O R D E R<br /> <br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> <br /> 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 amount of Rs. 3,60,000/- along with bank interest from 28.10.2006 to till the date of payment with damages and costs on the allegations of deficiency in service. <br /> <br /> 2. The brief averments made in the complaint are as follows:<br /> <br /> Complainant lured away with the offer made by OP in the daily news paper approached OP who formed a residential layout in the name & style “MY COUNTY” at Chikka Hullur Village Kasaba Hobli, Hoskote Taluk, Bangalore Rural District. OP offered to sell Plot No. 614, situated at ‘My County’ layout measuring (40 X 60) 2400 Sq. ft. for a total sale consideration of Rs. 10,80,000/-. The complainant entered into an agreement of sale dt: 3.11.2006 with the OP and paid Rs.3,60,000/- towards advance sale consideration by way of Cheque dt: 28.10.2006 drawn on S.B.I., Bangalore. OP agreed to receive the balance amount within one month from the date of BMRDA approval and register the sale deed in favour of the complainant. Till today complainant did not receive any information from OP about the BMRDA approval. OP failed to execute the sale deed in favour of the complainant as per the Sale agreement. Inspite of repeated requests OP failed to give any information about the progress made in getting the layout approval. Hence caused Legal Notice on 27.10.2009, calling upon OP to return the advance amount with bank interest. In reply OP offered alternative site at Dhanagahalli Village, Jayapura hobli, Mysore Taluk and District. Complainant did not agree for the same and requested OP to refund the amount with bank interest. Once again when OP failed to refund the amount complainant felt deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint for the necessary relief’s.<br /> <br /> 3. On appearance OP filed version admitting the membership of the complainant and receipt of advance amount of Rs.3,60,000/- towards purchase of Plot No. 614 in ‘My County’ layout as per the agreement dt: 03.11.2006. Further agreed to receive the balance amount within one month from the date of getting the approval of the layout plan from BMRDA. Further OP admits issuance of Legal notice and the reply offering alternative site at Mysore Taluk. It is contended by the OP that it had informed the complainant that the project was incomplete because of not getting the conversion order from the concerned authority due to global economic crisis and due to present financial crisis and global depreciation. BMRDA in order to approve Master plan for Magadi, Nelamangala Kanakapura, Hoskote Anekal, Bidadi and Ram Nagara had banned land conversion since 2006. Now said ban is lifted by the Government from 08.09.2009, paper notifications are produced. Now OP has applied for conversion and layout approval. OP is ready to give alternative site in ‘M/s. Royal County’ layout at Mysore Taluk. OP is also ready to return the booking amount. There is no deficiency in service on its part. Among other grounds OP prayed for dismissal of the complaint.<br /> <br /> 4. In order to substantiate the complaint averments complaint filed his affidavit evidence and produced the copy of the agreement dt: 03.11.2006, Legal notice dt: 27.10.2009 reply notice dt: 09.11.2009 and re-joinder notice dt: 08.12.2009. On behalf of OP its partner Mr. V. Bhaskar Reddy filed his affidavit evidence and produced copies of paper publications. Heard the arguments of both the parties.<br /> <br /> 5. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> <br /> Point No.2:- Affirmative in part<br /> <br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 7. At the outset it is not at dispute that the complainant approached the OP who are engaged in forming of layout in the name and style “My County” and intended to purchase Plot No.614 situated at “My county” layout Chikka Hullur Village, Kasaba Hobli, Hoskote Taluk, Bngalore Rural District, measuring (40 X 60) 2400 Sq. fts. for a total Sale consideration of Rs.10,80,000/-. Accordingly complainant entered into an agreement of the sale dt. 03.11.2006 with OP and paid Rs.3,60,000/- by way of Cheque dated 28.10.2006 towards advance Sale consideration. OP agreed to receive the balance consideration amount within one month from the date of BMRDA approval and register the Sale deed in favour of the complainant. Copy of the agreement of sale is produced. Inspite of repeated requests when complainant did not receive any information from OP about the BMRDA approval complainant caused the Legal notice on 27.10.2009. Calling upon OP to return the advance amount with bank interest. In reply OP offered alternative Site situated at M/s. Royal County, layout at Mysore Taluk. Since complainant not interested in the alternative Site once again sent the rejoinder requesting OP to refund the amount. Copy of the notice and reply notice and rejoinder are produced. Inspite of repeated requests when OP failed to refund the amount complainant felt deficiency in service on the part of the OP. Hence complainant approached this forum.<br /> <br /> 8. It is contended for the OP that due to not getting the conversion order from the concerned authority; due to global economic crisis and present financial crisis and global depreciation, the project was incomplete since 2006. Now Government on 08.09.2009 lifted the ban. OP has applied for conversion order. That means without having any title over the land OP has accepted the advance amount from the complainant and entered into agreement to sell before obtaining approval and conversion order from the statutory authorities. This act of the OP amounts to deficiency in service on its part. Though OP offered alternative Site at their other layout called M/s. Royal County, near Dhanagahalli Village, Jayapura Hobli, Mysore Taluk complainant is not interested in the said offer. Hence complainant caused rejoinder notice on 08.12.2009. Inspite of service of notice, rejoinder OP has failed to refund the amount. When OP was aware of the fact that it cannot execute the Sale deed; it could have fairly refunded the amount to the complainant. OP has retained the amount for more than three and half years with an intention to gain wrongfully so as to cause wrongful loss to the complainant. This act of the OP amounts to deficiency in service on its part. We are satisfied that complainant is able to prove the deficiency in service against the OP. Under the circumstances we are of the considered view that complainant is entitled for refund of amount with interest at the rate of 9% p.a. and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following.<br /> <br /> ORDER<br /> <br /> The complaint is allowed in part. OP is directed to refund Rs.3,60,000/- together with interest at 9% p.a. from 28.10.2006 till the date of payment along with litigation cost of Rs.2,000/- to the complainant. <br /> <br /> This order is to be complied within four weeks from the date of its communication. <br /> <br /> (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 18th day of June 2010.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> gm.<br /> <br />