IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 406/09 DATED 21.12.2009<br /> ORDER<br /> <br /> Complainant Sri. Sunil Menda S/o Mahesh Menda # 464, 80 feet Road, Siddhartha layout, Mysore.<br /> <br /> (By Sri. B.P.K. Advocate)<br /> <br /> Vs. <br /> Opposite Party M/s Sky Top Builders Private Ltd., # 2871/1, New No.D-5/1, 6th cross, Adipampa Road, V.V. Mohalla, Mysore-570002.<br /> ( By Sri. C.A.G. Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 02.11.2009<br /> Date of appearance of O.P. : 17.11.2009<br /> Date of order : 21.12.2009<br /> Duration of Proceeding : 1 Month 4 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite party, seeking a direction to execute Registered Sale Deed in favour of the complainant and in the alternative refund the advance of Rs.1,80,000/- with interest at the rate of 21% and so also compensation of Rs.25,000/- towards mental agony and for inconvenience caused with cost of the proceedings.<br /> <br /> 2. In the complaint it is alleged that, the opposite party is a builder. The opposite party offered to allot a site measuring 30 X 40 feet in the layout to be formed and executed an agreement dated 18.09.2006. The opposite party received advance of Rs.1,80,000/-, on the date of the agreement. Remaining amount was to be paid at the time of Registration of the Sale Deed. As per the agreement, opposite party did not form layout and execute Sale Deed in favour of the complainant, in spite of lapse of more than 3 years. The opposite party enriched itself, cheated the complainant and is enjoying the hard earned money of the complainant. The opposite party has not complied with the request and the legal notice of the complainant. Hence, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version admitted the agreement between the parties. However, it is contended that, this Forum has no jurisdiction to decide the complaint. Also it is contended that, dispute is of the nature of the Civil and the complainant has to approach civil court. It is stated that, MUDA is postponing the meeting to consider request of the opposite party, for permission and approval of the plan. The opposite party is ready to execute Sale Deed in favour of the complainant, immediately after the permission accorded by the MUDA. The opposite party is not at all liable to refund the amount with interest. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleging in the complaint, complainant has filed his affidavit and produced certain documents. On the other hand, for the opposite party, one B.L. Nagendra Prasad, Managing Director has filed his affidavit and produced certain documents. For the complainant written arguments are filed. Also, we have heard the learned advocate for the complainant as well as of the opposite party and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 7. Point no. 1:- The agreement between the parties including the fact that, the complainant has paid to advance consideration of Rs.1,18,000/-, is admitted by the opposite party.<br /> <br /> 8. The opposite party has contended that, though it is ready and willing to execute the Sale Deed in favour of the complainant as per the agreement, the MUDA has to accord permission and approve the plan, which is being postponed.<br /> <br /> 9. Copy of the agreement between the parties is on record. The third condition is that, the transaction shall be completed within 24 months from the date of the agreement. The agreement is dated 18.09.2006. There is no dispute that, 24 months have been lapsed long back. 8th condition of the agreement is that, in case if conversion is not completed for reasons beyond the control of the opposite party, it will refund the amount to the complainant. Even according to the opposite party, admittedly it has not yet got the permission and plan approved from the MUDA, whatever may be the reason. Hence, as agreed, the opposite party is bound to refund the amount to the complainant. When there is specific agreement between the parties, the opposite party cannot escape from it’s liability alleging that, MUDA has not approved the plan etc.,.<br /> <br /> 10. The complainant has sought a direction to opposite party to execute Registered Sale Deed, as per the agreement. From the material on record, MUDA has not yet accorded permission and approved the plan. In the absence of the same, opposite party cannot execute Sale Deed. Hence, the said relief cannot be granted to the complainant.<br /> <br /> 11. Under the circumstances, the alternative relief for refund of the advance has to be considered. Apart from the legal position, the opposite party itself has agreed to refund the amount as noted above in the agreement. For the complainant the relyings reported in I (2002) CPJ 136, II (2009) CPJ 152 and II (2009) CPJ 156 are relied upon.<br /> <br /> 12. We found no substance in the contention that, this Forum has no jurisdiction and that the complainant shall have to approach the Civil Court.<br /> <br /> 13. The facts and the material on record establish deficiency in service on the part of the opposite party and accordingly, our finding on the point is partly in affirmative.<br /> <br /> 14. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> <br /> ORDER <br /> 1. The complaint is partly allowed.<br /> 2. The opposite party is hereby directed to refund 1,80,000/- with interest at the rate of 18% p.a. from 18.09.2006, till realization, to the complainant within 60 days from the date of the order.<br /> 3. Further, opposite party shall pay a sum of Rs.2,000/- cost of the proceedings to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 21st December 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />