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

DATED 28^th DAY OF FEBRUARY 2022

CONSUMER COMPLAINT No.1483/2013

ORDER

SRI K.S.BILAGI, PRESIDENT:

1. This complaint has been filed under section 12 of C.P.Act , 1986 (Herein referred “Act”) for following reliefs.

a) Direct the OP to pay an amount of Rs.2,64,000/- along with 24% P.A. interest from the date of making payments till realization.

b) Direct the OP to pay the complainant Rs.1,00,000/- towards compensation towards the mental and physical agony.

c) Direct the OP to pay Rs.10,000/- as litigation charges.

d) And to pass such other order or direction as deems fit under the circumstances of the case.

2. The case of complainant in brief is as under.

The complainant entered into the sale agreement in respect of the plot bearing No.204 measuring 2400 Sq. ft. for consideration of Rs.7,68,000/- with OP and paid earnest money of Rs.2,64,000/- through cheque. But OP neither developed the plot nor ready to refund the amount. Therefore, the complainant called upon the OP by legal notice dt.15.07.2013 to refund the earnest money with interest and compensation. But, the OP fails to comply the  requestof the complainant which amounts to deficiency of service.

3. After receipt of notice, OP appears and files version. OP is the partner of M/s AIPRO partnership firm, which consists of 1. Sri JoythulaVenkateswaraRao, 2. Sri JoythulaSaivara Prasad Rao, 3. Sri DevavrapuSrinivasaRao, 4.Sri Ravi Ankneedu Prasad Rao. The complaint is bad for non-joinder of these parties.

4. He admits that OP executed agreement of sale in favour of the complainant dt.17.09.2007 in respect of site no.204, but complainant fails to pay balance amount of Rs.4,68,000/- within 30 days from the date of DTCP approval. There is no deficiency of service on the part of OP. The complainant has paid Rs.2,40,000/- being the part of the value of the site. The OP requests to dismiss the complaint.

5. The complainant files affidavit evidence and relies on documents. The OP has filed affidavit evidence of Adishekara Reddy, who relies on certain documents.

6. No arguments is advanced by both sides. We perused the records.

7. The following points arise for our consideration.

1) Whether the complainant who is deficiency of service on the part of  OP?

2) Whether complainant is entitled to reliefs mentioned in the complaint?

3) What order?

    8. Our answer to the above points are as under

Point No.1 :Affirmative.

Point No.2 :  Affirmative in part.

        Point No.3:  Per final order.

                            REASONS

9. Point No.1 & 2: This complaint is came to be filed against OP M/s AIPRO county, represented by its managing partner Mr.Adishekar Reddy. According to the OP there are other four partners  1. Sri JoythulaVenkateswaraRao, 2. Sri JoythulaSaivara Prasad Rao, 3. Sri DevavrapuSrinivasaRao, 4.Sri Ravi Ankneedu Prasad Rao and complaint is bad for non-joinder of these partners.

10.   The complainant filed application Under order I Rule 10 of CPC on 07.02.2014, which came to be served on proposed Ops through paper publication in UdayavaniKannda daily dt.23.06.2014. The proposed Ops are placed exparte, but IA-1 under order I Rule 10(2) was tillpending  on04.01.2022. IA  under order I Rule 10(2)  came to  allowed on 04.01.2022, but complainant fails to amend the complaint.

11.   The OP has produced documents about reconstitute of firm  Adishekara Reddy who is representing OPs is one of the party reconstituted partner deed dt.25.03.2007 by adding five persons into partnership  firm. It is true that there was arbitration proceedings between OP Sri JoythulaVenkateswaraRao and others, but details of arbitration proceedings  are not made known.  It is relevant to note that the OP no where contends that other so called five partners are active partners. It is not the case of the OP that the complainant paid Rs.2,64,000/- to all the partners of OP-1. When so called other partners are recipient of the amount of Rs.2,64,000/-, these five persons are not necessary parties.

12.   It is specific evidence of complainant that he has paid consideration amount of Rs.2,64,000/- to OP-1 on 25.06.2007 and Rekha, Authorised signatory of OP received the same.  According to OP complainant paid Rs.2,40,000/- against sale consideration of Rs.7,08,000/- and complainant fails to pay balance Rs.4,68,000/-. When the complainant has produced receipt for having paid Rs.2,64,000/- but there is no  contention of the OP that the complainant has paid only Rs.2,64,000/- despite request for balance payment.  It is not the case of complainant that complainant fails to pay balance amount within 30 days of DTCP approval. The OP has not obtained approval by DTCP.

13.   As per agreement of sale dt.17.07.2007 the complainant being the purchaser shall pay Rs.5,04,000/- within one month from the date of approval and sale deed shall be executed  receipt of full consideration amount. The OP has not produced any document to show that it has obtained approval of the concerned authority. The clause-13 of the  agreement of sale clearly indicates that if negotiation  of the land has not been approved by DTCPinitial amount will be refunded with interest as per existing bank rate of interest. The burden lies on OP that it has obtained approval from DTCP. There is no evidence to show that OP has obtained approval of DTCP in respect of the land.  When the OP fails to prove the approval of DTCP,  OP is liable to refund Rs.2,64,000/- with prevailing bank rate of interest. Despite  legal notice dt.15.07.2013, OP fails to refund Rs.2,64,000/- even at last at bank rate of interest . This act of the OP amounts to deficiency of service.

14. The complainant claims  refund of Rs.2,64,000/- with interest at 24% PA and compensation of Rs.1,00,000/-. Even though agreement of sale  indicates that payment of prevailing bank rate of interest on initial receipt of the amount to the complainant. Therefore, claim at 24% P.A. is exorbitant. The payment is made on 25.06.2007 and this complaint came to be filed on 13.08.2013. Therefore, the complainant is entitled to interest at 8% p.a. on Rs.2,64,000/- from 25.06.2007 till realization. This interest is awarded as compensation.

15.   The complainant engaged service of advocate. Therefore cost of litigation is quantified Rs.10,000/- when we award 8% p.a. on compensation, as the complainant is not entitled for additional amount of compensation. In view of discussion, the OP is liable to refund Rs.2,64,000/- with interest  at 8% PA from 25.06.2007 till realization as compensation and Rs.10,000/- towards cost of litigation. The complaint requires to be allowed in part. Accordingly, we answer the point No. 1 & 2 in the affirmative .

16. Point No.3:- In the result, we pass the following order :

ORDER

1. Complaint is allowed in part.
2. OP shall refund Rs.2,64,000/- with interest at 8% PA as compensation from 25.06.2007 till realization and Rs.10,000/- as cost of litigation to the complainant.
3. OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 10% PA if expiry of 60 days on Rs.2,64,000/- till realization.
4. Directing both parties to bear their own costs.
5. Furnish the copy of the order both parties.
6. Return the spare pleadings and documents to parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 28^th day of February, 2022).

(RenukadeviDeshpande)                        (K.S.Bilagi)

    MEMBER                                                   PRESIDENT

Documents produced by the complainant are as follows:

Documents produced by the Opposite party are as follows:

(Renukadevi Deshpande)                         (K.S.Bilagi)

    MEMBER                                                   PRESIDENT