BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 20^th DAY OF JULY 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OP) with a prayer to direct them either to allot her two sites measuring 30x50 feets by receiving balance consideration of Rs.2,20,000/- or refund a sum of Rs.1,20,000/- together with interest and cost of litigation.

2. The brief averments made in the complaint are as under:

The complainant is a member with membership No.1170 and 1171 in M/s.Omkar Estate Pvt. Ltd., company engaged in the business of developing lands and construction.  The OPs formed a scheme of development of residential layout at Omkar Nagar, Hennagara Hosahalli village, Jigani hobli, Anekal Taluk, Bangalore District and called upon the members to remit monthly instalments.  The complainant remitted in all a sum of Rs.1,20,000/- in respect of her both accounts for which she was assured by the OP to allot and register two residential sites measuring 30x40 each in the proposed layout.  That since after paying the said amount of Rs.1,20,000/- the complainant was waiting for allotment of sites from the OP.  However, she did not receive any communication.  Therefore, she visited OPs on 18.01.2002 personally and requested them for allotment of sites and thereafter submitted a letter requesting them to adjust entire amount paid by her towards two sites and allot at-least one corner site measuring 30x40 and refund balance amount.  On repeated reminders and follow up OPs on 30.12.2002 wrote a letter to the complainant calling upon her to remit Rs.80,000/- and assured to allot her a site measuring 40x60.  That on 20.01.2005 the complainant personally visited the office of the OP and submitted a letter requesting them to allot her a site measuring 40x60, for which she was informed that sites measuring 30x50 and 40x60 have been already sold out and two sites each measuring 30x50 are available and each site cost Rs.1,70,000/- and the complainant was called upon to pay the balance amount of Rs.2,20,000/- so that two sites of 30x50 measurement could be allotted and registered in her favour by March 2005.  Thereafter there was no any response from the OPs though the complainant was ready and willing to pay the balance amount of Rs.2,20,000/- despite her regular follow up with the directors of the OP-1 nothing materialized.  Therefore she sent registered letters dated 08.11.2006 and 29.03.2007 calling upon the OPs to allot her the above mentioned two sites by receiving the balance amount.  However, the OPs did not oblige.

Though the complainant was always willing and ready to pay balance amount of Rs.2,20,000/-, OPs failed to keep up their promise and commitment.  Therefore, the complainant got issued a legal notice through her counsel on 29.06.2011.  Despite the legal notice, OPs failed to appear and register the sites in her favour by receiving balance amount.  Therefore, she was constrained to approach the Forum with this complaint.

For the reasons stated above, the complainant prays for direction to the OPs to allot her and register two sites measuring 30x50 each by receiving balance consideration amount of Rs.2,20,000/- and in failure to do so the OPs be directed to refund her the advance sale consideration of Rs.1,20,000/- together with interest @ 18% p.a from the date of receipt till the date of realization with cost.

3. In response to the notice issued, OPs.1, 2, 3, 5 & 6 entered their appearance through their advocate.  Whereas OPs.4, 7, 8 & 9 remained absent and were placed ex-parte.

OPs.1 & 2 together filed their version contending in brief as under:

The complaint is barred by limitation since the last instalment paid by complainant was on 18.01.2002.  It is true that, the complainant became member of the company M/s.Omkar Estate Pvt. Ltd.  It is true that the company offered to allot residential sites of 30x40 to the members who have paid the entire sum of Rs.1,00,000/- along with other charges, as per the decision of OP company.  Clause-3 of allotment letter provides that the allottee shall pay the consideration of Rs.1,00,000/- in 50 monthly installments at the rate of Rs.1,700/- along with development charges of Rs.10,000/- payable in five installments on every 10^th month at Rs.2,000/- each.  The defaulters are not entitled for any sites or value of the sites or the enhanced value of the sites.  That the complainant is admittedly a defaulter since she has not paid entire instalment amount of Rs.1,00,000/- each.  That the complainant has also not tendered the balance amount at any point of time during these 10 years.  Clause-4 of the allotment letter provides that if the allottee commits default in paying instalments the allotment stands cancelled and the allottee loses her right to claim the sites and the refund of the amount paid by the allottee will be made on completion of the scheme after deducting Rs.5,000/-.  Thus the complainant is debarred from claiming sites or interest or any relief.  The claim of the complainant for refund is barred by limitation.  That the complainant as well as other allottees did not pay the instalments regularly as a result, the OPs suffered huge loss and could not pay the said consideration to the land owners as a result the land owners have filed cases against the OPs which are still pending in Anekal court and in other courts.  The Managing Director or Directors are not at all responsible for the affairs of the company and the company alone is liable to pay any amount to the complainant is so ordered.  Since the complainant has failed to pay the complete instalment, developmental charges and other charges as required to be paid by her she has lost her right to claim the sites as well as the instalment already paid by her.  Therefore, OPs.1 & 2 prays for dismissal of the complaint.

4. OP-5 filed his version contending in brief as under:

This OP is not in the knowledge of the complainant becoming the member of the M/s.Omkar Estates Pvt. Ltd.  He is also not aware as to whether the complainant has remitted a sum of Rs.1,20,000/- towards purchase of 2 sites measuring 30x40 each.  That the complaint filed by the complainant is barred by limitation and she is not at all entitled any of the reliefs claimed.  The complainant is neither entitled for two sites as claimed by her and also refund of the instalment of Rs.1,20,000/- stated to have been paid by her.  That the entire affairs of the company was managed by Joint Managing Directors K.R Suresh Kumar and Talam V.Nagaraj i.e., OPs.2 & 3 and they were in-charge of all the affairs and assets of the company and they were never in-charge of the affairs of the company.  This OP is not aware of any of the transactions of the company and not liable to answer the claim of the complainant.  That in the event this Forum were to proceed for recovery of the alleged amount due to the complainant, this Forum may proceed against the properties, including the converted lands in survey No.29, totally measuring 1 acre 9 guntas situated at Hennagere Hosahalli Village, Jigani Hobli, Anekal Taluk, Bangalore District which are possessed by the Managing Director of M/s.Omkar Estate Private Limited.

Therefore, OP-5 prays for dismissal of the complaint as against him.

5. OP-6 filed his version taking up almost very same defence set up by OP-5 in his version and further contended as under:

That the Managing Director K.R Suresh Kumar and Joint Managing Director T.V Nagaraj, are the persons who are responsible to answer the claim of the complainant.  This OP was not participating in day-to-day affairs of the company therefore he is not aware of the alleged transactions made by the complaint.  That the complaint is barred by limitation and the complainant is not entitled for any other reliefs claimed.  The Managing Director/Joint Directors are alone responsible to pay the amount if any to the complainant and not this OP-6.  Therefore, OP-6 prays for dismissal of the complaint as against him.

6. Subsequent to filing of the version by the OPs, the complainant was called upon to submit his evidence by way of affidavit.  Accordingly, he submitted his affidavit evidence.  Despite time and opportunity given none of the OPs submitted their evidence by way of affidavit.  Complainant submitted his written arguments.   

7. The points that arise for our determination in this case are as under:

        8. Perused the allegations made in the complaint, the OPs.1, 2, 3, 5 & 6 for the reasons best known to them did not filed their affidavit evidence to substantiate the averments made in their respective versions.  Perused the sworn testimony of the complainant, documents produced by her, written statement and other materials places on record.

9. Our answer to the above points are as under:

REASONS

10.  The complainant in her affidavit evidence reiterated the allegations made in the complaint.  The complainant to substantiate that, she was member of M/s.Omkar Estates Private Ltd., having two membership nos.1170 & 1170 and also regarding payment of Rs.60,000/- made towards purchase of sites has produced the copy of selected members ledger issued by the said developer.  According to the said ledger extract, the complainant has paid a sum of Rs.60,000/- in regard to membership No.1170 and another Rs.60,000/- regarding membership No.1171.  Thus, the complainant as per the invitation of the said developer remitted total sum of Rs.1,20,000/- towards allotment of 2 sites in her favour measuring 30x40, in Omkar Nagar Residential layout being developed by OPs.  The complainant since did not get any communication from OP regarding allotment of sites as promised by them addressed a letter dated 18.01.2002 requesting the OPs to allot her only one site, instead of two sites, as requested earlier as she is unable to pay the remaining amount and further requested to refund her excess amount of Rs.5,000/- after adjusting Rs.50,000/- for the corner site.  However, the OPs have not responded to the said letter but in their letter dated 30^th December 2002 produced at Annexure-C the OPs have called upon the complainant to make balance payment of Rs.80,000/- so as to enable them to register a site measuring 40x60 in her favour.  The complainant having agreed to the said letter dated 30^th December 2002 repeatedly requested the OPs to allot her a site measuring 40x60 and expressed her willingness to pay the balance amount as and when called for.  It appears from the material placed on record, the OPs did not respond to her request therefore she also addressed a letter dated 20^th January 2005, the copy of which is at Annexure-D requesting the OPs to allot her site measuring 40x60 and register the same in her favour by receiving balance amount of Rs.80,000/-.  However, the OPs have not responded to the said letter also.

11. The above mentioned letter correspondence between the complainant and the OPs discloses that despite the willingness of the complainant to pay balance amount, the OPs have failed to allot a site in favour of complainant even according to their own letter dated 30^th December 2002.  None of the OPs who are contesting the complaint explained as to why no allotment letter was issued in favour of complainant stating the serial number of sites allotted in her favour and the time within which she has to pay the balance amount and get the site registered in her favour.  This conduct of OPs in not allotting any site in favour of the complainant despite her willingness to pay balance amount amounts to deficiency of service on their part.  As already stated above none of the contesting OPs filed their affidavit evidence to substantiate the averments made in their respective versions.  In absence of any affidavit evidence the averments made in the version cannot be accepted to be true and correct.

12. The OPs in their respective versions took up a contention that the complaint is barred by limitation therefore the same has to be dismissed as not maintainable.  The OPs in their version contended that the last payment was made by the complainant on 18.01.2002 but she has approached this Forum only on 24.11.2011 after more than 10 years from the date of last payment.  Therefore, the complaint filed by her is barred by limitation.  The OPs.1 & 2 in para-5 of their version contended that clause-4 of the allotment letter provides that in the event the allottee commits any default in paying the installments he/she would lose her right to claim the site and refund of the instalment amount paid by her he/she will be made on completion of the scheme after deducting Rs.5,000/-.  Thus as per the clause-4 of the allotment letter as stated by the OPs.1 & 2, if the complainant had committed any default in payment of instalment they should have refunded her Rs.1,20,000/- after deducting Rs.5,000/- after completion of the scheme.  Admittedly the scheme has been completed and even the company is liquidated.  However so for OPs have not refunded the amount received from the complainant in terms of clause-4 of the allotment of the letter as stated by them in their version.  As long as OPs retain the amount of the complainant she gets right to claim the same.  Since the OPs failed to refund the instalment amount received from the complainant even after 10 years from the date of receipt, she is justified in filing the complaint in the year 2011.  Therefore, we are of the opinion that, the complaint is not barred by limitation and the same is very well maintainable.

13. OPs have retained the amount of Rs.1,20,000/- collected from the complainant illegally without allotting her site despite her repeated reminders and requests therefore they are liable to refund the said amount together with interest @ 18% p.a.  The OPs have absolutely no justification in retaining the amount paid by the complainant all these years.  The Learned Advocate for the complainant submitted that due to deficiency of service on the part of OPs, the complainant was put to great hardship and mental agony therefore prayed for awarding reasonable amount of compensation.  Looking to the facts and circumstances of the case, we feel it appropriate to direct the OPs to pay compensation of Rs.25,000/- to the complainant for deficiency of service.

14. The order could not be passed within the stipulated time due to heavy pendency. 

15. In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  The OPs/Official Liquidator is directed to refund a sum of Rs.1,20,000/- to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further the OPs are directed to pay compensation of Rs.25,000/- for deficiency of service together with litigation cost of Rs.4,000/-.

This order is to be complied within four weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 20^th day of July 2016)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 25.02.2013.

1. Smt.Rajeshwari.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties – Nil.

Documents produced by the Opposite Parties.1 to 3:

  MEMBER                                                             PRESIDENT

   Vln*