BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 08^TH DAY OF FEBRUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. To come and execute and register the sale deed in favour of the complainant by in a fully developed layout and put her in possession of the property.
2. Or in the alternative, direct the OP to return a sum of Rs.7,70,590/- with interest at 18% p.a., from the date of filing the complaint to till the date of realization of the same.
3. OP is directed to pay Rs.5,00,000/- as damages to the complainant for causing stress, mental agony, pain and sufferings suffered by the complainant due to such hostile attitude of the OP.
4. Award costs and litigation expenses.
5. Grant such other reliefs.

2. The case set up by the complainant in brief is as under:-

The OP is the promoters and developers of residential layouts projects in the name and style Sancity Kaveri, situated at Mallinathapura Village, Kempanahalli Village, Bolanahalli Village, of Billekere Hobli, Hunsur Taluk, Mysore District. The complainant become the member of the said project floated and opted to purchase two adjacent sites bearing Nos. 232G and 233G each measuring 30X40 feet, formed in schedule property. The complainant has booked one site on 15.08.2015 by paying Rs.10,000/- through cheque and another site on 22.09.2015 was booked by paying Rs.5,000/- through cheque. After receiving the payments, the OP has issued booking acknowledgement receipts respectively for both sites.

3.       In furtherance of the said booking on 10.10.2015 complainant has paid Rs.95,000/- through cheque with respect to site No.232G and entered into MOU on the same day with respect to site No.232G.  The OP has received a sum of Rs.90,000/- through cheque with respect to site No.233G and MOU was entered between the parties on 04.12.2015.  The OPs have acknowledged the receipt of the part consideration amount of Rs.1,00,000/- each in respect of both sites from the complainant.  As per the agreed terms the complainant was supposed to pay Rs.3,18,800/- in 53 EMIs for each sites. Subsequently the OPs have insisted Rs.1,08,000/- for amenities charges for each site and the complainant has paid the same and also paid the entire EMIs for both the sites without any dues towards amenities and also towards registration charges.  The complainant has paid the entire sale consideration as stipulated in the MOU on 10.10.2015 and till now she has paid a sum of Rs.5,26,800/- each towards the sale consideration amount payable in respect of the two sites No.232G and 233G, including charges towards registration and also towards GST.  The complainant has restricted her claim in respect of 232G with a liberty to file another complaint in respect of site No.233G.

4.       Inspite of receipt of entire sale consideration amount the OPs neither formed any layout nor delivered the possession of the site to the complainant. They have illegally misused the consideration amount paid by the complainant and deliberately and intentionally failed to discharge their legally bounded responsibility towards honoring the contractual obligations. They have cheated the complainant deliberately and intentionally after receiving the entire sale consideration.

5.       The complainant has sent a demand notice dated 15.03.2023 to the OP and it was duly served on the OPs. Inspite of receipt of the notice the OPs neither complied the demand nor issued any reply and thereby they have committed deficiency of service. Hence the complainant has filed this complaint. 

6.       In response to the notice, OPs appears and files version. The OPs have admitted all the allegations made in the complaint relating to the membership of the complainant and the sale consideration amount paid by her and also the MOU entered between them.

7.       It is the specific contention taken by the OP that he was supposed to register the sale deed in favour of the complainant within two years from the date of execution of the said MOU.  Even though he has applied for conversion of land before concerned government authorities in November 2016 the conversion order was passed by the authorities in 2018. In view of the demonetization in the month of November 2016 the whole nation suffered heavily in terms of finance and the OP has also suffered finance problem due to sudden changes in monitory policies.  It even halted his various project developments.

8.       After obtaining the approvals from the concerned government authorities as per the new law of the government OP was compelled to register this project under RERA and was then permitted to register the plot to his customers. As per the hike in the charges for registration of plot as per the government guidelines which cost around Rs.1,08,000/- the executives of the OP called the complainant for payment and the complainant and paid the amount. In compliance of the same this OP was not able to get register the schedule A and B sites to the complainant as per the MOU.  This OP has also offered the complainant an exchange site in another project which was ready for registration. The complainant not only disagreed to the same but even filed this petition before this commission to exploit the helplessness situation of the OP at that time.

9.       It is further case of the OP that he is ready to provide alternative site to the complainant for registration towards the executed MOU with the consent of the complainant provided she pays the deficit amount towards the existing price of the alternative site.  This OP is ready to get the plot register within six months from the date of consent from the complainant. Due to outbreak of the covid-19 this OP is not in a situation to refund the amount paid by the complainant since the economic condition of the OP is as bad as the economic condition of the nation.  Hence OP prayed for dismissal of the complaint.

10.     The complainant has filed his affidavit evidence and relies on 09 documents.  The OP authorized person filed his affidavit evidence and relied on two documents.

11.     Heard the arguments of both the parties. Perused the written arguments filed by the OP. 

12.     The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

13.   Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

14.    Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence, written arguments and documents.

15.     It is undisputed fact that the complainant become the member of the project floated as San City Kaveri and they opted to purchase the schedule property bearing site No. 232G measuring 30X40 feet for Rs.4,18,000/- and paid the entire sale consideration through cheques and entered into MOU as per Ex.P3.

16.     Complainant has paid Rs.3,18,000/- and Rs.1,08,000/- towards amenity charges and also towards registration charges in respect of schedule property as per Ex.P2, P3 and Ex.P5.  The complainant has paid the entire consideration amount.  After receipt of the full sale consideration, the OP has started ignoring the complainant and he has neither started to complete the project nor informed the progress of work to the complainant. 

17.     The OPs failed to respond to the complainant and the OPs were collecting excess amount from the complainant. The OPs till date have failed to update any status of the development of the layout and on one or the other pretext protracting to register the sites from the past eight years and demanding excess money from the complainant as against the MOU terms. Thus the complainant is entitled to get the sites register in her name. Hence she got issued legal notice as Ex.P6 and the same was served on the OPs.

18.     On the other hand, the contention taken by the OPs that he was unable to complete the project and to register the sale deed in favour of the complainant as agreed by him within two years from the date of execution of MOU since there was a delay in obtaining the conversion order and also he has suffered heavily in terms of finance due to demonetization and as per the new law he was compel to register the project under the RERA.  In compliance of the same he was not able to get the plot registered in the name of the complainant as per the MOU. Even now he is ready to provide alternative site to the complainant within six months after obtaining the consent of the complainant.  If the complainant is ready to pay the deficit amount towards the existing price of the alternative site, but the complainant was not agreed to get the alternative site proposed by the OPs.

19.     When the complainant has paid the entire amount during 2015 and has waited till 2023 as per the MOU the OP has neither started the project nor got registered the schedule plots in the name of the complainant.  He was not available for the complainant when the complainant has made several attempts to contact the OP. The OP would have informed the complainant about his problems and requested the complainant for granting time to complete the project. Instead of informing the complainant the OP made himself not available to the complainant. In view of this the complainant has to approach this Commission for registration of the site from the OP.

20.     The complainant has prayed to direct the OP to come and execute and register the sale deed in her favour by allotting a site in a fully developed layout and put her in possession of the property. The OP has taken the contention that they are ready to allot alternative site in favour of the complainant within six months from the date of consent given by the complainant provided she pays the deficit amount towards the existing price of the alternative site. The OP further taken the contention that due to the outbreak of covid-19 they are not in a position to refund the amount since the economic condition of the OP is very bad.  If the complainant wants an alternative site in a fully developed layout she has to pay the deficit amount towards the existing price of the alternative site as per the condition imposed by the OP. if the complainant is not willing to pay the deficit amount towards the existing price of the alternative site she is only entitle for refund of the amount by the OP with interest.

21.     It is pertinent to note here that it is the duty of the OP to get all the approvals before calling for the public to purchase the site instead of that the OP has collected the money from the proposed purchasers and he has not started the project by taking untenable reasons.  When the OP has not completed the project and get the schedule plots registered in the name of the complainant after obtaining entire sale consideration amount, amounts to deficiency of service and negligence and unfair trade practice. The OP cannot insist the complainant to pay the deficit amount in respect of the alternative site towards the existing price of the site.  When the complainant has booked the site in the year 2015 itself and paid the entire sale consideration amount within 2015. Hence it is the duty of the OP to allot the alternative site in the fully developed layout and put the complainant in possession of the site by executing the proper conveyance deed in favour of the complainant.  If the OP is not ready to execute the registered sale deed in favour of the complainant after allotting an alternative site in the fully developed layout he is liable to refund the amount of Rs.7,70,590/- in favour of the complainant with interest at the rate of 12% p.a., from the date of filing the complaint till realization. Hence the complainant is entitled for the relief.  Therefore, we answer point No.1 in affirmative and point No.2 partly in affirmative.

22.     Point No.3:- In view of the discussion referred above the complaint is liable to be allowed in part.  This Commission may direct the OPs to allot and register the alternative site in a fully developed layout or otherwise the complainant is only entitle for refund of the amount paid to the OPs Rs.7,70,590/- with interest at 12% p.a., from the date of complaint till realization.   OP is further liable to pay Rs.1,00,000/- towards compensation with litigation expenses of Rs.10,000/- to the complainant. Hence we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to allot and register the alternative site in a fully developed layout and put the complainant in possession of the site within 90 days from the date of this order or otherwise OPs are directed to refund of the amount of Rs.7,70,590/- with interest at 12% p.a., from the date of complaint till realization.
3. OP is further directed to pay Rs.1,00,000/- towards compensation along with litigation cost of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 90 days from this date, failing which the OP shall pay interest at 14% p.a. after expiry of 90 days on Rs.7,70,590/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 08^TH day of FEBRUARY, 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;