BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 31^st day of July 2015        

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

1. Complaint No.: 93/2015 
2. Complaint No.: 94/2015
3. Complaint No.: 95/2015
4. Complaint No.: 96/2015
5. Complaint No.: 97/2015
6. Complaint No.: 106/2015
7. Complaint No.: 107/2015
8. Complaint No.: 108/2015
9. Complaint No.: 109/2015
10. Complaint No.: 110/2015
11. Complaint No.: 111/2015
12. Complaint No.: 112/2015
13. Complaint No.: 113/2015
14. Complaint No.: 114/2015
15. Complaint No.: 115/2015
16. Complaint No.: 116/2015
17. Complaint No.: 117/2015
18. Complaint No.: 118/2015
19. Complaint No.: 119/2015

Complainant/s:

1. Nandakumar S/o.Ramachandra Channareddy, Age: major, Occ: Private Service, R/o. At: Plot No.277, 6^th Cross, Sahadev Nagar, Opp.MCL Factory, Hubli.
2. Channappa S/o.Shivappa Majigoudar, Age: major, Occ: Private Service, R/o. At: R.S.Channareddy, Plot No.277, 6^th Cross, Sahadev Nagar, Opp.MCL Factory, Hubli.

In CC/93/2015

Sanjay S/o. Danappa Kokkalaki, Age: major, Occ: Private Service, R/o. House No.150, Sahadev Nagar, 3^rd Cross, Old Hubli.

In CC/94/2015

Shiddu S/o. Ishwarappa Shisuvinahalli, Age: major, Occ: Private Service, R/o. No.325, 8^th Cross, Opp.MCL, Sahadev Nagar, 3^rd Cross, Old Hubli-24.

In CC/95/2015

Satish S/o. Ishwarappa Shisuvinahalli, Age: major, Occ: Private Service, R/o. No.325, 8^th Cross, Opp.MCL, Sahadev Nagar, 3^rd Cross, Old Hubli-24.

In CC/96/2015

Bharati W/o.Sanjay Kokkalaki, Age: major, Occ: Household, R/o. House No.150, Sahadev Nagar, 3^rd Cross, Old Hubli.

In CC/97/2015

Chetan S/o. Mallikarjun Shirol, Age: major, Occ: Private Service, R/o. Chavadi Galli, Post: Rabkavi, Tq.Jamakhandi, Dist.Bagalkot

In CC/106/2015

Sanjay S/o. Danappa Kokkalaki, Age: major, Occ: Private Service, R/o. House No.150, Sahadev Nagar, 3^rd Cross, Old Hubli.

In CC/107/2015

Chetan S/o. Mallikarjun Shirol, Age: major, Occ: Private Service, R/o. Chavadi Galli, Post: Rabkavi, Tq.Jamakhandi, Dist.Bagalkot

In CC/108/2015

Shivanagouda S/o. Magadigouda Hiregouder, Age: major, Occ: Private Service, R/o. At: Post: Shalavadi, Tq.Navalgund, Dist.Dharwad.

In CC/109/2015

Jayashree W/o.Ramesh Pampanavar, Age: major, Occ: Household, R/o. Plot No.880, Bilur Galli, Tq.Bailhongal, Dist.Belgaum.

In CC/110/2015

Jayashree W/o.Ramesh Pampanavar, Age: major, Occ: Household, R/o. Plot No.880, Bilur Galli, Tq.Bailhongal, Dist.Belgaum.

In CC/111/2015

Anand S/o. Danappa Kokkalaki, Age: major, Occ: Private Service, R/o. C/O.M.D.Kokkalaki, Near Ganesh Temple, Rabkavi, Tq.Jamakhandi, Dist.Bagalkot

In CC/112/2015

Shrikant S/o. Guruputrappa Umadi, Age: major, Occ: Private Service, R/o. I.S.Main Road, P.T.Merchant, Rabkavi, Tq. Jamakhandi, Dist.Bagalkot

In CC/113/2015

K.S.Magadigouda s/o.Shivappa Magadigoudar, Age: major, Occ: Private Service, R/o. H.No.121, Sahadev Nagar, Old Hubli-24.

In CC/114/2015

Sanjay S/o. Danappa Kokkalaki, Age: major, Occ: Private Service, R/o. House No.150, Sahadev Nagar, 3^rd Cross, Old Hubli.

In CC/115/2015

Prakash S/o. Basavaraj Jawari, Age: major, Occ: Private Service, R/o. Muttur Galli, Post: Rabkavi, Tq. Jamakhandi, Dist.Bagalkot

In CC/116/2015

Shankargouda S/o. Virupakshgouda Hiregoudar, Age: major, Occ: Private Service, R/o. Kdigar Oni, Tq.Shirahatti, Dist. Gadag.

In CC/117/2015

Vinod B.Kokkalaki s/o.Balachandra N.Kokkalaki, Age: 32 years, At: Post: Rabkavi, Tq. Jamakhandi, Dist.Bagalkot

In CC/118/2015

Vinod B.Kokkalaki s/o.Balachandra N.Kokkalaki, Age: 32 years, At: Post: Rabkavi, Tq. Jamakhandi, Dist.Bagalkot

In CC/119/2015

 (By Sri.M.Y.Katagi, Adv.)

v/s

Respondent/s:

1. M/s.Yash Developers, Township Promoters & Developers, Virupax Krupa, II Floor, Opp. KMC Main GATE, Vidyanagar, Hubli – 21.

2. Mitulal s/o.late.J.Bhawarilal, The Proprietor, M/s.Yash Developers, Township Promoters & Developers, Virupax Krupa, II Floor, Opp. KMC Main GATE, Vidyanagar, Hubli – 21.

(By Sri.N.S.Bhat, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     Since the complainants have filed the complaints against the same respondents claiming the same reliefs, for the purpose of passing common order the above 2 cases have been clubbed together and disposed of in a common order.

2.     The complainants have filed these complaints claiming for a direction to the respondents to handover the possession of NA developed plots to the complainant along with necessary deed of conveyance as per the agreement of sale, in alternative issue direction to refund the amount in total paid by the complainants along with compensation of Rs.50,000/- towards mental agony & to pay Rs.10,000/- towards cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

3.     The case of the complainants in brief is that, the complainants are residing in the respective address as shown in the cause title, in order to have their own plots the complainant were searching for searching for suitable plots. Accordingly the respondent.2 being township promoters & developers in the name and style “M/s.Yesh Developers” on behalf of R1 has attracted the complainants through telephonic calls, public advertisement in the media both of electronic & print media  for purchase of residential site in the layout formed by the respondents. The respondent further invited the attention of the complainants with regard to the proposed layout in the name Green City to be formed in Sy.No.342/1 and 342/2 situated at Bairidevarakoppa, Hubli Tq. Accordingly as per the proposed plan shown by the respondents which was being near to the Hubli Dharwad road, the complainants gave their applications and booked the plots by paying advance and other installments as per the details shown below.

4.     The complainants have paid the advance amount by way of cheque, cash under proper receipts as per the details shown in the above table. The respondents have reports the same & confirmed the contract by executing respective agreements undertaking to obtain NA & to develop plots & to handover the same in the plot at layout Yesh Developers Green City in Sy.No.342/1 & 342/2 of Bairidevarkoppa with boundaries as scheduled in the agreement. Vide letter 08.05.2010 the respondent.2 informed the complainants that he has taken possession of the land for the project Green City is taken over by way of registered sale deed. Further the respondent under vide letter 24.07.2011 sought for extension of time and requested the complainants to bear with them. Alternatively the respondents given option to the complainants to choose alternative sites belongs to the respondent.1 at Hubli, Bangalore, Mysore & Mundaragi. When the complainants have sought for alternative site the respondent.2 assured the same will be allotted in Block 778 of Kusugal of Hubli Tq. After continued negotiation & deliberation the respondent agreed to provide site in the alternative plots for the same cost as agreed earlier. Accordingly respondent had executed supplementary agreements with the complainants and have agreed to sell tentative plots in the layout called Yesh Developers Classic Develops III Phase of Block # 778 Kusugal village and to allot the plots as per the supplementary agreement shown in the table. In the supplementary agreement the respondent had undertaken to complete the developmental works in the supplementary plot on or before 31.12.2012. However to the utter dismay of the complainants even till this day respondents have not formed layout either in Yesh Developers Green City or Yesh Developers Classic Layout III Phase. Since the complainants have invested in the year 2009 and even after lapse of 5 years the respondents have not complied and hand over the possession though the complainants have repeatedly approached, persuaded  and entered into supplementary agreements with regard to alternative plots. As such the complainants have approached the police for assistance and direct the respondents to execute the sale deed. During that time the respondent by letter 13.05.2014 given assurance that plots will be allotted. Even then the respondent did not complied. Hence, complainants got issued legal notice to the respondents calling upon to execute the conveyance deed in favour of the complainants. In reply to the notice the respondents undertakes to execute the sale deed or otherwise alternatively given proposal for refund of the said amount with interest. The complainants with an aspiration to have shelter for them have invested the amount but at the instance of respondents in non compliance the price index of the land has been increased as such refund of the amount paid will not acceptable as it will cause heavy loss to the complainants unless there be a huge compensation and cost. The respondent has made it habit of intelligently to collect the amount from the innocent public and misutilize the funds for his gainful profits by showing rosy pictures of plots with fabulous advertisements to the innocent public which amounts to unfair trade practice and deficiency in service as such the complainants have filed the instant complaints praying for the relief as sought.

5.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the complaints as brought is not maintainable either on law or on facts & barred by the limitation as such the complaints oust the jurisdiction of this Forum for adjudication of the same. While the respondents admit they are the developers & promoters under name & style M/s. Yesh Developers. While it is denied on a rosy assurance and publications the respondents collected money from innocent public. Further the respondent denied telephonic calls and approaches of respondent to complainants to invest with the respondents. Among such other admissions and denials the respondents admits undertaken to form sites in the respective Sy.Nos.342/1 & 342/2 of Bairidevarkoppa Village & acceptance of advance money under receipts by the complainants and also execution of agreements and supplementary agreements and undertaken to deliver the plots by extending the time and to allot the same. Further taken contention that at the instance of the government and non feasibility, the respondents could not able to get NA for the agreed Sy.Nos. from the government as well as by HDMC, accordingly respondent could not able to form the plots as undertaken and handed over to the complainants by executing the sale deed. In order to fulfil the aspirations of the complainants and to execute sale deed in favour of complainants the respondents made all possible efforts. But at the instance of government order could not able to get the same due to technical & legal problems as the government has declared the said two lands to an extent of 1 acre for regional park and further initiated proceedings U/s.79A and 79B of Karnataka Land Reforms Act which was not expected by the respondents. The non performance of the part of agreement is due to technical and legal problems and not with deliberate intention. The respondent has not committed any wrong. As such there does not arise question of committing deficiency in service or playing unfair trade practice as alleged & the respondents are ready to refund the money paid to them with applicable bank interest at shorter time. The situation arisen is unwarranted. Finally the respondent contended that this Forum has no jurisdiction to adjudicate the complaint in dispute. Only civil court has jurisdiction to adjudicate the same & also the reasons as it is barred by limitation,  prays for dismissal of the complaint with cost.

6.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit, relied on documents. The complainant apart from argument also relied on citations.  Heard. Perused the records.

Finding on points is as under.

1. Affirmative 
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

7.     On going through the pleadings, evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact that, the complainants have entered into agreement with the respondent to purchase plots and have executed the agreement and the same has been confirmed by the respondent by reporting the part payments.    

8.     Now the question to be determined is whether non executing the sale deed and handing over the possession of the plots as agreed by the respondent amounts to a deficiency in service, if so, for what relief the complainants are entitled.

9.      As per the pleadings, evidence and documentary evidence of receipts for payments and as per the clear admission made by the respondent with regard to the transaction under agreement and report of the amount towards the part payment under the agreement there is no dispute with regard to these facts.

10.   Further also there is no dispute with regard to the fact that as per the undertaking given by the respondent the respondent did not formed plots in the respective blocks as undertaken and developed the same and hand over the possession to the complainants as undertaken as per in the agreement by executing sale deed. Further admission of the respondent that he could not able to get NA and further respondent undertakes to refund the amount received is clearly shows that the respondent has committed deficiency in service and unfair trade practice and he bound to repay the amount with interest along with damages by way of compensation and cost.

11.   Even then respondent admits non performance of his part of performance & undertakes to repay the amount the respondent received from the complainants, the respondent taken contention that the complaint is not maintainable & barred by time limitation. In this regard the LC for complainant argued that the complainants have made repeated approaches to the respondent demanding to perform his part of performance and also they have executed repeated supplementary agreements as per the request of the respondent as such there is no bar of limitation & limitation continues till the respondents returns the amount, added to it the complainants have filed application to condone the delay if any and also relied on citations. C.A.7593/95 Mr.Evance B. Martin & another vs. Mrs. Mafalda Maria Teresa Rodrigues with regard to condonation of delay if any and also another case law FA 1215/14 Jalandhar Improvement Trust & others Vs. Munish Dev Sharma with regard to refund of amount when the developer failed to perform his part of performance.

12.   Wherein in the instant case the complainants have repeatedly approached the respondent and as the respondent went on  postponing the same on false assurances the present complaints are within the limitation and as the respondent after receiving the amount failed to perform his part of performance and failed to deliver the possession the respondent is liable to refund the amount and unless payment till the payment the cause of action will continue. Hence contention of respondent the complaints are not maintainable and barred by limitation is not sustainable & the respondent is liable to refund the amount he has received.

13.   Even in the pleadings respondent has admitted that he is a developer. Under those circumstances unless having possession of the NA land and development of the same the respondent being a developer ought not have received application from the public and have collected money from the public that too from innocent people who have dreams of owning their own dwelling residential plots at their old age by investing their hard earned money.

14.   By this it is evident that knowingly well aware of the fact that the respondent is not owning suitable NA land to form plots as per the requirements of the investors and  having utilized the money received by him for other purpose rather than investing the same for the purpose he has collected is a latent instant of systematic deprival of the innocent public. This attitude of the respondent should not be encouraged and respondent must be penalized.

15.   If it is the case of otherwise viz., after development of the plots if the respondent would have not able to complete the project for other reasons of at the instance of investors i.e. due to non payment of the subsequent installments as agreed or reclaiming the amount in the middle before completion of the project it could be acceptable. But wherein the instant case even from the inception i.e. prior to accepting the amount the respondent was not owning land. Even then on the bare hand he reports the payments from the applicants. Hence, the respondent is liable to refund the same at punitive rate of interest. That apart the complainants/ investors both in pleadings and in their evidence stated that the cost of land index at present in the said area that too in all other places have raisen in 3 to 4 told & if the respondent would have handed over the possession of the plots as undertaken by respondent in time the complainants would have occupied the same and would have lead their life. But as the price index has been raised at present they cannot buy alternative plots at this high index price in the present days and their dreams of owning their own plots have been broken as such the complainants have subjected to both mental agony as well as financial loss and are entitled for the substitute for the same by way of compensation and cost against the respondent. The complainants have established their case of deficiency in service & unfair trade practice against the respondents. Hence, complainants are entitled for the relief as claimed.

16.  In view of the above discussions we have arrived and proceed to held issue.1 in affirmative and 2 accordingly.

17.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

All the complaints are partly allowed with a direction to the respondents jointly and severally to refund the amount received from the each complainants in all the complaints as shown in the table with interest @12% P.A from the date of receipt of the consideration amount till realization along with Rs.5,000/- towards compensation and Rs.1,000/- towards the cost of the proceedings in each cases within 60 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @15% P.A. from thereon till realization. 

Original order be kept in CC -93/2015 & its copy in other connected cases.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^st day of July 2015)

(Smt.Vijayalaxmi.M)                         (Shri.B.H.Shreeharsha)

Member                                               President

Dist.Consumer Forum                        Dist.Consumer Forum

MSR