BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 10^th DAY OF AUGUST 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties.1 to 3 (herein after referred as OP) with a prayer to direct the OPs.1 to 3 to execute the sale deed in respect of the site allotted to her by receiving the balance amount of Rs.33,750/- or in the alternative to refund the amount already paid by her along with interest.

2. The brief averments made in the complaint are as under:

The complainant became the member of “Sree Balaji Township Welfare Association”.  OP-1 entered into sale agreement with land owners at Shivanapura and Gowdahalli villages near Adikermaranahalli, Tumkur Main Road for the purpose of forming a layout.  OP-1 nominated OP-2 as President of ‘Sree Balaji Township Welfare Association’.  Subsequently both OP-1 & 2 entered into MOU with OP-3 for development of the layout on 15.04.2004.  OP-3 thereafter collected further instalments from the members and also issued a letter of allotment of site bearing No.310 in favour of the complainant.  The complainant has paid the entire amount for which the OPs have issued her receipts.

The OPs issued a letter to the complainant to arrange for the balance amount and get the site registered in her favour and accordingly the complainant paid the remaining balance amount to the OPs under receipt.  However the OPs failed to execute the sale deed in respect of the site allotted to her despite her repeated requests and personal visits to their office.  The OPs are trying to alienate the sites in favour of other persons in view of the appreciation of the value of the sites.  When the OPs failed to execute the sale deed, she got issued a legal notice on 26.04.2013.  The OPs failed to comply with the demand made in the legal notice and also failed to respond the same.  OPs have failed to discharge their duties nor the commitment made by them to the complainant and other members of the society.

For the aforesaid reasons, the complainant prays for an order directing the OPs to execute the registered sale deed in her favour in respect of site No.310 allotted in her favour by receiving the balance amount of Rs.33,750/- from her or refund with the amount already paid by her together with interest and costs of this proceedings.

3. OPs.1 & 3 despite service of notice, failed to appear and contest the complaint.  OP-2 appeared through his advocate and filed his version contending in brief as under:

This Forum has no jurisdiction to entertain the present complaint.  The civil court alone is competent to decide the dispute raised by the complainant.  The complainant is also not a ‘consumer’ and she cannot invoke the jurisdiction of this court.  This OP is not aware of truth or otherwise of the allegations made against OPs.1 & 3 and is also not aware of the agreement reached between the complainant and OPs.1 & 3.

There is no privity of contract between the complainant and OP-2.  If at all any such contract the complainant has to enforce the said contract in a civil court and not in this Forum.  The complaint is barred by limitation and on this ground alone the complaint is liable to be dismissed.  This OP has not received any money from the complainant at any point of time and all the allegations made against this OP are not maintainable.

For the aforesaid reasons, the OP-2 prays for rejection of the complaint with costs.

4. In view of the various contentions raised in the complaint as well as in the version, the points that arise for our determination are as under:

5. The complainant to substantiate the allegations made in the complaint, filed her affidavit by way of oral evidence likewise the OP-2 has filed his affidavit by way of evidence.  Written arguments were filed by both the parties.

6. Heard the oral arguments submitted on behalf of the complainant.  OP-2 failed to submit any oral arguments.

7. Our answers to the above said points are as under:

REASONS

8. For the sake of gravity and to avoid repetitions, point Nos.1 & 2 have taken up together with discussions.

9. The complainant to substantiate that she became the member of “Sree Balaji Township Welfare Association” produced the copy of membership card bearing No.0474 which confirms that she became the member of said ‘Sree Balaji Township’.  The complainant has produced the receipt dated 1^st August 1995 issued by OPs.1 & 3 for having received membership fee of Rs.5,000/- from her.  During the course of arguments the learned counsel for the complainant submitted that the complainant paid the price of the site to be allotted to her, in instalments beginning from 01.08.1995.  To substantiate the same, the complainant has produced the statement of accounts issued by ‘Sree Balaji Township’ which indicates the amounts paid by the complainant to the OPs on various dates either by way of demand draft or cash towards instalments.

10. The complainant has also produced the copies of the proposed residential layout plan of “Sree Balajinagar” at Sy. Nos.59, 71 to 75, 137, 139, 141 and 142 of Gowdahalli and Shivanapura Villages, Dasanapura Hobli, Bangalore North Taluk to substantiate that the said residential layout under the name and style ‘Sree Balajinagar’ was developed and a layout was also formed by the OPs.

11. It appears that OPs.1 & 3 who initiated ‘Sree Balaji Township’ Project could not complete the work undertaken by them despite collecting huge amount from various members including complainant towards completion of the layout.  Therefore, OPs.1 & 3 entered into an MOU with the OP-2, who is proprietor of M/s. E.K Land Developers, for the purpose of completion of the development of the said layout.  The complainant has produced the copy of memorandum of understanding dated 15.01.2004 entered into between OPs.1 & 3 with OP-2.  The said MOU sets out the terms and conditions of the development of the said layout and for allotment of the sites to the members and also regarding the registration of the sites in favour of the members by collecting the balance amount, if any.  In pursuance of the said MOU entered by him with OPs.1 & 3, OP-2 has allotted site No.310 in favour of the complainant by his letter dated 19.01.2004.  The copy of which is produced.  In the said allotment letter, the OP-2 has acknowledged the receipt of Rs.46,250/- already paid by the complainant and called upon her to pay balance amount of Rs.33,750/- towards cost of the said site measuring 30’x40’ within 9 months together with increased price of Rs.35,000/- as decided in the meeting held between OPs.1 to 3, towards full and final settlement of said sital value totaling to Rs.1,15,000/-.  Further through the said letter the OP-2 called upon the complainant to make necessary arrangements to pay an amount of Rs.20,000/- by way of account payee cheque in favour of E.K Land Developers.

12. Thus from the terms and conditions of the MOU dated 15.01.2004 and allotment letter dated 19.01.2004, it is evident that OP-2 has taken up on him the responsibility of completing the layout plan of ‘Sree Balaji Township’ and further undertook the responsibility of collecting the balance amount of each and every member and to execute the necessary sale deed in respect of the site allotted to each one of them.  Further the minutes of the meeting held in respect of Balaji Project on 11.01.2004 at 11.00 A.M at the residence of OP-2 situated at Adakimaranahalli, the copy of which is produced, makes it abundantly clear that the members of the said ‘Sree Balajinagar’ Project shall make all necessary correspondence with OP-2 only regarding the sites and complete responsibility of allotment of sites, execution of the sale deeds by collecting the balance amount from the members all rest upon the OP-2 only.  Thus from the documents referred to above, it is evident that in pursuance of the MOU dated 15.01.2004, OP-2 is responsible for completion of the layout, allotment of sites to the members and execution of the sale deed in favour of each member by collecting the balance amount, inclusive of the revised amount of Rs.1,15,000/- from each of the member towards the price of site measuring 30’x40’.  Therefore, we don’t find any basis in contention of OP-2 that there is no privity of contract between himself and the complainant.  OP-2 in pursuance of the terms and conditions of the MOU as well as minutes of the meeting, referred to above, is responsible for execution of the sale deed in favour of the complainant in respect of site No.310 as mentioned in the allotment letter referred to above, by collecting the balance amount of Rs.33,750/- plus Rs.20,000/- as demanded by him in his letter dated 19.01.2004, referred supra.

13. From the allegations made in the complaint and the affidavit filed by the complainant by way of evidence and other materials placed on record, the complainant was continuously persuading the OPs.1 & 3 for the execution of the sale deed in her favour in respect of site No.310.  For one or the other reason the OPs were postponing the execution.  Therefore, ultimately the complainant was compelled to issue a legal notice to the OP through her advocate calling upon them to execute the sale deed in respect of site No.310 at an early date.  In view of the facts and circumstances as narrated in the complaint, affidavit and other materials placed on record, we cannot said that the present complaint is barred by limitation.  There is no reason to believe that the complainant either did not approach the OP on time for getting the sale deed or failed to pursue the OP for execution of the sale deed in her favour.  Since after receiving the letter of allotment, the copy of the minutes of the meeting dated 11.01.2004, copy of the MOU dated 15.01.2004 the complainant is continuously pursuing the OPs to execute the sale deed in respect of site No.310 allotting in her favour.  Therefore by any stretch of imagination, it cannot be said that the present complaint is barred by limitation.

14. The conduct of OP-2 as well as OPs.1 & 3 in not complying the demands made by the complainant for execution of the sale deed in her favour in respect of site no.310 amounts to deficiency of service.  In the given facts and circumstances of the case, the complainant being the member of the said Balajinagar housing project falls under the definition of ‘consumer’ as defined under the Consumer Protection Act, 1986.  The OPs being the promoters of the said housing project having collected instalments from the complainant and other members of the said project are the service providers.  Therefore, we are of the opinion that this Forum has every jurisdiction to entertain the present complaint.  This is not a suit filed for enforcing any contract such as agreement of sale.  Therefore, the complainant cannot be asked to approach the Civil Court for redressal.  OPs.1 and 3 have received all the initial instalments from complainant.  Therefore they are also answerable to the claim made by complainant.  The OPs.1 to 3 jointly and severally responsible for answering the demands made by the complainant and they are responsible either to execute the sale deed in favour of the complainant in respect of the site No.310 by collecting the balance amount or refund the entire amount received by them till today together with interest.  Accordingly point Nos.1 to 3 are answered.  For the aforesaid reasons, we proceed to pass the following:  

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs.1 to 3 are hereby directed to execute the registered sale deed in favour of the complainant in respect of site No.310 by receiving the balance amount as mentioned in the letter dated 19.01.2004 issued by OP-2 or in the alternative refund the entire amount paid by the complainant along with interest @ 12% p.a from the date of receipt till the date of realization together with litigation cost of Rs.3,000/-.

OPs are directed to comply the order passed by this Forum within six weeks from today.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 10^th day of August 2015)

MEMBER                             MEMBER                      PRESIDENT

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