COMPLAINTS FILED ON:09.03.2011
DISPOSED ON:23.04.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
23rd DAY OF APRIL 2012
PRESENT:- SRI. B.S. REDDY PRESIDENT
SRI.A.MUNIYAPPA MEMBER
COMPLAINT Nos. 471, 472, 473, 474 & 475/2011
Complaintno.471/2011 Complainant | Manjula Bai W/o Late E.V.Narayana Rao, Aged about 51 years, No.12, 2nd Main, Sakkamma Garden, Basavanagudi, Bangalore-560 004. Adv:Sri.U.R.Nayak |
Complaintno.472/2011 Complainant | Jayanthi Prabhu W/o N.Umesh Prabhu, Aged about 62 years, No.556D, “Samriddhi”, Shanti Niketan Layout, Opp:Vysya Bank Colony, Arekere, Off:B.G.Road, Bangalore-560 076. Adv:Sri.U.R.Nayak |
Complaintno.473/2011 Complainant | N.Umesh Prabhu S/o N.Madhav Prabhu, Aged about 65 years, No.556 D, “Samriddhi”, Shanti Niketan Layout, Opp:Vysya Bank Colony, Arekere, Off:B.G.Road, Bangalore-560 076. Adv:Sri.U.R.Nayak |
Complaintno.474/2011 Complainant | Sudhir Prabhu S/o N.Umesh Prabhu, Aged about 36 years, No.556 D, “Samriddhi”, Shanti Niketan Layout, Opp:Vysya Bank Colony, Arekere, Off:B.G.Road, Bangalore-560 076. Adv:Sri.U.R.Nayak |
Complaintno.475/2011 Complainant | 1. Sudhir Prabhu S/o N.Umesh Prabhu, Aged about 36 years. 2. Vandana Prabhu W/o Sudhir Prabhu, Aged about 29 years. Both residing at: No.556D, “Samriddhi”, Shanti Niketan Layout, Opp:Vysya Bank Colony, Arekere, Off:B.G.Road, Bangalore-560 076. Adv:Sri.U.R.Nayak V/s. |
OPPOSITE PARTY/S | 1. M/s Aishvaryaa Diamond, No.119/18, 3rd Floor, 80 Feet Road, Siddai Puranik Road, Near Pavitra Paradise, Basaveshwaranagar, Bangalore-560 079, Represented by its Managing Partner Mr.L.F.Patil Ex-parte. 2. M/s Aishvaryaa Prestige, Township Promoters, No.119/18, 3rd Floor, 80 feet Road, Siddai Puranik Road, Near Pavitra Paradise, Basaveshwaranagar, Bangalore-560 079. Represented by its Managing Partner Mr.L.F.Patil. Ex-parte. 3. L.F.Patil, Managing Partner, M/s Aishvaryaa Diamond and M/s Aishvaryaa Prestige, No.119/18, 3rd Floor, 80 Feet Road, Siddai Puranik Road, Near Pavitra Paradise, Basaveshwaranagar, Bangalore-560 079. Adv:Gandhi Law Chambers. 4. Mr.Mithu Lal, Partner-M/s.Aishvaryaa Diamond and M/s Aishvaryaa Prestige, No.119/18, 3rd Floor, 80 Feet Road, Siddai Puranik Road, Near Pavitra Paradise, Basaveshwaranagar, Bangalore-560 079. Adv:Sri.Kamalji 5. Mr.Srinivas A.Naidu, Partner-M/s.Aishvaryaa Diamond and M/s Aishvaryaa Prestige, No.119/18, 3rd Floor, 80 Feet Road, Siddai Puranik Road, Near Pavitra Paradise, Basaveshwaranagar, Bangalroe-560 079. Ex-parte. |
| | |
| | | | |
COMMON ORDER
SRI. B.S.REDDY, PRESIDENT
These complaints are filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants seeking direction against the Opposite Parties (herein after called as O.Ps) to refund the initial sale consideration paid for the sites booked with interest at 18% p.a. and compensation of Rs.1,00,000/- along with costs of the proceedings on the allegation of deficiency in service on the part of the OPs.
Since Ops are common in all these complaints, the questions involved and the relief’s claimed being similar, in order to avoid the repetition of facts and multiplicity of reasoning’s all these complaints are stand disposed of by this common order.
2. The case of the complainants to be stated in brief is that:
OP1 being a registered Partnership Firm, Ops 3 to 5 are its Partners gave an advertisement calling upon the public to book approved residential sites in the proposed projects situated at Devanahalli to Hyderabad Road, Bangalore. Being carried away with the said advertisement each of these complainants applied for the sites by paying initial sale consideration of Rs.84,000/- except the complainant in complaint No.472/2011 who has paid an amount of Rs.88,000/- to OP1 represented by its Managing Partner OP3. OP-1 was unable to form the proposed layout and allot the sites, Ops issued the receipts acknowledging the receipt of the amounts and also executed the deeds of agreement incorporating the terms and conditions of the transaction. When the complainants realized that Ops are unable to form the layout, addressed letters to the Ops to refund the amount paid as initial sale consideration and also got issued legal notice. OP-4 had sent untenable reply stating that he is not liable to refund the advance amount and a counter reply was sent to the said reply notice. In spite of receipt of the legal notice, Ops neither complied the demand nor refunded the amount paid by these complainants. Thus the complainants felt deficiency in service on the part of the Ops and filed these complaints.
3. Ops 1, 2 & 5 remained ex-parte.
4. OP-3 filed version contending that he is not the partner of Op1 as he has retired from the firm on 01.04.2009, Ops 4 & 5 are the partners of Op1, hence he is not liable to repay the amount. OP3 admitted the fact that these complainants entered into an agreement to purchase sites in the project proposed M/s Aishvaryaa Diamond and he as a Managing Partner executed the agreement deeds. Since he is retired from the firm and while handing over all the accounts from the firm and also original documents transferred all lands which were standing in his name to the firm and continuing partners. Thus it is prayed to dismiss the complaint.
5. OP4 filed version contending that he had not entered into an agreement of sale with the complainants and he was not partner at the time of execution of the agreement of sale. He had not received any consideration amount, therefore he is not liable to refund the amount, there is no any deficiency of service on his part. It is contended that the complainants have not paid the full consideration amount and Op has intimated them regarding the formation of the layout registration of the site but the complainants are avoiding to get the registered sale deed by paying the balance sale consideration amount. Op4 is not a necessary and proper party. Hence, it is prayed to dismiss the complaint.
6. The complainants in order to substantiate complaint averments each of the complainants filed affidavit evidence and produced documents. OP3 filed affidavit evidence in support of the defence version and produced documents.
7. The complainants Filed Written Arguments.
8. Arguments on both sides heard.
9. Points for consideration are:
Point No.1:- Whether the complainants proved the
deficiency in service on the part of
the OPs?
Point No.2:- Whether the complainants are entitled
for the reliefs now claimed?
Point No.3:- To what Order?
10. We record out findings on the above points:
Point No.1:- Affirmative,
Point No.2:- Affirmative in part,
Point No.3:- As per final Order.
R E A S O N S
11. At the outset it is not at dispute that OP1 being a registered Partnership Firm represented by its Managing Partner of OP3 executed agreement deeds in favour of these complainants in respect of plots proposed to be formed in the project undertaken by them known as M/s Aishvaryaa Diamond situated at Devanahalli to Hyderabad Road, Bangalore and received initial sale consideration of Rs.84,000/- from all the complainants except complainant in complaint No.472/2011 who had paid Rs.88,000/- on 15.05.2008. Ops were unable to form the layout proposed as such these complainants demanded for refund of the amount by sending the registered letters and legal notices. The complainants have produced the documents relating to these transactions and the copies of the registered letters dt.06.01.2010, 21, 06.2010 and 09.11.2010 and also the reply sent by Ops. Though in the reply letters it is stated that the Aishvaryaa Diamond Project is an approved layout and all documents of this project were already collected by these complainants, the complainants were requested to come forward to get sale deed registered by making the balance payments, but Ops have not produced any material to show that there is any such approved layout and the sites are readily available for registration. In the defence version OP4 has taken the contention that the complainants have not come forward to get the sale deed registered by paying the balance consideration but not produced any material to show that there is any approved layout formed. Therefore, we are unable to accept the defence that these complainants were not ready to pay the balance sale consideration and get the sale deed registered.
12. When Ops were not in a position to form the layout, it would have been fair enough on their part to refund the initial sale consideration received from these complainants. The act of Ops neither forming the layout and allotting the sites nor refunding the amount received towards initial sale consideration, amounts to deficiency in service on their part.
13. OP3 has produced the copy of the reconstitution of partnership deed in support of the defence that he has retired from the OP1 Partnership Firm on 01.04.2009. After going through the said partnership reconstituted deed it becomes clear that only OP4 & 5 continued the partners of Op1 Firm and OP3 has retired from the partnership. The continuing partners OP4 & 5 had undertaken the discharge of the liability of the OP1 firm. In view of the same Ops 4 & 5 are liable to refund the amount with interest at 18% p.a. by way of compensation. OP2 is not a party to the agreement and there is no any privity of contract between the complainants and OP2. Accordingly, we proceed to pass the following:
O R D E R
The complaints filed by the complainants are allowed in part.
OP1, OP4 & OP5 are directed to refund an amount of Rs.84,000/- with interest at 18% p.a. from the date of respective payments, till realization along with litigation cost of Rs.2,000/- to each of the complainants in complaint No.471, 473, 474 & 475/2011.
Ops 1, 4 & 5 are directed to refund an amount of Rs.88,000/- to the complainant in complaint No.472/2011 with interest at 18% p.a. from 15.05.2008, till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.
OPs to comply the order within four weeks from the date of this order.
The complaint against OP2 and OP3 dismissed.
This original order shall be kept in the file of the complaint No.471/2011 and a copy of it shall be placed in other respective files.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 23rd day of APRIL– 2011.)
MEMBER PRESIDENT
CS.,
