COMPLAINT FILED ON: 17.09.2010
DISPOSED ON: 26.02.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
26TH FEBRUARY 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.2148/2010
Complainant | Mr. L.Deivasigamani, S/o T.M.Loganatha Mudaliar, Aged about 57 years, Residing at No.A-602, Salarpuria Sector, HSR Layout, Bangalore-560 068. Advocate: B.M.Shyamprasad V/s. |
OPPOSITE PARTY | M/s. Presidency Group, No.895/1, “Skanda”, 14th Cross, Mahalkshmi Layout, Bangalore-560 086 Rep. by its Managing Partner Mr. Bhaskar Reddy Also at No.717, 2nd Floor, Poornashashi Complex, Modi Hospital Raod, 2nd Stage, West of Chord Road, Basaveshwaranagar, Bangalore-560 086. Advocate: Dhananjaya C.P. |
ORDER
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 Parties (herein after called as O.P) to refund Rs.2,50,000/- and to pay interest at the rate of 18% p.a. i.e., Rs.1,15,000/- and compensation of Rs.5 lakhs and cost on the allegations of deficiency in service on the part of OPs.
2. The brief averments made in the complaint are as follows:
Complainant being lured away with the offer made by the OP in advertisement and brochures and also participating in the Real estate exhibition held at Kanteerva Stadium in the year 2007; offered to buy a site measuring 40 x 60 situated at a project namely “Presidency Elite” near Chikkballapur (NH-7) situated at Doddamaranhalli, yelluvanahalli and varamallenahalli villages of Nandi Hobli, Chikkballapur Taluk and Kolar District. The executives of OP briefed the complainant about that project to be approved by DTCPA and there after complainant visited the OPs office and inspected the plans. Complainant selected plot No.344 and filled the application form booking the plot. On 30.12.2007. OP agreed to sell plot No.344 to the complainant at the rate of 510 per sq. ft. Complainant paid Rs.50,000/- by way of cheque dated 10.01.2008, drawn on Canara Bank, Bangalore OP issued the receipt dated 11.01.2008. Further complainant paid Rs.2 lakh by way of cheque dated 01.02.2008 drawn on SBI, Bangalore. OP has assured to sell the said plot within a period of six months. Inspite of repeated visits and requests for finalization of agreement there was no response from OP. Complainant suffered loss of opportunity to buy the site at the MODA rate. Without any option complainant through his letter dated 09.01.2010 cancelled the booking and requested OP to refund the amount of Rs.2,50,000/- along with interest. Further on 27.01.2010 and on 09.03.2010 complainant followed his request with subsequent letters. Complainant has not received any response to his letter in writing. Complainant’s funds were blocked OP deliberately failed to ensure absolute conveyance of plot No.344 in ‘Presidency Elite’ in favour of the complainant and subsequently refused to refund the amount. On 16.08.2010 complainant caused legal notice calling upon OP to refund Rs.2,50,000/- and another sum of Rs.1,15,000/- as upto date interest on Rs.2,50,000/- at the rate of 18% p.a. and Rs.5 lakhs as damages. Inspite of service of notice there is no response from OP. Hence complainant felt deficiency in service against the OPs under the circumstances he is advised to file this complaint for the necessary relief’s.
3. On appearance OP filed version contending that complainant entered into agreement of sell in respect of plot No.344 in “Presidency Elite” situated at Doddamaranhalli, yelluvanahalli and varamallenahalli villages of Nandi Hobli, Chikkballapur Taluk and Kolar District and complainant paid a sum of Rs.2,50,000/- in respect of the plot. OP had 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 not able to get any conversion or any plan from the concerned authority. The land lock was only for one year but it was extended from time to time and now the said land lock was unlocked by the government by approving master plan on 08.09.2009. Now OP had applied for the conversion and approval of the layout from the concerned authority. OP is ready to give alternative site in the layout formed by the OP in Mr.Royal Orchids situated at Dhanagahalli Village, Jaypura Hobli, Mysore Taluk and district which was sanctioned by Town Planning Authority, Mysore vide its sanctioned layout plan bearing No.AVA1406/08-09 dated 27.02.2009. Complainant filed this complaint to harass the OP and to make wrongful gain for himself. Among other grounds OP prayed for dismissal of the complaint.
4. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of application form, receipts issued by OP, brochures, request letter for refund of amount, correspondence made by complainant, copy of the legal notice and postal receipts. On behalf of OP Bhaskar Reddy, representative of OP firm in the position of Managing Director filed IA with his affidavit evidence and produced copy of the partnership deed dated 18th August 2007. The said IA was allowed on payment of cost. But OP failed to pay cost.
Heard arguments from complainant sides; OP’s side taken as heard.
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 OP is a firm carrying on the business with real estate activities including formation of layouts consisting of residential sites along with infrastructure development. To support the same Op gave advertisement in daily news paper and in brochures, also participated in the Real estate exhibition held at Kanteerava Stadium in the year 2007. Complainant visited the exhibition. The executives of the OP briefed the complainant about the project called “Presidency Elite”. Further informed that DTCPA to be approved for the project was under process and rate of the plot was Rs.525/- per sq. ft. Complainant went to the office of OP and inspected the plan and selected plot No.344 and filled the booking form on 30.12.2007 for purchasing a plot measuring 60 X 40 fts. OP agreed to transfer plot No.344 at the rate of 510/- per sq. ft. Complainant accepted the offer and paid Rs.50,000/- by way of cheuqe on 10.01.2008 and Rs.2 lakhs by way of cheque drawn on SBI, Bangalore on 01.02.2008. Totally complainant paid Rs.2,50,000/- to OP as advance. To substantiate the said facts complainant has produced the receipts dated 11.01.2008 and 19.01.2008 issued by OP. The copy of the application form produced provides the terms and conditions agreeing the sale transaction. OP was unable to fulfill its obligations on account of permission being not granted for conversion and to form the layout. OP has offered to sell the alternative site in their other layout formed at Mysore district. Complainant is not prepared to accept the said offer. Inspite of repeated requests for refund of Rs.2.5 lakhs OP failed to make the payment. Therefore on 16.08.2010 complainant caused legal notice to OP calling upon to refund Rs.2.5 lakhs along with other sum of Rs.1,15,000/- as upto date interest at 18% p.a. and a sum of Rs. 5 lakhs as damages. There was no response from OP. Inspite of repeated requests OP failed to refund the advance amount. Hence complainant approached this forum.
8. As against this case of the complainant; the main defence of the OP in not getting the conversion order from the concerned authority is due government banned land conversion and layout since July 2006 in order to approve the master plan. The said land lock was unlocked by the government on 08.09.2009. Now OP has applied for conversion and approval of the layout from the concerned authorities. That means without obtaining approved conversion order and sanctioned plan from the statutory authorities OP has accepted the advance amount from the complainant. Till date OP has not come forward to execute the sale deed. This act of OP amount to deficiency in service.
9. Further the contention of the OP that complainant is not a consumer 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 complaint is a consumer. Further OP has contended that the complaint is barred by limitation. When OP has accepted part of the sale consideration with a promise to register the plot in favour of the complainant, till the date of registration complainant will get recurring cause of action. Further the contention of the OP that he has executed the agreement on behalf of the 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 in to consideration as there is no such defence in its version. Hence same cannot be accepted. OP on behalf of the firm can settle the claim of the complainant and later on can proceed against the other partners and firms for recovery of the same. Complainant cannot be put unnecessary burden of impleading all the partners. OP filed IA along with affidavit evidence to recall the order. Said IA was allowed on payment of cost OP has failed to pay the cost as per the order dated 31.01.2011. Hence affidavit evidence cannot be considered.
10. OP has offered alternative site at their another layout called ‘M/s. Royal Orchids’ at Mysore in which complainant is not interested. Complainant made repeated requests to OP to refund the amount vide his correspondence dated 09.01.2010, 27.01.2010, 09.03.2010. Complainant caused legal notice to OP calling upon OP to refund the amount along with interest at 18% p.a. and damage. There was no response from OP. This act of OP amounts to deficiency in service on its part. When OP is aware of the fact that it cannot form the layout it would have been fairly refunded the amount to the complainant. Retention of amount so as to gain wrongfully for more than three years in spite of repeated requests and notice amounts to deficiency in service on the part of the OP. 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.2,50,000/- together with interest at the rate of 9%p.a from 19.01.2008 till the date of 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 26th day of February 2011.)
PRESIDENT
MEMBER MEMBER
gm.
