br /> S/o Dr. G.R. Adhikari,<br /> National Institute of Rock Mechanics,<br /> Champion Reefs Post,<br /> K.G.F-563117,<br /> Represented by his GPA and father<br /> Dr. G.R. Adhikari. Complainant<br /> <br /> V/S<br /> M/s Happy Home Construction Pvt. Ltd.,<br /> Company incorporated under the <br /> companies act, Having its office at<br /> No.179/12-10, II Cross Road,<br /> Wilson Garden, Lalbagh-Hosur Road,<br /> Bangalore-560 027,<br /> Rechristened/Now known as <br /> City Square Enterprises Pvt. Ltd.,. Opposite Party<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed U/Sec.12 of the Consumer Protection Act, 1986 praying for refund of Rs.4,32,000/- paid to the opposite party towards purchase price and Rs.40,000/- towards registration expenses and the complainant has claimed Rs.4,7,808/- interest and damages of Rs.10,00,000/- from the opposite party. <br /> The facts of the case are that, the opposite party notified a project of residential sites and offered to the complainant property bearing site No.13 formed out of the sy.No.84/1 and 85 of Begur village, Jala Hobli, Bangalore North Taluk, measuring 60” X 40” in a layout known as Airport County Annex. The complainant purchased a property and paid an amount of Rs. 4,72,000/-. Opposite party executed an agreement dated 9/5/2004 and sale deed dated 9/6/2004. The opposite party assured at the time of registration that property is free from encumbrance of the court attachment/acquisition proceedings. Opposite party did not assured at the time of registration that property is free from Encumbrance/Court Attachments/Acquisition Proceedings. Opposite party did not disclose that property was acquired by the KIADB for the purpose of Devanahally Air Port, Bangalore, on the assurance the complainant paid the amount and obtained sale deed on 9/6/2004. The opposite party intentionally suppressed the fact that a fraudulent intention to deceive the complainant sold the property and received consideration amount. Therefore, the opposite party is liable to pay Rs.18,17,808/- to the complainant. <br /> 2. Notice was issued to opposite party through RPAD. Notice served on the opposite party by hand. The complainant produced copy of notice served on the opposite party. Since the opposite party has not appeared before this Forum, the opposite party is placed exparte by order dated 24/3/2008. The complainant has filed affidavit evidence and documents and arguments are heard. <br /> 3. The points for consideration are:-<br /> 1) Whether there was any deficiency in service on<br /> the part of the opposite party?<br /> 2) Whether the complainant is entitled for the refund<br /> of consideration amount with interest and damages?<br /> <br /> 4. I have gone through the complaint and numerous documents filed by the complainant in support of his case. The complainant has produced copy of sale deed and agreement. The complainant has produced land acquisition notification. The preliminary notification for acquisition of sy.No.84 and 85 was published in the gazette on 6th April-2004. In this case, the opposite party entered into an agreement of sale with the complainant on 9/5/2004 and sale deed was executed after receiving the amount from the complainant on 9/6/2004. On the date of agreement and also sale deed already the government had issued notification for acquisition of the sy.No.84 and 85 and other lands. Therefore, the opposite party could not have entered into an agreement of sale with the complainant. The opposite party knowing fully well had executed sale deed of the schedule property in favour of the complainant even though the particular land was notified for acquisition by the KIADB. The execution of sale deed in favour of the complainant is nothing but a fraud on the part of the opposite party. It has been assured by the opposite party that the property was free from any encumbrance/court attachment/acquisition proceedings under the Land Acquisition Act. In spite of this the opposite party had executed sale deed after receiving the huge amount of Rs.4,32,000/- from the complainant. Therefore, the act of the opposite party in this case is really shocking and it is a unfair practice on the part of the opposite party. The complainant has produced agreement dated 9th May-2004. In this agreement consideration amount mentioned is Rs.4,32,000/-. The complainant has produced receipts for having paid Rs.4,32,000/- to the opposite party. The case made out by the complainant has gone unchallenged. The opposite party has not appeared before this Forum and defence version not filed by the opposite party. Therefore, there is absolutely no reason to disbelieve the case of the complainant. Admittedly, the property sold to the complainant after publication of preliminary notification for acquisition. Therefore, the opposite party has played a fraud on the complainant. Hence, the opposite party is liable to refund the amount with interest. If the land had been acquired by the KIADB under the Land Acquisition Act, the opposite party will be at liberty to receive the compensation amount from the government. The complainant has prayed grant of interest at 24% p.a, but I feel this will be on higher side. The reasonable and just interest that could be awarded is at 18% p.a. on the amount paid by the complainant. The complainant has prayed Rs.10,00,000/- as compensation from the opposite party for the deficiency in service. On the facts and circumstances of the case, I am of the opinion that it is not a case to grant compensation to the complainant. The complainant is entitled for the refund of amount with interest from the date of his payment till realization. This relief will definitely meet the ends of justice. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 5. The complaint is allowed. The opposite party is directed to refund Rs.4,32,000/- the consideration amount received from the complainant + Rs.40,000/- received towards registration fee. The total amount payable is Rs.4,72,000/- by the opposite party. The opposite party is directed to pay interest at 18% p.a on Rs.4,72,000/- from 9/6/2004 till realization. The complainant is entitled to Rs.5,000/- towards cost of the present proceedings from the opposite party. The opposite party is directed to comply the order within 30 days from the date of this order.<br /> <br /> 6. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 7. Pronounced in the Open Forum on this 31ST DAY OF MAY 2008.<br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br />