M/s Team Fortune, V/S Atul Saini - Consumer Court Case

Karnataka

Bangalore Urban

CC/2108/08

Atul Saini - Complainant(s)

Versus

M/s Team Fortune, - Opp.Party(s)

A Jayaprakash

22 Nov 2008

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/2108/08

Atul Saini						...........Appellant(s)
Vs.
M/s Team Fortune,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 26.09.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 22nd NOVEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2108/2008 COMPLAINANT Atul Saini, S/o. Sudarshan Kumar, Aged about 31 years, Residing at No. 15-C, Khukhrian Apartments, Sector 13, Rohini, New Delhi 110 085. Advocate (A. Jayaprakash) V/s. OPPOSITE PARTY M/s. Team Fortune, Office at No. 91, Level 2, Richmond Road, Bangalore 560 025. Represented by its Managing Partner Mohammed Ghouse Farooq. Advocate (V.P. Kulkarni) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to give possession of the site allotted, execute the sale deed after receiving the agreed amount and pay a compensation of Rs.10,00,000/- on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being lured away with the advertisement and propaganda issued by the OP, who claims to be the builders and developers of the layouts consisting of residential sites of various dimensions, thought of purchasing a plot measuring 40 X 60 feet in the project floated by the OP. OP having accepted the membership of the complainant agreed to sell a plot for Rs.4,80,000/-. Initially allotted plot No. 88, then it was renumbered as 184. An allotment letter dated 28.08.2003 was sent to the complainant. Though OP received the entire sale consideration of Rs.4,80,000/-, failed to execute the registered sale deed in favour of the complainant. The repeated requests and demands made by the complainant, went in futile. On insistence OP sent a letter dated 08.07.2008 refunding whatever the plot value that is paid by the complainant and cancelled the booking. The arbitrary act of the OP has caused both mental agony and financial loss to the complainant. Though OP has contended that they have addressed the letter on 07.06.2008 and 16.06.2008, those letters are not received by the complainant. When his repeated requests and demands, went in futile he even caused the legal notice on 30.07.2008. Again there was no response. Under such circumstances complainant felt the unfair trade practice and deficiency in service on the part of the OP. Hence he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. The land which was purchased by the OP for the formation of the said layout has been included in the green belt area after modification of the outline development plan by the Government. Hence OP was unable to register the plot as per the old rate. It gave offer to the complainant to purchase another site in a different project at the rate of Rs.800/- per sq. feet and addressed the letter on 07.06.2008 and 16.06.2008, there was no response. OP felt that complainant is not interested in purchase of the plot, that is why on 08.07.2008 they refunded whatever the amount that is paid by the complainant and it is encashed by the complainant without any protest. Under such circumstances now complainant cannot agitate this dispute. The contention of the complainant that he has not received the said letters is false. When once complainant has received whatever the amount that is paid by him due to cancellation of the said booking, he will not accrue any cause of action to file this fresh complaint. There is no deficiency in service on the part of the OP. The complaint is devoid of merits. Because of the intervention of the Government converting the said land into green belt area, OP is unable to form the said layout. Among these grounds, OP prayed for the dismissal of the complaint. 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 4. In view of the above said facts, the points now that arise 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 reliefs now claimed? Point No. 3 :- To what Order? 5. 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: 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 6. At the outset it is not at dispute that the complainant has booked a plot in the project floated by the OP and paid Rs.4,80,000/- by the end of July 2006. He was patiently waiting for the allotment and registration of the plot, but there were no developmental activities at all. His repeated requests and demands made to the OP to allot a site and register a site, went in futile. Though OP provisionally allotted him a plot in the month of August 2003, it was no registered. It is further contended by the complainant that to his utter shock and surprise OP unilaterally and arbitrarily cancelled his booking and refunded whatever amount that is paid after lapse of nearly 2 years. OP referred to some letters dated 07.06.2008, 16.06.2008, but they were not at all received by the complainant. Hence complainant felt the deficiency in service on the part of the OP. 7. As against this it is specifically contended by the OP that the land that is acquired by them for the formation of the said project was included in green belt area by the Government. Under such circumstances they are unable to form the said layout, that is why with all bonafides they refunded the amount that is paid without making any deduction. Of course prior to that they addressed letters to the complainant on 07.06.2008 and 16.06.2008 that they are prepared to allot a plot in the different project, but at the rate of Rs.800/- per sq. feet. As the complainant did not respond to their call well within a stipulated time, ultimately they are forced to cancel the allotment and then on 08.07.2008 they promptly refunded the said amount through a cheque which is encashed by the complainant without any protest. The correspondence made in that regard are produced. 8. When OP is aware of the fact that the land which they purchased for the formation of the said project or layout has been included in the green belt area, that is why they are unable to complete the said layout, it would have been more fair on the part of the OP to immediately refund whatever the cost they have received. When actually the said land was covered under the green belt area, in which year is not known. There appears to be some suppression of material fact by the OP. Here we find the deficiency in service. Though OP has refunded whatever the amount that is paid by the complainant through the cheque, but it is after lapse of 2 years. By retaining the said huge amount for two years without registering the site and putting the complainant in possession of the same OP must have accrued the wrongful gain to itself, thereby caused wrongful loss to the complainant, that too for no fault of his. 9. If the OP were to refund the said amount within a span of 2-3 months from the date of last payment that is July 2006 complainant would have invested the said huge amount in some other project and would have accrued a profit, but he is deprived of the same because of the carelessness and negligence of the OP. Of course complainant encashed the said cheque, but his contention is that he kept open his rights to reagitate. As already observed by us in the above said paras, OP having refunded the said amount after 2 years must have naturally caused monetary loss to the complainant. To that extent we feel that the complainant is entitled for certain relief. With these reasons we answer point nos.1 and 2 accordingly and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to pay a compensation of Rs.50,000/- and litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 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 22nd day of November 2008.) MEMBER MEMBER PRESIDENT p.n.g.

COMPLAINT FILED: 26.09.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 22nd NOVEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2108/2008 COMPLAINANT Atul Saini, S/o. Sudarshan Kumar, Aged about 31 years, Residing at No. 15-C, Khukhrian Apartments, Sector 13, Rohini, New Delhi 110 085. Advocate (A. Jayaprakash) V/s. OPPOSITE PARTY M/s. Team Fortune, Office at No. 91, Level 2, Richmond Road, Bangalore 560 025. Represented by its Managing Partner Mohammed Ghouse Farooq. Advocate (V.P. Kulkarni) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to give possession of the site allotted, execute the sale deed after receiving the agreed amount and pay a compensation of Rs.10,00,000/- on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being lured away with the advertisement and propaganda issued by the OP, who claims to be the builders and developers of the layouts consisting of residential sites of various dimensions, thought of purchasing a plot measuring 40 X 60 feet in the project floated by the OP. OP having accepted the membership of the complainant agreed to sell a plot for Rs.4,80,000/-. Initially allotted plot No. 88, then it was renumbered as 184. An allotment letter dated 28.08.2003 was sent to the complainant. Though OP received the entire sale consideration of Rs.4,80,000/-, failed to execute the registered sale deed in favour of the complainant. The repeated requests and demands made by the complainant, went in futile. On insistence OP sent a letter dated 08.07.2008 refunding whatever the plot value that is paid by the complainant and cancelled the booking. The arbitrary act of the OP has caused both mental agony and financial loss to the complainant. Though OP has contended that they have addressed the letter on 07.06.2008 and 16.06.2008, those letters are not received by the complainant. When his repeated requests and demands, went in futile he even caused the legal notice on 30.07.2008. Again there was no response. Under such circumstances complainant felt the unfair trade practice and deficiency in service on the part of the OP. Hence he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. The land which was purchased by the OP for the formation of the said layout has been included in the green belt area after modification of the outline development plan by the Government. Hence OP was unable to register the plot as per the old rate. It gave offer to the complainant to purchase another site in a different project at the rate of Rs.800/- per sq. feet and addressed the letter on 07.06.2008 and 16.06.2008, there was no response. OP felt that complainant is not interested in purchase of the plot, that is why on 08.07.2008 they refunded whatever the amount that is paid by the complainant and it is encashed by the complainant without any protest. Under such circumstances now complainant cannot agitate this dispute. The contention of the complainant that he has not received the said letters is false. When once complainant has received whatever the amount that is paid by him due to cancellation of the said booking, he will not accrue any cause of action to file this fresh complaint. There is no deficiency in service on the part of the OP. The complaint is devoid of merits. Because of the intervention of the Government converting the said land into green belt area, OP is unable to form the said layout. Among these grounds, OP prayed for the dismissal of the complaint. 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 4. In view of the above said facts, the points now that arise 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 reliefs now claimed? Point No. 3 :- To what Order? 5. 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: 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 6. At the outset it is not at dispute that the complainant has booked a plot in the project floated by the OP and paid Rs.4,80,000/- by the end of July 2006. He was patiently waiting for the allotment and registration of the plot, but there were no developmental activities at all. His repeated requests and demands made to the OP to allot a site and register a site, went in futile. Though OP provisionally allotted him a plot in the month of August 2003, it was no registered. It is further contended by the complainant that to his utter shock and surprise OP unilaterally and arbitrarily cancelled his booking and refunded whatever amount that is paid after lapse of nearly 2 years. OP referred to some letters dated 07.06.2008, 16.06.2008, but they were not at all received by the complainant. Hence complainant felt the deficiency in service on the part of the OP. 7. As against this it is specifically contended by the OP that the land that is acquired by them for the formation of the said project was included in green belt area by the Government. Under such circumstances they are unable to form the said layout, that is why with all bonafides they refunded the amount that is paid without making any deduction. Of course prior to that they addressed letters to the complainant on 07.06.2008 and 16.06.2008 that they are prepared to allot a plot in the different project, but at the rate of Rs.800/- per sq. feet. As the complainant did not respond to their call well within a stipulated time, ultimately they are forced to cancel the allotment and then on 08.07.2008 they promptly refunded the said amount through a cheque which is encashed by the complainant without any protest. The correspondence made in that regard are produced. 8. When OP is aware of the fact that the land which they purchased for the formation of the said project or layout has been included in the green belt area, that is why they are unable to complete the said layout, it would have been more fair on the part of the OP to immediately refund whatever the cost they have received. When actually the said land was covered under the green belt area, in which year is not known. There appears to be some suppression of material fact by the OP. Here we find the deficiency in service. Though OP has refunded whatever the amount that is paid by the complainant through the cheque, but it is after lapse of 2 years. By retaining the said huge amount for two years without registering the site and putting the complainant in possession of the same OP must have accrued the wrongful gain to itself, thereby caused wrongful loss to the complainant, that too for no fault of his. 9. If the OP were to refund the said amount within a span of 2-3 months from the date of last payment that is July 2006 complainant would have invested the said huge amount in some other project and would have accrued a profit, but he is deprived of the same because of the carelessness and negligence of the OP. Of course complainant encashed the said cheque, but his contention is that he kept open his rights to reagitate. As already observed by us in the above said paras, OP having refunded the said amount after 2 years must have naturally caused monetary loss to the complainant. To that extent we feel that the complainant is entitled for certain relief. With these reasons we answer point nos.1 and 2 accordingly and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to pay a compensation of Rs.50,000/- and litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 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 22nd day of November 2008.) MEMBER MEMBER PRESIDENT p.n.g.