COMPLAINT FILED ON: 26.07.2011
DISPOSED ON:31.05.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
31st DAY OF MAY-2012
PRESENT :- SRI. B.S. REDDY PRESIDENT
SRI.M.MUNIYAPPA MEMBER
COMPLAINT NOs.1370/2011,
& 1371/2011
COMPLAINT NO.1370/2011 Mr.Navaneeth H S/o
COMPLAINANT Anantha Krishna Rao,
Aged about 24 years &
R/at No.43, ‘Guru Krupa’
Bloom Field Garden,
1st Main, 2nd Cross,
Ramachandrapura,
Vidyaranyapura Post,
Bangalore-560 097
by his duly constituted
Attorney
Sri.H.Anandha Krishna Rao.
Adv:Sri.R.Sreedhar
COMPLAINT NO.1371/2011 Mrs.Soumya Arun W/o
COMPLAINANT H.Navaneeth,
Aged about 24 years &
R/at No.43, ‘Guru Krupa’
Bloom Field Garden,
1st Main, 2nd Cross,
Ramachandrapura,
Vidyaranyapura Post,
Bangalore-560 097
by her duly constituted
Attorney
Sri.H.Anandha Krishna Rao.
Adv:Sri.R.Sreedhar
V/s.
OPPOSITE PARTY M/s Royal Enclave
A Partnership Firm with its
office at 895/1 ‘Skanda’,
14th Cross,
Mahalakshmi Layout,
Bangalore-560 086.
Represented herein by its
Partner Mr.V.Bhaskar Reddy.
( Adv:Sri. G.S.Suresha)
COMMON ORDER
SRI. B.S. REDDY, PRESIDENT
Both these complaints are filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants seeking direction against the Opposite Party (herein after called as O.P) to refund the sital deposit with interest at 18% p.a. and pay compensation of Rs.1,00,000/- along with litigation expenses of Rs.20,000/- on the allegation of deficiency in service.
2. The case of the complainants to be stated in brief is that:
The complainants during Januray-2008 were lured away by colourful advertisements, brochures and other representations of the OP with regard to the project called ‘Royal Enclave’ at Maratikyatanahalli Village, Jayapura Hobli, Mysore Taluk, Mysore Dist. The complainant in complaint No.1370/2011 booked site No.967 measuring 1200 Sq.ft and paid an amount of Rs.2,88,000/- as advance through three cheques for Rs.45,000/- on 04.01.2008, Rs.2,13,000/- on 17.01.2008 & Rs.30,000/- on 02.01.2008. OP issued the receipts and executed the agreement deed on 24.01.2008.
The complainant in complaint No.1371/2011 booked site No.968 measuring 1200 Sq ft in the said project and paid an amount of Rs.2,88,000/- as advance through two cheques one for Rs.2,13,000/- dt.04.01.2008 and another for Rs.75,000/- of the same date. OP has issued the receipts and executed agreement deed dt.24.01.2008.
OP was unable to form the layout and allot the sites as assured, the complainants were ready to pay the balance consideration and get the sale deed executed. OP neither formed any layout nor refunded the amount received, the complainants felt deficiency in service on the part of the OP and filed these complaints.
3. On appearance, OP filed version taking similar contentions in both complaints. OP admits that each of these complainants have paid sum of Rs.2,88,000/- for the sites booked in the proposed project. It is contended that the previous Government in order to approve the Master Plan had banned land conversion and layout development from July-2006, because of which the OP was not able to get any conversion or any plan from the concerned authority. Now the said land lock was unlocked by the Government by approving Master Plan. Now OP applied for conversion and approval of the layout from the concerned authorities. The process of completion of the project is very much on and it shall be completed within a period of six months and further do not want to loose the customer. The complainants are bad for non joinder of other partners of the Op firm. The relief’s claimed does not fall within the jurisdiction of this Forum, the complainants have to approach competent Court to get the relief’s. The complaints are not “Consumer” as defined under the Act. The complaints are barred by limitation. Hence, it is prayed to dismiss the complaints.
4.The complainants in order to substantiate complaint averments got filed affidavit evidence of their Power of Attorney Holder. The Managing Partner of OP filed affidavit in support of defence version.
5. The complainants filed Written Arguments.
6. Arguments heard from complainant’s side, OP side taken as heard.
7. Points for consideration are:
Point No.1:-Whether the complainants have proved
the deficiency in service on the part of
the OP?
Point No.2:- If so, 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 are:
Point No.1:- Affirmative
Point No.2:- Affirmative in part
Point No.3:- As per final Order.
R E A S O N S
9. At the out set, it is not in dispute that these complainants being the husband and wife after going through the colourful advertisements and brochures issued by OP in respect of proposed layout called ‘Royal Enclave’ at Maratikyatanahalli Village, Jayapura Hobli, Mysore Taluk and District booked each site measuring 1200 Sq.ft site Nos.967 and 968 and paid initial sale consideration of Rs.2,88,000/- each. OP has issued the receipts and executed the agreement deeds incorporating the terms and conditions on 24.01.2008. OP has not formed any layout and has not come forward to receive the balance consideration and execute the sale deeds. The complainants are ready to pay the balance consideration and get the sale deeds registered.
10. The main defence of the OP is that he was unable to form the layout and allot the sites for the reason that the previous Government in order to approve the Master Plan banned the land conversion and layout development from July-2008 and now the said land lock was unlocked by approving the Master Plan. OP had applied for the conversion and approval of the layout, completion of the project is very much on and it shall be completed within a period of 6 months. OP has not produced any materials in support of this contention. The complaints cannot be made to wait indefinitely till the OP gets conversion of the lands and approval of the layout. When OP was not able to form the layout and allot the sites, it would have been fair on its part in refunding the amount received as advance sale consideration. The act of OP neither forming the layout and allotting the sites nor refunding the amount received towards advance sale consideration amounts to deficiency in service on its part.
11. There is no merit in the contention that these complainants are not ‘Consumer’ as defined under the Act. The complainants have paid initial consideration while booking the sites and they have agreed to pay the balance at the time of obtaining the sale deeds. The amounts paid include service charges of the Op informing the layout as such the complainants are ‘Consumer’ having engaged the services of the Op for consideration by paying the initial sale consideration.
12. The Managing Partner has executed deed agreements and issued the receipts, other partners are not necessary parties to the complaint. When once the OP has accepted the initial sale consideration assuring to allot the sites, till the sites are allotted and registered, recurring cause of action arises to file the complaints. Hence it cannot be said that the complaints are barred by limitation. The complainants are entitled for refund of the amount paid towards initial sale consideration along with interest at 18% p.a. by way of compensation from the date of respective payments, till the date of realization along with litigation cost of Rs.3,000/- in each case. The compensation and interest both cannot be allowed, interest at 18% p.a. is awarded by way of compensation. Accordingly we proceed to pass the following:
O R D E R
Both these complaints allowed in part.
In both these complaints, OP is directed to refund an amount of Rs.2,88,000/- with interest at 18% p.a. from the respective date of payments till the date of realization and pay litigation cost of Rs.3,000/- to these complainants.
This order is to be complied within four weeks from the date of this order.
Send the copy of this order to both the parties free of cost.
This original order shall be kept in the file of the complaint No.1370/2011 and a copy of it shall be placed in other complaint.
(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 31st day of MAY-2012.)
MEMBER PRESIDENT
Cs.
