Karnataka

Bangalore 4th Additional

CC/15/125

Sri. K.V.S. Lakshmikanth - Complainant(s)

Versus

M/s. Bluevalley Properties Private Limited - Opp.Party(s)

Ravishankar R.H

13 Jun 2018

ORDER

Complaint filed on: 23.01.2015

                                                      Disposed on: 13.06.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.125/2015

DATED THIS THE 13^th JUNE OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Sri.K.V.S.Lakshmikanth

S/o Sri.Kothapalli Kama

Raja Rao, Aged about 39 years, R/at no.A14, Birch,

Tata Sherwood Apartments, Basavanagar Main Road, Rasanna Colony,

Vibhutipura,

Bengaluru-37.

 

By Adv.Sri.Ravishankar.R.H     

 

V/s

Opposite party/s

Respondent/s:-

 

M/s.Bluevally Properties Pvt. ltd., A company incorporated under the provisions of companies Act 1956 having its registered office at Blue Valley Celestial,

No.41, Nandidurga Main Road, Jayamahal Extension, Bengaluru-46.

Rep. by its Managing Director Sri.K.Suryanarayana Raju

 

By Adv.Sri.Shreepadaraja.G

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to refund an amount of Rs.13,33,000/- collected from the Complainant towards entire sale consideration for allotting a residential site measuring 2400 sq.ft in Tranquil Arc with interest at 18% p.a. from 01.04.10. Further direct it to pay compensation of Rs.3 lakhs towards mental agony with interest at 18% p.a. with cost and to grant such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, he was desirous of purchasing a residential site in Bengaluru during the year 2008. Thus, he came in touch with Op who represented that it was developing a residential layout “Tranquil Arc” (hereinafter referred as the said layout) in the land situated at Addevishwanthapura village, Hesaraghatta hobli, Bengaluru north taluk, Bengaluru rural district (hereinafter referred as the said land). It is the case of the Complainant that, sale agreement dtd.04.11.08 was entered in to between both the parties.  Op in the said agreement promised to form and develop several residential plots in the said layout and allot a plot measuring 2400 sq.ft to the Complainant along with all the facilities. The total sale consideration for the Op to sell the said residential plot was fixed at Rs.12,97,000/-. Accordingly, the Complainant paid an amount of Rs.6 lakhs to Op as token advance for allotting him the said site. The Complainant further submits that, Op started developing various extents in the said land during the year 2009. Since there was delay in commencement of the development, one of the site purchaser Sri.Rama Sudhakar chose not to purchase a residential plot in the said layout and demanded back the advance amount of Rs.7,33,000/- paid to Op. Adhering to the request of Op, the above said amount paid back to Sri.Rama Sudhakara by the Complainant and an amount of Rs.7,33,000/- was credited to the account of the Complainant with Op on 01.04.14. Though the sale consideration in respect of allotting a residential plot in the said layout was fixed at Rs.12,97,000/-. Op illegally started demanding additional amounts from the Complainant for various reasons. If Complainant did not adhere to this, Op would not allot him a residential site. Left with no other option, Complainant paid an additional amount of Rs.36,000/- during the year 2010. The Complainant further submits that, during the year 2011, Op informed the Complainant that the development works in the said layout was completed and informed the Complainant that he was allotted site bearing no.168. However during August 2011, Op once again informed the Complainant that he was allotted site no.170 instead of site no.168. After visiting the site, the Complainant was not satisfied with the site no.170 allotted to him and requested Op to allot him an alternative site. But by email dtd.29.09.11, Op directed the Complainant to go ahead with registration of site no.170 since there were no alternative sites available in the said layout.  Complainant met the officials and officers of Op several times seeking conveyance of the site for which he had paid full sale consideration. However, Op kept on postponing the same on one or the other pretext. On 11.03.14, Op informed the Complainant that, he had not paid entire sale consideration. On 12.03.14 by email, Complainant expressed his shock and surprise and made it clear that, he had paid the entire sale consideration. Op by email dtd.17.03.14 accepted that there was some confusion in its accounts department and the same has been sorted out and informed the Complainant to meet the officials of the Op in person. The Complainant through emails, telephone and personal visits informed the Op to make arrangement for registration of a residential site as agreed in the sale agreement. However, the said exercise of the Complainant provided futile due to the callous attitude of the Op. In this context, he issued legal notice dtd.02.09.14, but till date there is no reply. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op did appear and filed version denying the contents of the complaint. The sum and substance of the version of the Op are that, it admits in respect of, both parties entered in to sale agreement for the residential plot to be allotted to the Complainant in the said layout. Further, it submits that, the claim made by the Complainant is stale as such is hit by limitation; as could be seen from the pleadings in para 10 & 11 of the complaint, the alleged cause of action arose in 2008 and the complaint is filed on 2015. Therefore the complaint should fail on this ground alone. Further it is settled position of law that once the limitation starts it cannot renew or give a fresh lease, therefore mere issuance of the legal notice cannot give raise to fresh cause of action or extend the limitation thus the complaint fails on this ground alone.   Further submits that, this forum has no jurisdiction to recover the monies under an email communications cancelling the sale agreement and return the alleged sale consideration. Further, complaint is made to hoodwink the payment of the total sale consideration for the site that may be alloted to the Complainant upon payment of the market value of the price or consideration for the site, in absence of such payments, the complaint is liable to be set-aside as the same is not maintainable. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A17. The Managing Director of Op filed affidavit evidence and produced 6+7 documents. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether the Complainant proves deficiency of service on the part of Op, if so, whether he entitled for the relief sought for ?    
2. What order ?

                   

           

 

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

 

Point no.1: In the Affirmative  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  We have briefly stated the contents of the complaint as well as the version filed by the Op. the Complainant has sought for, to pass an order directing the Op to refund an amount of Rs.13,33,000/- collected from him towards entire sale consideration for allotting a residential site measuring 2400 sq.ft with interest at 18% p.a. from 01.04.10 till the date of realization and also claimed compensation of Rs.3 lakhs towards mental agony etc., with cost of litigation. The entire amount so far paid by the Complainant has specifically denied by Op, stating that, he has paid only an amount of Rs.6 lakhs. In this context, Op issued notice to the Complainant. Calculation arrived at by the Op in respect of the initial amount paid by the Complainant has been shown by Op in document no.4 i.e. application form. In this context, Provisional site allotment certificate has been issued, which is at sl.no.5 of the list of documents dtd.06.03.18. According to the statement of accounts which is at sl.no.7 in the said list, inkpage at 9, wherein the balance amount payable by the Complainant is Rs.6,97,000/-. But the say of the Complainant is that, Op to sell the said residential plot was fixed the total sale consideration to Rs.12,97,000/-, out of which, he had already paid Rs.6 lakhs. One Sri.Rama Sudhakar was one such person who also agreed to purchase the site and paid the amount of Rs.7,33,000/- to Op. However, since there was delay in commencement of the development work by the Op, Sri.Rama Sudhakar chose not to purchase a residential plot in the said layout and demanded back the advance amount paid to the Op. This plea is supported by Ex-A6 produced by the Complainant. Adhering to the request of Op, the said amount paid by Rama Sudhakar was paid back to Sri.Rama Sudhakar by the Complainant and an amount of Rs.7,33,000/- was credited to the account of the Complainant with Op on 01.04.14. This plea is supported by Ex-A7. We have placed reliance on the contents of Ex-A7, wherein an amount of Rs.7,33,000/- has been adjusted in the name of the Complainant. In this context, the say of Op is that, there was some confusion in their accounts department regarding the amount transferred to the Complainant’s account from his friend and that has been sorted out. This is substantiated by the Op by placing reliance on the email text at Ex-A11. If Op has meticulously gone through the contents of Ex-A7 which is email, it ought not to have issued demand notice to the Complainant for the remaining amount. Looking to the entire text of the email, Complainant has already paid an amount of Rs.13,33,000/- including additional amount of Rs.36,000/-.

 

Now, coming to the termination clause of the agreement in respect of refund of the money paid by the Complainant. In this context, we placed reliance on the contents of original agreement of sale dtd.04.11.08, wherein at page no.5 clause no.2 reads thus:

2] The purchaser can ask for returning the money paid by him to the first party before registration along with 15% simple interest. The money will be returned within 30 days of receiving a written request.

 

8. If the above contents are strictly construed, liberty is given to the Complainant to get return the money so far paid by him. The terms & conditions incorporated in the sale agreement marked as Ex-A1 are not denied by Op. The only contention taken by Op is that, Complainant has paid only Rs.6 lakhs, but the remaining amount he did not pay. Hence, he become defaulter. This contention has no legs to stand as the said Sri.Rama Sudhakar has already paid the amount of Rs.7,33,000/- for allotment of site to him. Since he did not interest to purchase the said site, hence by mutual consent, amount so far paid by Sri.Rama Suchakar has been credited in the Complainant’s account maintained by the Op in respect of purchase of plot.  So in all, Complainant has paid an amount of Rs.13,33,000/- including additional amount of Rs.36,000/-. But the Complainant has restricted the claim for refund of total sale consideration of Rs.13,33,000/- for which there is no legal impediment by virtue of the specific clause incorporated in the sale agreement if the formation of the site being delayed. In that event, an option is left open to the Complainant either to seek for allotment of site or in the alternative he can seek refund of the money so far paid by him in the light of the following reported decisions:

1)  EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund. In the instant case, the Complainants had sought for refund of the amount.

This decision again followed by NCDRC in the decision reported in 2018 (1) CPR 436 (NC) in the case of Vatika Limited., V/s Shaleen Chugh and Anr. Wherein the important point is stated as under:

The act of the Petitioner in not refunding the amount deposited by the Complainants despite not having completed the project on time and further not even having communicated the promised date of delivery of possession, amounts to deficiency in service.

 

2) 2018 (1) CPR 237 (NC) in the case of Pradeep Gupta and Ors. V/s Unitech Hi-Tech Developers Ltd., wherein it is held as under:

Consumer Protection Act, 1986-Section 21-Real Estate-Booking of residential flat-Denial of possession despite payment-Complainants are seeking refund of entire amount paid by them along with compensation in form of interest-Opposite Parties shall refund entire principal amount to Complainants along with compensation in form of 10% simple interest-Opposite Parties shall pay Rs.25,000/- as cost of litigation in each complaint.

3) I (2015) CPJ 107 (Del.) in the case of Sandeep Lohia, Ashwini Kumar Lohia, Jitesh Kumar Lohia V/s Parsvnath Developers Ltd., wherein it is held as under:

Consumer Protection Act, 1986-Sections 2 (1)(g), 2 (1)(r), 14(1)(d), 17-Housing-Flat Buyer Agreement-25% of total value of flat deposited-Provisional allotment letter issued-Non-delivery of possession-Deficiency in service-Unfair trade practice-Development at the site shows that no money was invested by OP-Complainants have placed on record the photographs of site along with copy of recent newspaper publication showing that only foundation of tower had been constructed-OP has been making misuse of buyers’ hard earned money-OP is guilty of breach of contract-Refund of principal amount along with interest @ 18% p.a. directed to each of Complainant-compensation @ Rs.4.5 lacs awarded for mental agony, anguish and frustration- litigation cost @ Rs.2 lacs awarded-directions issued.

 

9. Accordingly, we come to the conclusion that, Complainant is entitled for refund of Rs.13,33,000/-. Now the question that crops up for our consideration is with regard to the mental agony, damages etc., Complainant has sought for Rs.3 lakhs. The Hon’ble National Commission as well as Hon’ble Supreme Court held in Catena of judgments that, if the interest is charged on the amount payable by way of compensation, ends of justice would met sufficiently. In this context, if the agreed rate of interest is fixed at 15% p.a. by way of compensation, we hope grievance of the Complainant will meet. Accordingly, the Complainant is entitled for an amount of Rs.13,33,000/- with agreed rate of interest at 15% p.a. from 01.04.10 till the date of realization. Further Complainant is entitled Rs.5,000/- being cost of litigation. Accordingly we answered the point no.1 in the affirmative.

 

         10. Point no.2: In the result, we passed the following:

 

 

ORDER

 

          The complaint filed by the Complainant is allowed.  

 

2. Op is directed to refund an amount of Rs.13,33,000/- to the Complainant being the amount paid towards purchase of the plot/site with the agreed interest at the rate of 15% p.a. by way of compensation from 01.04.10 till the date of realization.

 

3. Op is also directed to pay Rs.5,000/- being the cost of litigation to the Complainant.

 

4. We also direct Op to realize the said amount within six weeks from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 13^th June 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.K.V.S.Lakshmikanth, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Original sale agreement dtd.04.11.08
Ex-A2	Legal notice dtd.02.09.14
Ex-A3 & A4	Original postal receipt and postal acknowledgement
Ex-A5 to A17	Emails dtd.10.03.10, 08.03.10, 28.09.11, 29.09.11, 12.03.14, 17.03.14, 31.03.14, 06.05.14, 26.05.14, 07.06.14, 23.06.14, 07.07.14

 

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.K.Suryanarayana Raju, who being the Managing Director of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Doc.no.1	Approval intimation and demand letter dtd.15.12.09
Doc.no.2	Email dtd.17.03.14
Doc.no.3	Plot allotment letter dtd.20.08.11
Doc.no.4	Application form dtd.14.08.07
Doc.no.5	Demand letter dtd.13.10.08
Doc.no.6	Provisional site allotment certificate
Doc.no.1	Approval intimation and demand letter to Complainant dtd.15.12.09
Doc.no.2	Email to Op to pay balance amount dtd.29.10.08
Doc.no.3	Demand letter dtd.13.10.08
Doc.no.4	Application form
Doc.no.5	Provisional site allotment certificate
Doc.no.6	Payment receipts
Doc.no.7	Statement of accounts and emails

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT