CC No.768.2016

Filed on 30.05.2016

Disposed on.23.09.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 23^rd DAY OF SEPTEMBER 2017

CONSUMER COMPLAINT NO.768/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                             V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 30.05.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay an amount of Rs.2,34,000/- with interest at 8% and plus an amount of Rs.5,00,000/-(when the plot was booked, the market price was less) and now costing additional amount of Rs.5,00,000/-, to pay a sum of Rs.1,00,000/- towards mental agony and damages, to pay a sum of Rs.2,00,000/-for dereliction of duty, failure to register the schedule property/residential plot and other reliefs. 
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Opposite Party had entered into Memorandum of Understanding dt.20.01.2015, on the terms and conditions made therein for sale and purchase of the immovable residential plot, measuring to an extent of 1200 Sq.ft., to be formed out of Sy.Nos.244/P-2 Sy.No.244/P-4, both measuring to an extent of 3 Acres, situated at:Kaggalipura Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, in the name and style of TGS Vinayaka.  As per the terms of Memorandum of Understanding, the Complainant had agreed to purchase the “Residential Plot”, for a consideration of Rs.7,80,00/- payable in the following manner:-

1. 30% at the time of booking amounting to Rs.1,00,000/- for which the Complainant had paid by way of cheque bearing No.451371, Dt.10.12.2014, drawn on State Bank of Maharastra, Bangalore and for Rs.1,34,000/- by way of cheque No.451373, dt.29.12.2014, drawn on State Bank of India, Bangalore.

2. And remaining 70% after completion of the Layout formation obtaining all approvals and permissions from the jurisdictional Statutory Authority.

As per the Memorandum of Understanding, the Layout formation was supposed to be completed within 12 months from the date of the execution of Memorandum of Understanding with a grace period of 3 months.  And in the event of default by Opposite Party, the Complainant will be entitled for the refund of entire advance sale consideration paid with interest @ 8% p.a.  Pursuant to the said Memorandum of Understanding, there has not been any development or any progress in the formation of the layout and Opposite Party has failed to comply with the terms and conditions of the said Memorandum of Understanding by way of collecting the balance amount of 30% of sale consideration and handing over the vacant and peaceful possession of the demarked portion of the land to the Complainant herein.  Thereby, the Opposite Party has negligent and not performed their part of contract as per the terms and conditions stipulated in the said Memorandum of Understanding.  The Opposite Party marketing personals have made fancy remarks on the project proposed to be formed by Opposite Party i.e., TGS Vinayaka, and have made huge representations in the broachers and other marketing materials.  However, to the surprise of Complainant, the Opposite Party have written in the Memorandum of Understanding that, the earlier representation would not form any part of commitment between Complainant and Opposite Party.  And Opposite Party have specifically stated that all representations are superseded by virtue of the said Memorandum of Understanding.   In spite of repeated request and calls, the Opposite Party have been postponing the handing over the possession of the residential plot by giving one or other reasons with the malafide intention of having an unjust gain at the cost of Complainant.  The Complainant’s utter surprise and shock, when he visited the proposed Layout location, there has not been any development or any progress and the original land lords are still having possession and enjoying the same.   When enquired about the same with Opposite Party office, the response received to the Complainant is that the Complainant has to surrender the existing Memorandum of Understanding and enter into a fresh Memorandum of Understanding on the new terms and conditions and difference duration.  Thereby, the Opposite Party has seeking a further extension of twelve months with grace period.  At this stage, it creates a sense of insecurity to the Complainant towards Opposite Party commitment to comply with the said Memorandum of Understanding. Thereby the Opposite Party have breached the said Memorandum of Understanding and there has been a complete negligence and non-commitment, deficiency in service by Opposite Party causing huge financial loss and mental stress and agony to the Complainant.   As per the said Memorandum of Understanding, the Opposite Party has to handover the peaceful and vacant possession of residential plot duly approved within stipulated time, considering the grace period, as per the representations and promises made in the marketing materials and committed in the said Memorandum of Understanding.  But, the Opposite Party has not made any effort to perform their assurances and commitments within stipulated period.  The Complainant has sent a Legal Notice dt.08.03.2016, by way of RPAD and the said notice was duly served on Opposite Party.  In view of the said legal Notice, the Opposite Party has sent reply to the Legal Notice.  Since there is continuous default of service, dereliction of duty by the Opposite Party, without alternative way.  Hence, this complaint.

3. In response to the notice, the Opposite Party put their appearance through their counsel, but failed to file their version. 

4. The Complainant, Sri.Byrappa filed his affidavit by way of evidence and closed his side.   Heard Argument.

5.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):-  Affirmative

POINT (2):-  As per the final Order

REASONS

7. POINT NO.1:- It is the case of the Complainant that on 20.01.2015 the Opposite Party had entered into Memorandum of Understanding and as per terms of Memorandum of Understanding, the Complainant had agreed to purchase the “Residential Plot”, for valuable consideration of Rs.7,80,000/- to be formed out of Sy.Nos.244/P-2 Sy.No.244/P-4, i.e., TGS Vinayaka.  30% of the booking amounting to Rs.1,00,000/- for which the Complainant had paid by way of cheque  bearing No.451371, dt.10.12.2014 and for a sum of Rs.1,34,000/- by way of cheque cheque No.451373, dt.29.12.2014 and remaining 70% after completion of the Layout.   This fact is not been denied or disputed by the Opposite Party.  Further to substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and also produced the receipt bearing No.901 dt.10.12.2014 under receipt the Opposite Party has received a sum of Rs.1,00,000/- from the Complainant through by way of cheque.  Under receipt No.1406, the Opposite Party has received a sum of Rs.1,34,000/- towards purchase of plot measuring 30 X 40 feet in a project TGS Vinayaka.  Further he had produced the Memorandum of Understanding it is dt.20.01.2015, as per this Memorandum of Understanding, the Opposite Party had agreed to complete the formation of the layout within 12 months from the date of this Memorandum of Understanding.  This evidence of the Complainant has not been challenged by the Opposite Party.  Thereby to discard the evidence of the Complainant there is no contra evidence.  Hence, it is proper to accept the contention of the Complainant that the Complainant by entering into Memorandum of Understanding with Opposite Party on 20^th January of 2015 agreed to purchase plot measuring 30 X 40 Feet in TGS Vinayaka which was formed out of Sy.Nos.244/P-2 Sy.No.244/P-4 for a total consideration of Rs.7,80,000/- and out of total consideration the Complainant had paid a sum of Rs.2,34,000/- through cheque bearing No.451371 and 451373 under receipt Nos.901 & 1406.
8. It is further case of the Complainant, as per the Memorandum of Understanding, the Layout formation was supposed to be completed within 12 months from the date of the execution of Memorandum of Understanding with a grace period of 3 months.  And in the event of default by Opposite Party, the Complainant will be entitled for refund of entire advance sale consideration paid with interest @ 8% p.a.  Pursuant to the said Memorandum of Understanding, there has not been any development or any progress in the formation of the layout and Opposite Party has failed to comply with the terms and conditions of the said Memorandum of Understanding.  In spite of request and demand made by the Complainant, the Opposite Party failed to deliver the possession of the site.  For that reason, the Complainant issued Legal Notice.  Eventhough the Legal Notice was served on the Opposite Party, but the Opposite Party failed to comply the demand made in the Legal Notice.  Even this fact has not denied by the Opposite Party.  Further to substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and as stated earlier, the Complainant has produced the Memorandum of Understanding dt.20.01.2015.  As per the terms and conditions of the Memorandum of Understanding, the Complainant has to complete the TGS Vinayaka Project formed out of Sy.Nos.244/P-2 Sy.No.244/P-4 within 12 months from the date of the execution of Memorandum of Understanding with a grace period of 3 months.  As per the Memorandum of Understanding, the Opposite Party has to complete the project on or before 31^st March 2016, but the Opposite Party had failed to complete the project even after the lapse of said period.  When the Complainant visited the proposed site of the project, there is no any development work undertaken by the Opposite Party.  For that reason, the Complainant made several requests and demands, even by issuing legal notice.  Inspite of that the Opposite Party had failed to comply with the said legal notice.   On the other hand, the Opposite Party issued reply.   This evidence of the Complainant also remains unchallenged, thereby from this evidence it is very clear that the Opposite Party committed deficiency of service by failing to deliver the possession of the site as per Memorandum of Understanding.  Hence, the Complainant is entitled for refund of advance amount of Rs.2,34,000/- with 8% p.a. as per the terms of the Memorandum of Understanding from the date of receiving the advance amount.
9. Further the Opposite Party after receiving the huge amount failed to make complete project and deliver the vacant possession of the site in terms of the Memorandum of Understanding.  In spite of several requests, the Opposite Party utilize the huge amount for their development purpose.  This amounts to causing mental agony and also monitory loss to the Complainant, thereby the Complainant is entitled for compensation for causing mental agony.  Hence, this point is held in the Affirmative. 

10. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency of service by the Opposite Party.

The Opposite Party is directed to refund advance amount of Rs.2,34,000/- with interest at 8% p.a. from 09.12.2014, till the date of Order.

The Opposite Party is further directed to pay a sum of Rs.5,000/- as cost.

The Opposite Party is directed to pay the aforesaid amount within 45 days.  Failing which the aforesaid amount will carry interest at 18% from the date of order, till the date of payment. 

Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 23^rd day of September 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Byrappa, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Booking Form dt.07.12.2014
2. Receipts bearing No.2226, dt.10.12.2014 for Rs.1,00,000/- and receipt bearingNo.2830, dt.29.12.2014 for Rs.1,34,000/-.
3. Copy of the notarized Memorandum of Understanding dt.20.01.2015
4. The Legal Notice dt.08.03.2016,
5. Copy of the Postal Receipt
6. Copy of the Postal acknowledgement
7. Copy of the Reply Notice dt.17.03.2016
8. Copy of the Postal Cover dt.01.04.2016.

Witness examined on behalf of the Opposite Parties:

                             -NIL-

List of documents filed by the Opposite Party:

                                      -NIL-

       MEMBER                                                                      PRESIDENT